Judgment:
1 ORDER
SHEET APOT72014 GA222014 WP4632013 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE STATE OF WEST BENGAL & ORS.Versus SHAMIYANA INFRASTRUCTURE PVT.LTD.& ANR.
BEFORE: The Hon'ble CHIEF JUSTICE MRS.MANJULA CHELLUR The Hon'ble JUSTICE BANERJEE Date : 12th September, 2014.
Mr.Abhratosh Majumder, Advocate Mr.T.M.Siddiqui, Advocate for the appellant.
Mr.Kishore Dutta, Senior Advocate Mr.Sayantak Das, Advocate for the respondent.
The Court : The writ petition came to be filed by the respondents herein challenging the decision of the Joint Secretary in the State Transport Department.
As a matter of fact, the decision dated 26.4.2013 impugned before the learned Trial Judge was declining to engage any Motor Vehicle Inspector or other personnel to make the weigh-bridge set up by the writ petitioner company on Srirampur-Cooch Behar Road at the Assam border functional.
It is not in dispute, the weigh-bridge tender process so far as this weigh-bridge came to be made way back in 2007.
By this proposal, the private parties were allowed to operate the weigh-bridges involving no financial implication on the part of the Government.
When invitations were offered for setting up the weigh-bridge in the State of West respondents/writ Bengal so petitioners far as applied weigh-bridge for the at same.
Cooch Behar, the Accordingly, the respondents/writ petitioners were successful in the tender.
No doubt, it was a single tender.
The fact remains, an agreement accepting the terms offered by the respondents/writ petitioners came to be entered into between the State and the writ petitioners proprietary concern.
As per the agreement, the facilities of weighbridge have to be set up which includes an administrative building, a post office, a police outpost, staff quarteRs.restaurants, dhabas, transport agent’s offices, fire brigade office, car parking office, toll gates and weigh-bridges and check-post together with other infrastructure.
On 15.6.2011 upon inspection of the Motor Vehicle Inspector (Technical) the weigh-bridge center has been found to be fit for immediate operation as certified by District Magistrate, Cooch Behar.
The inspection report details all the facilities available and the completion of the bridge as agreed upon and its fitness for operation.
It is not in dispute, as per the agreement the concessionaire is entitled to receive toll as weighing fees at the rate specified by the State, from the owners of the goods vehicles at different rates as specified thereunder.
According to the writ petitioneRs.when the complex was completed, the State refused to appoint any Motor Vehicle Inspector or deploy police personnel.
Therefore, they were compelled to file WP200of 2013 which came to be disposed of on 26.3.2013 wherein a direction was given that the Joint Secretary in the Transport Department would look into the matter after submission of the list of sub-lessees appointed by the writ petitioneRs.Accordingly, without proceeding further, the order dated 26.3.2013 came to be made by the Joint Secretary wherein clear indication was given not to deploy the personnel on the ground that the petitioner company was selected by the Transport Department on a single tender basis and that the ratification or approval from the Transport Department had not been obtained.
It is needless to say, if such violation of the procedure was committed, it was the department officials who did not bother or care to see what they were supposed to do at the relevant point of time.
They also complain about the Government share of 5.27 per cent in the revenue as inadequate and low.
The learned Judge, after perusing all the records placed before the Court along with the writ petition, was of the opinion, it was not a single tender contract and invitation had been sought from the parties to set up weigh-bridges at various locations and since the Finance Department had endorsed the transport department proposal on the ground that the project did not involve any financial implication on the part of the Government, the grounds on which the effective operation of the weigh-bridge facilities set up by the writ petitioners was resisted appear to be without any basis and reasoning.
The learned Judge was justified in opining that the State, after entering into an agreement with the writ petitioner petitioneRs.is bound to act upon the said agreement in accordance with the terms of contract.
According to the State, the share of revenue at 5.27 per cent was too low and a single tender was wrongly accepted.
It was at the instance of the department concerned that such tender was accepted and it is also learnt that the tenders for fourteen weigh-bridges at different places were invited by an advertisement in a newspaper.
It is not in dispute, so far as the present tender, it has only one tenderer.
What surprises us is having accepted the tender way back in 2007 and having entered into an agreement with eyes wide open indicating the share of the revenue at 5.27 per cent to the State, now the very same department is finding fault with such acceptance.
Nothing is placed on record to show, whether any action was taken against the persons or officers who were responsible for such tender acceptance.
On the other hand, allowing the tenderer to enter into an agreement and after huge investment made by the writ petitioner for setting up the weigh-bridge, at a later stage after almost five yeaRs.is it open to the department to find fault with the very tender acceptance and also the quantum of revenue share to be paid to the State.
When the writ petitioners have taken all the pains to set up the facility in terms of the agreement which was found to be satisfied as per the inspection report, the State cannot decline to make the facility operational on the above grounds.
The learned Judge was justified in refusing to accept the contentions on behalf of the State.
The decision in the order dated 26.3.2013 is nothing but arbitrary and capricious.
We are of the opinion, the learned Judge was justified in rejecting the defence raised on behalf of the State accepting the contentions raised by the writ petitioneRs.However, during the couRs.of the arguments when the Bench suggested to the respondents/writ petitioners that the share of revenue to be paid to the State from the toll charges collected is very low, they have agreed to enhance the same and they have volunteered to pay at 11.5 per cent instead of 5.27 per cent out of the toll amount collected by them to the State.
In the light of the said submission, we are of the opinion, none of the contentions raised before us are sustainable and accordingly, we modify the judgment of the learned Single Judge to the extent that all the terms and conditions agreed between the parties are to be implemented except the share of the toll charges to be enhanced to 11.5 per cent as against 5.27 per cent.
We direct the concerned department to expedite the entire process and do the needful in terms of the agreement within one month from today.
With these observations, the appeal is disposed of without any order as to costs.
Consequently, the application is also disposed of.
(MANJULA CHELLUR, CJ.) (BANERJEE, J.) sd/dg.
AR[CR].