WA/32/2024 of DEIPORMI DKHAR Vs STATE OF MEGHALAYA AND 3 ORS. on 16 December 2024

JUDGMENT

(Delivered by the Hon’ble, the Chief Justice)

This appeal is by a weighbridge operator in Amsarin on the Jowai-Dawki road, Meghalaya. He is in appeal before us from a judgment andorder made by a learned single judge on 20[th] May, 2024 dismissing his writpetition (WP (C) No.8 of 2024).

The Meghalaya Installation, Regulation, Maintenance and Operation of Weighbridge Rules, 2009 and 2015 were made in exercise ofpowers of this State under Section 138 read with Section 212(1) of the MotorVehicles Act, 1988. Rules 3 to 6 give power to the State government or anyprivate individual upon obtaining due permission from the government tooperate a weighbridge. Rule 7 provides for renewal of this permission for aperiod of three years.

In these Rules, the Commissioner of Transport is nominated as the authority.

The main question which arose for consideration in the writ and inthis appeal was whether the Commissioner had the power to execute theagreement dated 1[st] June, 2022 allowing the appellant to operate theweighbridge for a period of three years. According to the respondents, notender was invited as required under the Rules for operation of theweighbridge. Permission of the government or authroisation of the Hon’bleGovernor was not obtained in favour of the Commissioner for execution ofthe agreement by him.

The facts are these.

On 7[th] December, 2017 an agreement was executed between theappellant and the Government of Meghalaya, allowing the appellant tooperate the weighbridge at Amsarin Jowai-Dawki road. It was for three yearsand to end on 6[th] December, 2020.

During the subsistence of the agreement, the Covid pandemic invaded the country. The agreement was not renewed. On its expiry on 6[th]December, 2020, it was temporarily extended till 31[st] December, 2020.

Meanwhile, the appellant had filed an application with the respondents forrenewal of the lease. When it was not renewed but merely temporarilyextended till 31[st] December, 2020, on 4[th] January, 2021, the appellant filed awrit petition in this Court (WP (C) No.2 of 2021).

An interesting turn of events took place when the respondent Nos.2and 3 filed their affidavit-in-opposition in this writ petition. In paragraph 5 ofthe affidavit-in-opposition there was an averment to the effect that theapplication for renewal of the weighbridge license would be consideredfavourably. It appears that this averment in the affidavit-in-opposition waspointed out to the Court. On 9[th] May, 2022 it disposed of the writ petition by,inter alia, directing that the appellant was at liberty to approach therespondents with an application for renewal which was to be decided withinone month from the date of the order.

Conclusion

The respondent No.3, Commissioner of Transport, Meghalayainterpreted this order to mean that the license was to be renewed for a periodof three years.

On 30[th] May, 2022 he asked the appellant to pay the renewal fee forexecution of the agreement and on 1[st] June, 2022 executed a fresh agreementrenewing his license for a period of three years.

It appears from the cause papers that there was lack of interdepartment information sharing and a communication gap.

Inspite of the agreement dated 1[st] June, 2022 having been executedby the respondent No.3, the Deputy Secretary of the Transport departmentwrote to the Commissioner of Transport on 14[th] July, 2023 that approval hadbeen granted for execution of the agreement only till 30[th] September, 2023.

The appellant was aggrieved by this decision.

On 31[st] August, 2023, he filed another writ petition in this Court(WP (C) No.299 of 2023). A learned Single Judge hearing the writ on 28[th]September, 2023 passed an interim order directing that status quo bemaintained with regard to the weighbridge license. This interim order wasextended from time to time.

On 1[st] March, 2024 the respondents withdrew the decision dated14[th] July, 2023.

According to the appellant, the effect of withdrawal of the decision dated 14[th] July, 2023 was that the agreement of 1[st] June, 2022 executed bythe Commissioner of Transport revived together with all the rights under it.However, according to the respondents this renewed lease agreement wasnon-est as the Commissioner has no power to sign it. The original agreementexpired on 6[th] December, 2020. The appellant had no right to operate theweighbridge.

On 1[st] February, 2024, the respondents withdraw all official staffemployed in the weighbridge.

The appellant says that the respondents wrongfully started operating another weighbridge through those personnel 2 km from thelocation of the appellant’s weighbridge.

This prompted the appellant to file the third writ petition (WP (C)No.8 of 2024) in this Court.

Mr. S. Sen, learned advocate appearing for the appellant contendedthat the personnel withdrawn from his client’s weighbridge should beimmediately restored back to him, the government weighbridge 2 km away was illegal and should be shut down and the personnel deployed there shouldbe returned to his weighbridge.

The appellant did not withdraw the second writ petition at thatpoint of time.

The third writ petition (WP (C) No.8 of 2024) was dismissed by alearned single Judge of this Court by a judgment and order made on 20[th]May, 2024. The second writ petition (WP (C) No.299 of 2023) was alsodisposed of by this Court.

The weighbridge operator, the writ petitioner appeals to this Courtagainst the said judgment and order.

It is noteworthy that in the impugned judgment and order, thelearned single Judge accepted the argument made on behalf of therespondents that the Commissioner had no power to renew the leaseagreement from 2022 to 2025. The execution of the fresh lease agreement of1[st] June 2022 for a period of three years by the Commissioner was held to beunauthorised. Having held so, the learned Judge proceeded to criticize thesubsequent actions and conduct of the respondents in temporarily renewingthe lease agreement on 14[th] July, 2023 up to 30[th] September, 2023 and

thereafter, on 16[th] January, 2024 withdrawing the renewal made on 14[th] July,2023, which had the effect of the appellant continuing to carry on operationof the weighbridge. The learned Judge also did not appreciate the subsequentwithdrawal of the personnel from the weighbridge. Nevertheless, in view ofhis lordship’s finding recorded above, the writ petition was dismissed.

In order to understand the issues involved in the writ petition andin this appeal, the grounds taken by the respondents need to be properlyappreciated. They are as follows.

The permission of the government was not taken under Rules 3, 6and 7 of the Meghalaya Installation, Regulation, Maintenance and Operationof Weighbridge Rules, 2009. Such permission could only be accorded by theSecretary to the Transport department. There was no recital in the agreementdated 1[st] June, 2022, that permission of the government had been obtained.

Although the agreement was in the name of the Hon’ble Governor,the Commissioner was not authorised by him to sign the agreement underArticle 299 of the Constitution of India read with the rule of executivebusiness of the Government of Meghalaya. Only the minister is theauthorised signatory in the name of the Governor.

The government is not bound by the acts of an unauthorised officer.

The alleged agreement dated 1[st] June, 2022 was executed withoutissuance of tender.

Arguments and discussion:

Learned Advocate General relies upon Article 299 of theConstitution of India. It is an acknowledged fact that only the personauthorised by the President of India and the Governor can execute contractson behalf of the Government of India and the State, respectively. Any otherperson executing a contract document would render it invalid andunenforceable against the government. The contract has to be in the name ofthe President of India or the Governor and signed by an authorised signatory.Even if there is a genuine concluded contract but not signed by an authorisedperson, it would not bind the government. This protection or safeguard isprovided in the Constitution to prevent unauthorised persons from bindingthe government to contracts and to ensure a systematic procedure forexecution of government contracts. Even when a contract was novated, thesaid procedure had to be followed [see Bhikraj Jaipuria v. Union of India-AIR 1962 SC 113, Union of India v. N.K. Private Limited-(1973) 3 SCC 388, Joshi Technologies International, INC v. Union of India-(2015) 7 SCC 728and Glock Asia Pacific Limited v. Union of India-(2023) 8 SCC 226] cited bythe learned Advocate General.

The other case cited by the learned Advocate General wasKmenlang Suiam v. State of Meghalaya reported in (2012) 1 GLR 445, whichstates that under Rules, 4, 5 6 and 7 of the said Rules, permission from theState government is required before grant of a weighbridge license.

Needless to mention the appellant based his case on the validity ofthe agreement dated 1[st] June, 2022, the wrongful acts of the respondents inissuing the notices dated 14[th] July, 2023 and 16[th] January, 2024 and thereafterwithdrawing its personnel from the weighbridge.

Timber Kashmir Private Ltd. v. Conservator of Forests, Jammureported in (1976) 4 SCC 497 cited by Mr. Sen, learned counsel for theappellant does not help him because the proposition laid down in that case issomething different. It states that if a government lease is valid, thedocuments referred to, in it could be of evidentiary value regarding sanction.In that case there was no dispute regarding the validity of the lease but theauthority of the Commissioner executing the lease was denied. In our case the grant and validity of the lease is questioned. So this case has no application to the facts and circumstances of that case.

Mr. Sen also argued that there was another class of contractsknown as statutory contracts, citing Gujarat State Financial Corporation vs.Lotus Hotels Pvt. Ltd. (1983) 3 SCC 379 and India Thermal Power Ltd. vs.State of M.P. reported in (2000) 3 SCC 379. The subject lease fell into thisclass and its execution governed by the statute.I do not know how thesecases help the appellant because even assuming that under the said statuteand rules, this contract was executable, nevertheless being executed by thegovernment as a party, it had to comply with the requirements of Article 299of the Constitution.

In paragraph 5 of the affidavit-in-opposition filed by the respondents in the first writ petition, it was clearly stated that should theappellant make an application for renewal of the license, it would beconsidered by the respondents. The tenor of the statement in this paragraphsuggested that this application would receive favourable consideration by therespondents. Paragraph 5 of the affidavit is set out below:

“5. That the statements made in para 8 are correct with regard tomention about provision of Rule and the petitioner is advice toapproach the Transport Department for favourable renewal whichwill be considered taking in to view the provisions of Rule 7 of theMeghalaya Installation, Regulation, Maintenance and Operation ofWeighbridge Rules, 2009 and Point 2 (iii) of the Meghalaya StatePolicy for Weighbridges, 2018 and after proper scrutiny of recordsand documents related to payment of all Government dues. In factit is also stated that recently the Government has accepted petitionfor extension of lease Agreement in respect of Majai Weighbridge,East Khasi Hills District.”

On this affidavit being placed before the Court, the writ petition was disposed of, on the submission of learned counsel for the appellant/writ petitioner based on his understanding that the appellant’s agreement was tobe renewed.

Rule 7 is specific that permission would be renewable every three years. It necessarily implies that a renewal would be for a period of threeyears. If after the order disposing of the first writ petition, the Commissioner went ahead and executed the agreement dated 1[st] June, 2022 for three years, Isee nothing wrong in his conduct. Otherwise, the respondents would be inbreach of the express or implied assurance given to the Court that the leaseagreement would be renewed.

If the Commissioner had power in 2017 to execute the agreement, he also had the power in 2022. In fact, the Meghalaya State Policy for

Weighbridges, 2018, authorised the Commissioner of Transport to sign thelease agreement. This policy was issued by the Governor. In my opinion, nofurther authority under Article 299 of the Constitution of India was neededby the Commissioner from the Governor to execute this agreement. TheCommissioner had stated in the recital of the lease agreement that it wasbeing executed in the name of the Governor.

In my interpretation of the rules, the proviso to Rule 3 onlyrequired the permission of the government to grant a lease to a privateperson. Once the lease had been granted no permission was again requiredfor its renewal under Rule 7. In our case, seeking permission from thegovernment would have been an idle formality because the above Statepolicy authorised the Commissioner to execute the agreement.

If an authorised person tries to execute an agreement, binding thegovernment, the government can rely on Article 299 of the Constitution andavoid it. But the case is entirely different when the government had fullconsent to the agreement but later tries to wriggle out of it on the ground thatthe requirements of Article 299 had not been complied with. It should not beallowed to do so. It is estopped from making this contention. More importantly, the other party to the contract, if innocent, should not be madevictim of any procedural error at the end of the administration.

Furthermore, the initial agreement had to be executed upon atender being floated. There is no requirement for any tender at the time ofrenewal of the lease because this is against the concept of renewal which hasto be made in favour of the same person.

Now, this decision to withdraw the notice of 14[th] July, 2023 was inmy opinion violative of the order of the learned Single Judge made on 28[th]September, 2023 directing status quo in relation to the weighbridge, in WP(C) No.299 of 2023, because simultaneously with the withdrawal of thenotice of 14[th] July, 2023, the government started contending that the originallease had not been renewed. Acting in furtherance thereof, they withdrew thepersonnel from the appellant’s weighbridge making it inoperational, alteringthe status quo.

As the government was bound by the lease agreement executed on1[st] June, 2022, as I have held, issuance of the notice of 14[th] July, 2023,thereafter revoking it and removing the personnel from the appellant’s weighbridge were all wrongful and illegal acts. So it is obliged to carry outthe said agreement and restore the staff of the appellant’s weighbridge.

As far as setting up of another weighbridge at Amjeha by thegovernment 2 km away from the appellant’s weighbridge and the rights andremedies of the parties in relation to this act of the government, I observethat this is not the subject-matter of this writ petition. Whether the appellantwill take civil action alleging breach of contract or take out any otherproceedings in the nature of writ or otherwise is up to the appellant. I saythat I have not gone into the merits of that matter and leave is given to theappellant to take such action that he may be available to him or as he may beadvised in an appropriate jurisdiction.

In those circumstances, I declare and direct as follows:

(a) The lease agreement of 1[st] June, 2022 is legal, valid and bindingon the respondents; (b) The decisions embodied in the notices dated 14[th] July, 2023 and16[th] January, 2024 are declared invalid and set aside ab initio;

(c) The respondents are directed to restore the staff provided by them to the appellant’s weighbridge within two weeks fromcommunication of this order; (d) The respondents should provide full assistance to the appellant to operate the weighbridge during the operation of the lease dated1[st] June, 2022; (e) With regard to setting up of another weighbridge by therespondents 2 km away from the site of the present weighbridge atAmjeha, the appellant is at liberty to take such action that may beavailable to him in accordance with law; and (f) The impugned judgment and order dated 20[th] May, 2024 is set aside.

(g) This appeal is allowed.

(W. Diengdoh)

(I.P. Mukerji)

Judge Chief Justice