Meghalaya High Court
Shri Maiantis Mawlot vs Khadc on 27 September, 2016
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
WP(C) No.113 of 2016 Shri Maiantis Mawlot ..... Petitioner
- Versus -
Khasi Hills Autonomous District Council ..... Respondents
and others
Date of Order: :: 27th September 2016
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE Shri HS Thangkhiew, Senior Advocate with Shri P. Nongbri, Advocate, for the petitioner Shri B. Bhattacharjee, Advocate, for the respondents No. 1, 2 & 3 Shri S. Sen, Advocate, for respondent No. 4 Shri N D Chullai, Senior Government Advocate AFR BY THE COURT:
In this writ petition, the petitioner, while asserting that he was appointed as an Agent by the Khasi Hills Autonomous District Council (hereinafter referred to as „KHADC‟ or „the Council‟) „for detecting illegal trading by non-tribals‟ and while further asserting that his agency was lastly renewed for a period of two years from 01.04.2015 to 31.03.2017, has assailed the orders issued by the Executive Committee of KHADC on 30.03.2016 and 31.03.2016 (Annexures 9 and 10), whereby his agency was terminated w.e.f. 31.03.2016 for the alleged engagement of new Agent for the task in question, in terms of the Notice Inviting Tender [„NIT‟] dated 22.02.2016.2
WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC Put in a nutshell, the case of petitioner is that the respondents related with KHADC have terminated his agency in a wholly illegal, arbitrary and unfair manner and squarely contrary to the stipulations in the existing agreement between the parties. Per contra, the contesting respondents would assert that the earlier engagement of the petitioner and extension of the term of his engagement had been without open invitation to offers; and such kind of arrangement having been disapproved by this Court in the order dated 25.09.2014 as passed in WP(C) No.133 of 2014 and WP(C) No.138 of 2014, KHADC has rightly invited the offers and has rightly appointed the respondent No.4 as its Agent w.e.f. 01.04.2016.
Although the basic issue raised in this petition has only been on the legality and validity of the procedure adopted by KHADC in terminating the agency of the petitioner but then, looking to the nature of agency sought to be suggested by the parties, the learned Senior Government Advocate was also called upon to address and to assist the Court. In response, the learned Senior Government Advocate has made elaborate submissions that the entire exercise of appointment of any Agent like the petitioner or the respondent No.4 by KHADC was illegal and unauthorised. As permitted, the learned Senior Government Advocate has also placed on record a note on his submissions.
The relevant factual aspects of the matter could be taken note of as follows: The petitioner has averred in the petition that as empowered by Paragraph 10 of Sixth Schedule to the Constitution of India, to make regulations for control of money-lending and trading by non-tribals, KHADC has enacted the Khasi Hills District (Trading by 3 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC Non-Tribals) Regulation, 1954 [hereinafter referred to as „the Regulations of 1954‟] and has also framed the rules thereunder, being the Khasi Hills Autonomous District (Trading by Non-Tribals) Rules, 1959 [hereinafter referred to as „the Rules of 1959‟]. The petitioner has alleged that for the operation of the Regulations and as per the provisions contained therein, the respondent KHADC has appointed the officers and other staff to carry out the necessary work of checking and controlling the trading by the non-tribals in its area; and in that sequence, he was engaged „as an agent to identify/detect non-tribal traders conducting business without a valid trading license at Nongshram Shahlang and other areas in West Khasi Hills‟ under the appointment orders dated 19.01.2010 and 25.01.2010. The petitioner has further asserted that thereafter, under a Memo dated 07.12.2012 and an agreement of the even date, his appointment was extended/renewed until 31.03.2015; and he was working „as agent to identify/detect non-tribal commercial transport operators conducting business without a valid trading license in Nongshram Shahlang and other areas in West Khasi Hills‟. The petitioner has placed on record a copy of the said agreement as Annexure 4 to this petition and has particularly referred to Clause 6 thereof to assert that it was obligatory on KHADC to inform him, should there be any legal developments or changes in the Council‟s policy or implementation of new rules; and to afford him an opportunity to represent.
Before proceeding further and at this juncture, a marked difference in the basic objects of agency, as contained in the earlier orders by KHADC dated 25.01.2010 and those contained in the later 4 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC order dated 07.12.2012 may be noticed. The relevant part of the earlier order dated 25.01.2010, on the objects and purpose the agency of petitioner had been as under:
"To, Shri M. Mawlot New Nongstoin, West Khasi Hills.
Subject: Agent to identify and check trading by non-tribal traders without Trade license at Nongshram and Shahlang area, (Shahlang- Riangdo-Athiabari road), West Khasi Hills.
In continuation to this office letter dt.19.1.2010, I am directed to convey that the Executive Committee, Khasi Hills Autonomous District Council has engaged and authorised you as agent to identify/detect non-tribal traders conducting business without valid trade license at Nongshram and Shahlang area, (Shahlang-Riangdo-Athiabari road), West Khasi Hills and to impose fine/penalty on such illegal non-tribal traders. You are therefore allowed to start the work with immediate effect and for a period of one year under the following terms and conditions:-
1. That you are authorised to detect the illegal non-tribal traders conducting business without trading license at Nongshram and Shahlang area and to impose fine/penalty as provided under the United Khasi-Jaintia Hills District (Trading by non-tribals) Regulation, 1954, as amended............."
However, in the communication dated 07.12.2012, the objects of the agency of petitioner were stated differently and the petitioner was allegedly appointed to identify and detect „non-tribal commercial transport operators‟. The said letter dated 07.12.2012 contained the stipulations as under:-
"To, Shri M. Mawlot New Nongstoin, West Khasi Hills.
Subject: Agent to identify and detect non-tribal commercial transport operators conducting business illegally without valid trading license at Nongshram and Shahlang area, (Shahlang-Riangdo-Athiabari road), West Khasi Hills.
In continuation to this office letter dt.31.1.2010, I am directed to convey that the Executive Committee, Khasi Hills Autonomous District Council is pleased to extent your appointment as authorised agent to identify/detect non-tribal commercial transport operators conducting 5 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC business illegally at Nongshram and Shahlang area at Mawpon-H (5 kilo Shahlang-Riangdo-Athiabari road), without valid trade license from this office under the following terms and conditions:-
1. That you are authorised to identify and detect the illegal trading by non-tribal commercial transport operators conducting business without trading license at Nongshram and Shahlang area, (Shahlang-
Riangdo-Athiabari road) West Khasi Hills."
The same stipulation was reflected in the agreement dated 07.12.2012, the first paragraph whereof reads as under:
"1. That the First Party authorised the Second Party as Agent to identify/detect non-tribal commercial transport operators conducting business illegally without trade license on the date of this indenture and on successful completion of the terms and conditions laid down herein this Agreement."
Clause 6 of the aforesaid agreement dated 07.12.2012, which is relied upon by the petitioner to assert that it was obligatory on KHADC to afford him an opportunity to represent, if there were any legal developments or changes in the Council‟s policy or implementation of new rules, reads as under:
"6. That during the subsistence of the Agreement, should there be any legal developments or changes in the Council‟s policy, or implementation of new Rules by the Council, the Second Party shall be informed to present his case. However, the First Party reserves the right to cancel or withdraw this Agreement in case the Second Party violates any of the terms or conditions laid down in this Agreement or any thing detrimental to the interest of the Council and all expenses incurable for that matter shall be borne by the Second Party without any claim for damage or compensation from the First Party."
The case of the petitioner is that he continued to work under the agreement aforesaid and thereafter, by an order dated 10.02.2015, his engagement to identify/detect illegal trading by non-tribal commercial transport operators was extended for a period of 24 calendar months with annual deposit of Rs.75,000/-. The said order dated 10.02.2015 reads as under:-
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WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC "To, Shri M. Mawlot New Nongstoin, West Khasi Hills.
Subject: Renewal/extension of the appointment as authorised Agent to identify/detect illegal trading by non-tribal commercial transport operators conducting business without trade license at Nongshram and Shahllang area, (Shahllang-Riangdo-Athiabari road), Nongstoin, West Khasi Hills.
In continuation to this office letter No.DC.RBF/VIII/4/2010-15/51 on the subject mentioned above, I am directed to inform you that the Executive Committee, Khasi Hills Autonomous District Council, has considered the extension/renewal of your appointment as authorised Agent to identify/detect and impose fine on illegal trading by non-tribal commercial transport operators with effect from 1st April, 2015 upto the 31st March, 2017 under the following terms and conditions:-
1. That you are authorised to identify and detect the illegal trading by non-tribal commercial transport operators conducting business without trading license at Nongshram and Shahlang area, (Shahlang-Riangdo-Athiabari road) West Khasi Hills.
2. That the non-tribal commercial transport operators found conducting business illegally without trading license at Nongshram and Shahlang area are liable to fine/penalty as provided by the United Khasi-Jaintia Hills District (Trading by non-tribals) Regulation, 1954, as amended.
3. That you are not authorised to impose fine/penalty on non-
tribal commercial transport operators with valid trading license from this office which shall exclusively be dealt and processed by the office personnel under the relevant Act/Rule.
4. That you should fully coordinate with the office Personnel deputed by this office and comply with its order/direction that may be issued from time to time.
5. That you are to maintain proper records of the illegal trading by non-tribal commercial transport operators so detected which shall be accessible for official inspection whenever necessary.
6. That check point/station cum office may be set up on convenient area as may be agreed upon provided that such checking shall not hamper the smooth flow of traffic.
7. That whenever a situation so demands for security arrangement you may be allowed to do so at your own cost with prior intimation to this Office.
8. That you should furnish the name of the employee/labour(s) engaged for the purpose with proper identity card duly certified by you and countersigned by authorised official.
9. That in the event of any violation of these conditions, this authorisation is liable for cancellation without any opportunity of being heard.
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WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC
10. That the above terms and conditions should be strictly adhered to.
Sd/-
Joint Secretary to the Executive Committee Khasi Hills Autonomous District Council Shillong"
The petitioner has asserted that in terms of the aforesaid order dated 10.02.2015, when his agency stood renewed for a period from 01.04.2015 to 31.03.2017, he deposited advance amount of Rs.20,000/- towards security and started to perform his duties and further deposited different amounts with the respondent KHADC, allegedly being the fine/penalty realized from the illegal non-tribal commercial transport operators.
The petitioner has stated the grievance in the manner that one year after the extension of engagement, he was suddenly informed by the Council authorities that the term of the Agents/Lessees previously appointed would come to an end w.e.f. 31.03.2016 and then, he was served with the letter dated 31.03.2016 to immediately stop the detection of illegal trading. The petitioner contends that he was neither informed nor was afforded an opportunity to present his case as required by Clause 6 of the agreement dated 07.12.2012; and new tender was floated at his back and without recalling or cancelling his existing agreement. The petitioner has asserted that the entire exercise was intended only to oust him and to deprive him of the legitimate rights under the agreement in question.
In response to this petition, the respondents No.1 to 3 i.e., KHADC and its officers, though have generally not disputed the engagement of the petitioner in the past but have asserted that the 8 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC engagement of the petitioner had only been on the basis of negotiations and without calling for public participation. The said respondents have referred to order dated 25.09.2014 passed by this Court in WP(C) No.133 of 2014 and WP(C) No.138 of 2014 wherein such an engagement without calling for open offers was disapproved by this Court and rather, KHADC was directed to float the tenders for the work in question. It is, therefore, maintained that under the mandate of the Court, KHADC floated the tenders while also deciding to engage one single Agent/Lessee for detecting illegal non-tribal traders in the entire area of the Council instead of having several Agents for different locations. The respondents No.1, 2 and 3 have pointed out that the NIT dated 22.02.2016 was accordingly issued; and the same was published on 24.02.2016 in one English daily "Meghalaya Times" and then, on 15.03.2016 in a vernacular daily "Rupang". The respondents have particularly referred to the stipulations in the NIT dated 22.02.2016 that the term of all the existing agents were to end on 31.03.2016 but they were given the opportunity to file their representations/protests/complaints, if any, by 21.03.2016.
Thus, according to these respondents, the petitioner had the opportunity of filing representation/protest but he maintained silence and did not file any representation/protest against the proposed settlement of the agency through the tender process. With these submissions, the respondents No.1, 2 and 3 have refuted the allegation of arbitrariness and have asserted that they have not violated any provision of law. These respondents have also submitted that the matter had already been settled in favour of respondent No.4 9 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC and the agreement had been executed with him on 30.03.2016 i.e., before filing of the writ petition.
At this juncture, the contents of the Notice Inviting Tender dated 22.02.2016 (Annexure - B to the counter affidavit) could be taken note of as under:
"OFFICE OF THE EXECUTIVE COMMITTEE KHASI HILLS AUTONOMOUS DISTRICT COUNCIL SHILLONG nd NO.DC.RBF/XXII/(T)/184/2014-16/24. Dated Shillong the 22 February, 2016 NOTICE INVITING TENDER In compliance with the Hon‟ble Meghalaya High Court‟s Order passed on WP(C) 133/2014 and WP(C) 138/2014, The Council‟s hereby invites Tenders from interested individuals/parties for appointment as Council‟s Agent/Lessee for identifying/detecting the illegal trading by non-tribal traders conducting business within the jurisdiction of the Council.
Number of Agent/Lessee to be appointed is 1 (one) for the entire jurisdiction of KHADC, viz, East Khasi Hills, West Khasi Hills, Southwest Khasi Hills and Ribhoi Districts. Consequence of this Notice, the current system of multiple agents or regional agents is henceforth discontinued. However, the existing agents, if interested, may also participate in this tender.
Period of appointment is for three years which shall be renewed for another three years upon successful completion of the first three years period and on fulfilment of the terms and conditions of appointment.
Interested person(s)/Party(s) can collect the Tender papers from the office of the undersigned on or before 12 noon of 21 st March, 2016 upon payment of Rs. 200/- (Rupees Two Hundred) only.
Each completed tender shall be accompanied with a refundable security deposit of Rs. 1,00,000/- (Rupees one Lakh) only to be deposited through the Council‟s Challan into the Council‟s account. Minimum Annual Premium to be paid to the Council is Rs. 15,00,000.00 (Rupees Fifteen Lakhs) only for the entire jurisdiction of the Council aforementioned.
Last date of submission of the Tenders shall be on or before the 12:00 Noon of 22nd March, 2016. Opening and screening of Tender will be on the 23rd March, 2016 at 3:00 PM in the Office chamber of the undersigned. Incomplete Tenders will not be accepted.
The terms of all existing Agents for detecting illegal trading by non-tribal which has been extended/settled for a particular place or 10 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC location by not following rules or floating Public Notice or Notice Inviting Tenders widely published in one Vernacular and one English Paper shall come to an end on 31st March 2016. The aggrieved agents if any shall file their representation/protest/complaints to the undersigned on or before the 21st March, 2016. No representation/protest/complaints/petitions will be entertained after the 21st March 2016.
The Council reserves the right to accept or reject any or all of the tenders without assigning any reasons thereof.
Sd/-
Secretary Executive Committee Khasi Hills Autonomous District Council Shillong."
It is also noticed that even when the aforesaid NIT had been for appointment of Council‟s Agent/Lessee for „identifying/detecting the illegal trading by non-tribal traders‟, the agreement said to have been executed by respondents No.1, 2 and 3 in favour of respondent No.4 on 30.03.2016 states the purpose of his engagement being that for detecting the illegal trading by commercial vehicles of non-tribal traders within the Council‟s territory in the following terms:
"AND WHEREAS, upon completion of the required official formalities, the COUNCIL HAS entered into an Agreement with the Agent on 30 th March, 2016 for DETECTING OF ILLEGAL TRADING BY COMMERCIAL VEHICLES OF NON-TRIBAL TRADERS WITHIN THE COUNCIL'S TERRITORY on payment of Rs.15,05,000.00 (Rupees Fifteen Lakhs and Five Thousand) only per annum to the Council as mentioned in the Tender submitted by the Agent."
Clause 4 and Clause 10 of the said agreement, as referred to in this matter could also be taken note of as under:
"4. The Agent shall be allowed to Check and detect illegal trading by commercial vehicles of non tribal traders all over the Council‟s territory. However, mere passing of a commercial vehicles through Interstate National Highway which passes through the Council‟s jurisdiction does not qualifies the same to the regulation as specified in the agreement. In other words, commercial vehicles originating from other neighbouring states and passing through the territory of the Council via Interstate National Highway shall not be subjected to checking and no Trade Licence is required for such vehicles.
10. The Operating expense fee allowed to be collected from commercial vehicles of non tribal traders trading illegally within the 11 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC Council‟s Territory after proper verification of documents and related papers shall be Rs. 200/- (Rupees Two Hundred) only per illegal case detected and this should be done under the approval and strict supervision of the competent authority of the KHADC as provided under the regulation"
The respondent No.4, the Agent now appointed by the respondents No.1, 2 and 3, has filed a separate counter affidavit, inter alia, with the submissions that the petitioner is seeking enforcement of a contractual right; and for the grievance as suggested, the petitioner is not entitled to invoke the writ jurisdiction of this Court. The respondent No.4 has also asserted that previous engagement of the writ petitioner was not in accord with law because open offers were not invited and hence, the Council rightly invited the offers in compliance of the order of this Court dated 25.09.2014; and in the process so adopted under the NIT dated 22.02.2016, he (the respondent No. 4) remained successful and hence, was rightly awarded the contract in question. The respondent has also asserted that he had commenced the work from 01.04.2016 and prior to that, the working engagement of the petitioner had ceased and, therefore, the petitioner is not entitled to any relief.
The petitioner has filed a rejoinder affidavit, inter alia, seeking to assert that the NIT in question was not published in widely circulated newspapers and hence, he was not aware of the same. This apart, the petitioner has also contended in the rejoinder affidavit that the order dated 25.09.2014 as passed by this Court in WP(C) No.133 of 2014 and WP(C) No.138 of 2014 had only been with regard to the appointment of authorized Agent for identifying/detecting illegal trading by the non-tribal traders in Ri-Bhoi District; and in compliance thereof, 12 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC KHADC indeed invited offers for the work in Ri-Bhoi District on 14.01.2015 (Annexure-A to the rejoinder affidavit). Thus, according to the petitioner, the compliance of the order passed by this Court on 25.09.2014 was carried out by way of the said NIT dated 14.01.2015 and the respondents are not justified in seeking to co-relate the order passed by this Court with the contract of the petitioner.
Arguing for the petitioner, in conformity with the pleadings taken, learned Senior counsel Shri H S Thangkhiew has vehemently contended that when the petitioner had been working without any cause of complaint in terms of his existing agreement, there was no justification in the KHADC abruptly terminating his contract and before completion of its term. The learned counsel has also contended that as per the binding terms of the agreement between the parties, if there had been any legal developments or changes in the policy, the petitioner was required to be given an opportunity to state his case; and such an opportunity having not been extended, termination of his contract remains entirely illegal. The learned counsel would further contend that the respondent KHADC has not been justified in terminating the contract of the petitioner with reference to the decision of this Court dated 25.09.2014 in WP(C) No. 133 of 2014 and WP(C) No. 138 of 2014, inasmuch as the issue involved therein had only been with regard to the appointment of Agent for detecting illegal trading by the non-tribal traders in Ri Bhoi District; and pursuant to the order passed by this Court, the NIT dated 14.01.2015 was indeed issued for the work in Ri Bhoi District. Learned counsel would submit that this Court never directed termination of the agency of the petitioner and the 13 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC respondent KHADC was entirely unfair in terminating the agency of the petitioner with reference to the order of this Court pertaining to the other contract.
Learned counsel for the respondents No. 1, 2 and 3 Shri B. Bhattacharjee has contended that the initial appointment of the petitioner and extension of the term of his contract had been by way of negotiations and not by way of open invitation to offer; and when such a course was disapproved by this Court in the order dated 25.09.2014 as passed in WP(C) No. 133 of 2014 and WP(C) No. 138 of 2014, the KHADC had rightly issued the NIT dated 22.02.2016 so as to ensure transparency and fair procedure in awarding the contract for the work in question while taking a justified decision, in the given circumstances, to appoint only one Agent for identifying/detecting the illegal trading by non-tribal traders in its area. The learned counsel has also submitted that even when the new agency was sought to be settled by way of open invitation to offer and the engagements of the Agents like the petitioner, who had earlier been appointed or whose terms had been extended without floating public notice, were proposed to be terminated w.e.f. 31.03.2016, they were specifically extended an opportunity to submit their representation/protest on or before 21.03.2016. According to the learned counsel, the petitioner, therefore, had the opportunity to submit his representation, if so desired but the petitioner neither submitted any representation nor participated in the tender process. With these submissions, the learned counsel has strenuously argued that the termination of the contract of the petitioner cannot be said to be unjustified or suffering from any illegality. 14
WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC Learned counsel Shri S. Sen appearing for the private respondent, while adopting the submissions of the KHADC, has contended in addition that the present one being a purely contractual matter, the petitioner, if aggrieved, cannot have any claim beyond that of damages and for that matter, he ought to approach the Civil Court and is not entitled to invoke the writ jurisdiction of this Court. Learned counsel has referred to and relied upon the decisions of the Hon‟ble Supreme Court in State of Bihar and others v. Jain Plastics and Chemicals Ltd.: (2002) 1 SCC 216 and Rajasthan State Industrial Development and Investment Corporation and another v. Diamond & Gem Development Corporation Limited and another: (2013) 5 SCC
470. As regards the submissions of the respondents that it was a purely contractual matter, the learned counsel for the petitioner has contended in his rejoinder submissions that the contract in question has been statutory in character, for having been entered as per Regulation of 1954 and the Rules of 1959 and as such, any violation thereof could be questioned in the writ jurisdiction of this Court.
In contradistinction to the rival submissions of the parties, learned Senior Government Advocate Shri N D Chullai has submitted that the appointment of any such Agent by the KHADC is beyond its legislative and executive powers. The learned Senior GA has contended that though as per Paragraph 10 of the Sixth Schedule to the Constitution of India, the Council could make regulations for control of money-lending and trade by non-tribals and they have indeed enacted the Regulations of 1954 in that regard, but in the name of so 15 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC called checking of illegal trading, there was no authority with the Council or its Agents to set up any checkpoint or station and to interfere with the movements of the commercial transport vehicles. Learned Senior GA has also contended that there is nothing in the Regulations of 1954 that empowers the Council to interfere with the commercial transport vehicles; and the said regulations deal only with the persons carrying trades in shops or shop-cum-residence. Learned Senior GA would argue that charging of verification fees etc. from the vehicles was confiscatory in nature and the District Council was not having any jurisdiction to make any such arrangements so as to interfere with the trade, commerce and transport. The learned Senior GA has referred to the order dated 03.05.2016 as passed by this Court in the case of Mr. Sdangyoo L. Dkhar v. State of Meghalaya and Others: WP(C) No. 18 of 2016 as also clause (d) of the paragraph 10 (2) of the Sixth Schedule to the Constitution of India.
As regards the contentions urged by the learned Senior GA, the learned counsel for KHADC has referred to Paragraph 10 (1) of the Sixth Schedule to the Constitution and submitted that the general powers of the Council to make regulations for control of money-lending and trading within its jurisdiction by persons other than the scheduled tribe residents of that area are wide enough to cover any activity having the characteristics of commerce; and as per the provisions made in the Rules, the expression „service‟ does include „transport service‟ and, therefore, the Agent has rightly been appointed to check and control such services, if rendered by the non-tribals in the area of the jurisdiction of KHADC. The learned counsel has further submitted 16 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC that when the Council has the powers to make regulations for control of money-lending and trading within its jurisdiction by persons other than the scheduled tribe residents, it has the implied power to make all such arrangements as are necessary to give effect to such regulations; and hence, appointment of an Agent for identifying/detecting the illegal trading by non-tribal traders cannot be said to be unauthorized. The learned counsel has relied on the observations of the Hon‟ble Supreme Court in the case of Sakiri Vasu Vs. State of Uttar Pradesh and others:
(2008) 2 SCC 409 [para 18 to 21]. The learned counsel has also referred to Clause 4 and Clause 10 of the agreement entered into with the respondent No.4 to submit that due care has been taken to ensure that the vehicles merely passing through the territory of the Council will not be subjected to checking and no trade licence would be required for them; and the operating expense fees is also allowed to be collected only from such commercial vehicles of non-tribal traders, who are trading illegally within the Council‟s territory and that too under the approval and strict supervision of the competent authority of KHADC.
The learned counsel has pointed out that the issue as regards the regulations over the commercial operators is otherwise pending before the Apex Court after the decision of the Gauhati High Court in Meghalaya Commercial Truck Owner & Operators Association and another v. State of Meghalaya and others: 2010 (4) GLT 172.
Having given thoughtful consideration to the rival and varying submissions, this Court is of the view that this writ petition deserves to be dismissed, but with necessary observations as regards the rights of KHADC and its Agent.
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WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC As noticed, the learned Sr.GA has argued that the contract of the nature suggested by the parties i.e., appointment of an Agent for checking non-tribal commercial transporter operators, cannot be extended by the Council for being not permitted by law. The authority with a District Council like KHADC to make regulations for the control of money-lending and trading by non-tribals within its jurisdiction emanates from Paragraph 10 of Sixth Schedule to the Constitution of India that reads as under:-
"10. Power of District Council to make regulations for the control of money-lending and trading by non-tribals.-(1) The District Council of an autonomous district may make regulations for the regulation and control of money-lending or trading within the district by persons other than Scheduled Tribes resident in the district.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may-
(a) prescribe that no one except the holder of a licence issued in that behalf shall carry on the business of money-lending;
(b) prescribe the maximum rate of interest which may be charged or be recovered by a money-lender;
(c) provide for the maintenance of accounts by money-lenders and for the inspection of such accounts by officers appointed in that behalf by the District Council;
(d) prescribe that no person who is not a member of the Scheduled Tribes resident in the district shall carry on wholesale or retail business in any commodity except under a licence issued in that behalf by the District Council:
Provided that no regulations may be made under this paragraph unless they are passed by a majority of not less than three-fourths of the total membership of the District Council:
Provided further that it shall not be competent under any such regulations to refuse the grant of a licence to a money-lender or a trader who has been carrying on business within the district since before the time of the making of such regulations.
(3) All regulations made under this paragraph shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect."18
WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC By virtue of the powers so conferred by the Constitution of India and in order to provide for control of trading by non-tribals in the District, the aforesaid Regulations of 1954 have been made; and therein, inter alia, it has been provided that no person other than the tribal resident of the District shall carry on wholesale or retail trade or business within the area except under a licence issued by an officer of the Council. While providing for the conditions for grant or refusal or cancellation of such a licence, penal provisions have also been made for dealing with the cases of contravention. In Clause 2(5) of the Regulations of 1954, the expression „trade‟ has been defined as follows:-
"(5) "Trades" means any trade or business for profit and includes exchange of goods or services for other goods or for money which shall include trade as barber shoe-maker or repairer, furniture-maker, automobile-maker or repairer including dealer in spare parts or tubes or tyres and including also any other similar vocations excluding however any service under the Government, Union or State; and the term „Trader‟ and „Trading‟ shall be construed accordingly."
In Clause 10 of the Regulations of 1954, the Executive Committee of the Council has been empowered to make the rules for carrying out the purposes of the regulations and accordingly, the Rules of 1959 have been made by the Executive Committee of the Council. Therein, the provisions have been made for different nature trades/services as specified in the First Schedule; and in Part F thereof, "transport service" has also been included.
This Court is clearly of the view that when the Council has the power to make regulations for control of trading by the non-tribals within its jurisdiction as per Paragraph 10 of the Sixth Schedule to the Constitution, the power to appoint an Officer, Staff and/or Agent to 19 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC achieve the objects of regulations is inherent and innate therein. It remains trite that a power to do something essential for the proper and effectual performance of work which the statute has in contemplation may be implied [vide: Asstt. Collector of Central Excise Vs. National Tobacco Co. of India Ltd.: (1972) 2 SCC 560]; and that an express grant of statutory powers carries with it, by necessary implication, the authority to use all reasonable means to make such grant effective [vide: Sakiri Vasu (supra)]. Thus, looking to the nature and purport of the powers conferred by Paragraph 10 of the Sixth Schedule, there is hardly any reason to take exception against engagement of an Agent by the Council to identify and check the trading by non-tribals traders. However, the concerned Agent as also the principal i.e., KHADC shall have to remain within the confines of the powers available in law and cannot exceed the same in any manner.
As noticed hereinbefore, the petitioner was himself appointed in the first place as an Agent „to identify and check trading by non-tribals traders without trade licence at Nongshram in West Khasi Hills District‟. It appears, though, that in the extension of the terms of the agency of the petitioner in the year 2012, the emphasis and attention of the Council got focused only on the alleged "non-tribal commercial transport operators", as is seen in the extension agreement dated 07.12.2012. The same had been the emphasis in the next extension order dated 10.02.2015. Interesting it is to notice that even though the NIT dated 22.02.2016 was issued for appointment of Agent/Lessee "for identifying/detecting the illegal trading by non-tribals traders conducting business within the jurisdiction of the Council", the appointment of the 20 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC respondent No.4 is for "detecting of illegal trading by commercial vehicles of non-tribal traders within the Council‟s territory".
In the order dated 03.05.2016 in WP(C) No.18 of 2016 as referred by the learned Sr.GA, this Court was essentially concerned with the alleged setting up of "KHADC Mineral Transport Challan Check Point/Royalty Check"; and with reference to the law applicable, this Court did not approve the attempt on the part of KHADC to recover fees from the vehicles carrying minerals and subjecting them to checking/verification for the purpose of share of royalty. The said decision, essentially concerning Paragraph 9 of the Sixth Schedule to the Constitution as regards share of royalties, will not have a direct bearing on the question involved in the present matter, of course and except to the extent that the Council cannot appoint an Agent to set up a parallel check post over the minerals carrying vehicles and charge verification fees from such vehicles.
In the present matter, all the aforesaid aspects have only been indicated with reference to the submissions of the learned Sr.GA. However, it does not appear that such an appointment of Agent, for identifying/detecting the trading by non-tribal commercial transport operators was ever questioned by any individual or by the State Government as being unauthorized and/or beyond of the powers available under Paragraph 10 of the Sixth Schedule. The power and authority with the Council to control or interfere with the business of non-tribal commercial transport operators within its area, being not the direct question involved in the present matter, is left at that only with the observations that such a question, when raised in the appropriate 21 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC proceeding may be considered on its own merits. Suffice it to observe for the present purpose that the Council would be expected to exercise its powers in conformity with law and obviously, its Agent cannot carry out any such work which is not permitted by law.
Coming to the merits of the dispute between the parties to this petition, as noticed, the learned counsel for the petitioner has attempted to argue that the contract in question was statutory in character. The argument remains fallacious. The Hon‟ble Supreme Court has explained the concept of statutory contract in the case of India Thermal Power Ltd. Vs State of M.P. and others: (2000) 3 SCC 379 in the following:-
"11.......Merely because a contract is entered into in exercise of an enabling power conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporated therein as a result of mutual agreement between the parties....."
Thus, merely because the contract in question was allegedly entered into by the KHADC with the petitioner for the purpose of checking the trading by the non-tribals, it did not acquire the character of a statutory contract. Neither Paragraph 10 of the Sixth Schedule to the Constitution nor the Regulations of 1954 provide for any such contract i.e., of appointing an Agent for the purpose of such a checking of the trading by the non-tribal traders. Such an arrangement has only been for the purpose of carrying out the requirement of Regulations of 1954 and the Rules of 1959. If, for the proper and effectual performance of work, of checking the trading by the non-tribals, the 22 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC Council has chosen to appoint an Agent, the contract nevertheless and essentially remains non-statutory in character.
Though, ordinarily, the grievance of the petitioner on alleged termination of the contract before expiry of its term may provide him with a cause to maintain a claim for damages in the appropriate forum, as argued by the learned counsel for the respondent No. 4 with reference to the decisions in Jain Plastics and Diamond & Gem Development Corporation (supra) but then, in the present matter, since the question has been raised on the fairness of procedure adopted by the KHADC, it appears appropriate to examine if the conduct of the respondent KHADC is suffering from any unfairness so as to warrant interference in the writ jurisdiction.
As noticed above, indisputably, the petitioner was appointed in the first place in the year 2010 without any public notice and without inviting open offers. Significantly, his terms were extended (with modification of objects as noticed hereinbefore) in the year 2012 and then in the year 2015, but again without inviting open offers. Such a course, of appointing an Agent without floating tenders and without inviting offers, was specifically disapproved in the order dated 25.09.2014 as passed in WP(C) No. 133 of 2014 and WP(C) No. 138 of 2014 wherein this Court, inter alia, observed and held as under:-
"8. After hearing the submissions of the learned counsel appearing for the parties as well as on perusal of the writ petitions and counter affidavits, it is clear that there is no transparency or fair play in inviting tender for the said work and also at the same time, the principle of natural justice was also not followed in issuing the impugned order for revocation of the work order and also the order for cancelling the authorization/agreement in favour of the petitioner of WP(C) No. 138/2014. In these peculiar circumstances, this Court is of the considered view that there should be transparency and fair procedures in issuing the contract work of collection of fee and 23 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC checking of illegal trading by non-tribal commercial transport operators conducting business without trade licence at Byrnihat areas, Tamulkuchi, Jorabad, Khanapara, Baridua and Killing including industrial area Damsite, RiBhoi District.
9. Accordingly, these writ petitions are disposed of by directing the respondents No. 1-3 to float tender for the said contract work and the NIT (Notice Inviting Tender) should be widely circulated and also the terms of the tender should also be clearly mentioned in the NIT. Over and above, period for submitting the tender should be for a reasonable period i.e. at least 20 days from the date of floating the tender. The tenders submitted by the contractors should be finalized by the expert committee or by the Committee of the KHADC by following the procedures and conditions for finalization of the tender as prescribed under the relevant Acts and Rules. It is also made clear that finalization of the tender should be within a reasonable period or should be completed as expeditiously as possible within three months from the date of receipt of a certified copy of this common judgment and order. In the interregnum, the collection of fee and others shall be done departmentally. The respondents are further directed to refund the said amount of Rs. 2,65,000/- only deposited by the petitioner of WP(C) No. 138/2014 with interest i.e. interest for fixed deposit with Meghalaya Rural Bank till the said amount is returned to the petitioner."
The said decision, even if rendered in relation to a different Agent for a different area, the principles laid down therein do apply to all such contracts; and in the wake of such a clear decision and mandate of this Court, KHADC could not have continued with the contract of the petitioner that had been awarded by way of private negotiations only and not after inviting open offers. In fact, after the aforesaid decision by this Court on 25.09.2014, even the extension granted to the petitioner on 10.02.2015 was itself improper and was rather at conflict with the law declared by the Court. Viewed from any angle, KHADC cannot be faulted in taking the decision to discontinue with the engagement of the petitioner and to settle the agency by way of open invitation. Even in that regard, KHADC took care to afford an opportunity of making representation to the Agents like the petitioner. There does not appear any unfairness on the part of KHADC in dealing with the petitioner. On the contrary, as noticed, the petitioner was 24 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC rather allowed improper indulgence when his alleged contract was further extended on 10.02.2015.
A submission made by the learned counsel for the petitioner that the contract covered by the decision dated 25.09.2014 was in fact dealt with by the fresh NIT for the said area on 14.01.2015 has only been noted to be rejected. As observed above, the principles laid down in the order dated 25.09.2014 cannot be read as limited to the particular contract and per force, apply to all the contracts of similar nature. This apart, by the NIT dated 14.01.2015, offers were invited for appointing the Agent in Ri Bhoi District for twelve months commencing from the month of February, 2015. It is noticed that later on, KHADC took a clear decision to appoint a single Agent for the entire area under its jurisdiction and thus, issued the NIT in question dated 22.02.2016. Thus, the NIT dated 14.01.2015 hardly carries any relevance for the case of the petitioner. It is too far stretched to suggest as if the principles laid down by this Court in the order dated 25.09.2014 stood exhausted with the said NIT dated 14.01.2015 or that the said decision was case-specific only. As noticed, this Court has disapproved settlement of such an agency without open invitation to offer; and those principles apply, without any doubt, to all such contracts.
Another cursory submissions made in the rejoinder affidavit that the NIT dated 22.02.2016 was not published in the newspapers of wide circulation also does not make out a case in favour of the petitioner. Apart that such a factual aspect cannot be determined in the writ jurisdiction of this Court, the fact of the matter remains that petitioner has merely referred to the names of some other newspapers which, 25 WP(C) No. 113/2016: Maiantis Mawlot Vs. KHADC according to him, are of wide circulation but has not given the relevant statistics on the number of copies in circulation of the referred newspapers nor has shown the comparison with those of the newspapers in which the NIT was published. In any case, when the offers are indeed made by other persons pursuant to the NIT dated 22.02.2016, it is difficult to accept the submissions of the petitioner that he remained oblivious of the same.
On the facts and in the circumstances of the present case, this Court is impelled to reiterate that even the extension of the contract of the petitioner on 10.02.2015 without open invitation to offers was itself improper and unjustified; and was contrary to the aforesaid decision of this Court dated 25.09.2014. Thus, the petitioner is not having any legal right to question the settlement of agency in question by way of open invitation to offer.
Viewed from any angle, the petitioner is not entitled to any relief in the writ jurisdiction.
In view of the above, this writ petition fails and is, therefore, dismissed subject to the observations foregoing. No costs.
CHIEF JUSTICE Lam/Sylvana