Jaswant Singh v. The State of Uttarakhand

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI AND HON'BLE SRI JUSTICE RAKESH THAPLIYAL WRIT PETITION (M/S) NO. 2668 OF 2021 25TH SEPTEMBER, 2023 Jaswant Singh

…..Petitioner. Versus State of Uttarakhand & others

….Respondents. Counsel for the Petitioner : Mr. Jitendra Chaudhary and Mr.

Suhail Ahmed Siddiqui, learned

counsels. Counsel for the Respondent No.1 : Mr. Amarendra Pratap Singh,

learned Additional Advocate

General. Counsel for the Respondent No.5 : Mr. S.S. Chauhan and Mr.

Pradeep Joshi, learned counsels. The Court made the following: JUDGMENT:(per Hon'ble The Chief Justice Sri Vipin Sanghi)

We have heard learned counsels and proceed to dispose of this writ petition.

2.

The petitioner has preferred the present writ petition to seek the following reliefs:- "(i) Issue a writ, order or direction in the nature of certiorari, calling for the original record and pleased to quash the impugned tender notice no.6130/Jalasaya/ 2021-22 Dehradun dated 18th November 2021 (Annexure-1) along with corrigendum dated 02nd December 2021 (Annexure-2) issued by the respondent no.2 i.e. Secretary Uttarakhand State Matasaya Palak Vikas Abhikaran Dehradun.

(ii) Issue a writ, order or direction in the nature of mandamus, directing and commanding the respondent fisheries board to the effect that it shall issue fresh tender notice in respect to Baur & Haripura Reservoir situated in District Udham Singh Nagar for awarding fishing contract for

next 05 years only in accordance with the Uttarakhand State Water Management, Fisheries and Angling Rules 2013".

¶3The case of the petitioner is that respondent no.2 issued the impugned tender Notice No. 6130/Jalasaya/ 2021-th22 Dehradun dated 18 November 2021, to which a ndcorrigendum was issued on 02 December 2021. The said tender invited bid from the interested bidders for providing fishing rights at Baur & Haripura Reservoir in District Udham Singh Nagar. The tenure of the contract was stated to be for ten years, i.e. from 2021-22 to 2030-31. The tabulation contained in the tender, which, inter alia, described the period of tender reads as follows:- ॿ० जलाशय जनपद / ठेके की आरि?त बयाने की ऑनलाईन का नाम मਔल अविध धनरािश धनरािश िनिवदा जमा करने की अ्?म ितिथ

¶1बौर एवं उधमिसंहनगर वष१ ₹36.08 लाख ₹3.608 लाख िदनांक : 2021-6.12.2021 हौरपुरा / कु मायूँ 22से वष१ समय: सायं जलाशय मਔल 2030-2. 05 बजे 96 क७ ज ₹36.00 लाख ₹3.60 लाख 31 तक दस वष१ योग ₹72.08 लाख ₹7.208 लाख

¶4The petitioner was aggrieved by the said tender on the ground that the tenure of the contract under the tender, which was stated to be ten years, was contrary to the rules framed by the State Government under the Uttarakhand Fisheries Act, 2003. The said Act, in Section 3(1), empowers the State Government to make the Rules for the purposes mentioned in the said Act. In pursuance of Section 3(1) of the

Act, the State Government has framed the Uttarakhand Fisheries Rules, 2013, on 25.10.2013. Rule 11 of the said Rules, inter alia, reads as follows:- "11. मैदानी ঴ेআ की निदयों के ठेकों की अविध पांच वष१ होगी और इसकी गणना आगामी 1 जुलाई से 30 जून तक की अविध को स्ʃिलत कर की जायेगी। ঋथम वष१ म७ यह अविध ˢीकृित की तारीख से ঋारʁ एवं 30 जून को समाɑ समझी जायेगी। ˢीकृत िनिवदा मूʞ म७ ঋितवष१ 10 ঋितशत की वृ्Ƞ आगिणत की जायेगी और तदनुसार िनिवदादाता Ȫारा संदेय होगी।" (emphasis supplied)

5.

In the same Rules, Appendix 6(1) again reiterates the same position in the following words:- ॿ० जल঴ेআ का नाम अनु৯ािवत िशकारमाही िविध परिमट/ लाईसे वैधता अविध बीटआवंटन की िविध िनिवदा माȯम से िनषेव अविध िशकारमाही के िनिषȠ ঴ेআ का ̾ थान

¶9मैदानी঴ेআ की निदयां समˑ माɊ िशकारमाही िविधयाँ पाँचवष१ खुली नीलामी के आधार पर 01 जुलाईसे 30 िसतɾर तक मȘ मेला आखेट पर पूण१ ঋितबɀ रहेगा।

¶1कुंभमेला ঴ेআ एवं अɊ धािम१क ̾ थलों के आस – पास

¶2िच्Ɏत ঋजनन ঴ेআ।

(emphasis supplied)

6.

Upon issuance of notices, respondent no.1 and respondent nos.2 to 4 have filed their counter-affidavits. The stand taken by the State in their counter-affidavit is that, the State had issued a Government Order on 18.11.2021-which also happens to be a date on which the tender, in question,

was issued, thereby fixing the tenure of government contracts for fishing rights as ten years. Clause 25 of the Government Order dated 18.11.2021 reads as follows:- "25-ठेके की अविध दस (10) वष१ होगी जबिक ঋथमतः ठेके दार के साथ पांच (05) वषॳ हेतु अनुबंध िन?ािदत िकया जायेगा अथा१त अनुबंध की अविध 05 वष१ होगी। यिद ठेके दार / सिमित ?ारा समी्ा से पूव१ या समी्ा के बाद म?ाविध म७ ठेका छोड़ िदया जाता है तो अिभकरण को ॽयी िव?ीय हॉिन के सापे् ठेके दार ?ारा जमा धरोहर धनरािश को ्ाज सिहत ज? कर िलया जाएगा और ठेके दार के िवॺ? अवशेष धनरािश का समायोजन उसकी ब॰क गारUCी से िकया जाएगा।" (emphasis supplied)

¶7We have inquired from learned counsel appearing for the State, as to how the said Government Order could have been issued in the teeth of Rule 11(1) of the 2013 Rules, framed by the State Government, under Section 3(1) of the Fisheries Act, aforesaid. There is no answer forthcoming.

¶8Pertinently, the Government Order dated

18.11.2021 does not purport to be an amendment to the Fisheries Rules, 2013, since the said Government Order does not even purport to have been issued in exercise of the rule making power of the State. The Fisheries Act, 2003 clearly sets out the procedure prescribed for the purpose of framing of Rules under Section 3(1). Section 3(2) states that the State Government may, by notification in the official gazette, apply the Rules. The Government Order dated 18.11.2021 is not claimed to have been gazetted. Moreover, Section 3(5) provides that every rule made under the Act shall be laid, as soon as may be after it is made, before the Legislative

Assembly while it is in session for a total period of not less than fourteen days which may be comprise in one session or in two or more successive sessions. It is, therefore, clear that the Government Order dated 18.11.2021, relied upon by the respondents to justify the issuance of tender for a period of ten years, is contrary to the existing Uttarakhand Fisheries Rules, 2013, and in particular, contrary to Rule 11(1) thereof. The said Government Order, being in the nature of executive instructions, cannot override the statutory rules. Consequently, neither the Government Order dated

18.11.2021 can be sustained, nor the action taken thereunder while issuing the tender, in question.

9.

We find the action taken by the respondent-State, even otherwise, to be completely mindless, for the reason that the same does not appear to be financially prudent on the part of the State. It is not the stand of the respondent-State, that the contractor, who is granted the fishing rights, has to make a substantial capital investment at the beginning of the contract, and therefore, the period of the contract needs to be increased to enable the successful contract to recovery its capital expenditure. Grant of contracts for such long periods of time as ten years, is bound to result in loss of revenue for the State in the long run, since the inflation would not be factored in when contracts are awarded for such large periods of time.

¶10We may also take note of the order dated

05.01.2022, passed by this Court, wherein the Court had observed as follows:- "Having regard to the facts & circumstances of the case, it shall be open to the respondents to award contract to the highest bidder, however, extension of contract beyond 5 years shall be subject to final outcome of the writ petition. As prayed, four weeks' time is granted to learned counsel for the respondent(s) for filing counter affidavit(s). Two weeks' time, thereafter, is allowed for filing rejoinder affidavit. List this matter in the month of March, 2022".

¶11We, therefore, quash the tender and the corrigendum in question. The contract awarded to respondent no.5 shall, accordingly, stand terminated. It shall be open to respondent no.5 to claim the refund of the excess amount from the State that respondent no.5 claims to have deposited for the unexpired period. The respondent-State shall initiate a fresh tender in accordance with the existing Fisheries Rules, 2013 without any delay.

¶12The writ petition stands disposed of in the aforesaid terms.

¶13Pending application, if any, also stands disposed of.

(VIPIN SANGHI, C.J.)

(RAKESH THAPLIYAL, J.) Dated: 25th September, 2023 NISHANT