WP(C) 6845/2010 BEFORE THE HON’BLE MR JUSTICE I.A. ANSARI IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH) 1. WP(C) No.206 of 2011. Petitioner : Smti. Kmenlang Suiam, Proprietor of Thangskai Weighbridge also known as M/S Meghalaya Weighbridge, Thangskai, BPO Lumshnong, Jaintia Hills District, Meghalaya. By Advocates : Mr. A. K. Bhattacharyya, Sr. Advocate. Mr. K.K. Bhattacharyya, Mr. A. K. Choudhury, Mr. S. Dutta, Ms. T. Talukdar, Ms. A. Deka, Mr. D. K. Bhattacharyya, Advocates. -versus- Respondents: 1. The State of Meghalaya, Represented by the Chief Secretary, Government of Meghalaya, Shillong. 2. The Secretary of Transport Department, Government of Meghalaya, Shillong. 3. The Commissioner of Transport Department, Government of Meghalaya, Shillong. 4. The Principal Secretary of Transport Department, Government of Meghalaya, Shillong. 5. The Under Secretary, Transport Department, Government of Meghalaya, Shillong. 6. The Additional Deputy Commissioner, Jowai, Jaintia Hills District, Meghalaya. 7. The Deputy Commissioner, Jaintia Hills District, Jowai, Meghalaya. By Advocate: Dr. BP Todi, Advocate General, Meghalaya. 2. WP(C) No.6845 of 2010 Petitioner : Smti. Kmenlang Suiam, Proprietor of Thangskai Weighbridge also known as M/S Meghalaya Weighbridge, Thangskai, BPO Lumshnong, Jaintia Hills District, Meghalaya. By Advocates : Mr. A. K. Bhattacharyya, Sr. Advocate. Mr. S. Sen, Mr. K.K. Bhattacharyya, Mr. A. K. Choudhury, Mr. S. Dutta, Ms. T. Talukdar, Ms. A. Deka, Advocates. -versus- Respondents: 1. The State of Meghalaya, Represented by the Chief Secretary, Government of Meghalaya, Shillong. 2. The Secretary of Transport Department, Government of Meghalaya, Shillong. 3. The Commissioner of Transport Department, Government of Meghalaya, Shillong. 4. The Principal Secretary of Transport Department, Government of Meghalaya, Shillong. 5. The Under Secretary, Transport Department, Government of Meghalaya, Shillong. 6. The Additional Deputy Commissioner, Jowai, Jaintia Hills District, Meghalaya. By Advocate: Dr. B.P. Todi, Advocate General, Meghalaya. BEFORE THE HON’BLE MR. JUSTICE I. A. ANSARI THE HON’BLE MR. JUSTICE C. R. SARMA Date of hearing : 20.04.2011 Date of delivery of judgment : 07.06.2011 JUDGMENT & ORDER (Ansari, J.) By this common judgment and order, we propose to dispose of both these writ peti tions inasmuch as these two writ petitions are inextricably inter-linked, involv e facts, which are co-related with each other, giving rise to common questions o f law and, on the request made by the learned Counsel for the parties concerned, both these writ petitions have been heard together. BACKGROUND FACTS: (i) Pending finalization and approval of the Rules for Installation, Regulat ion and Operation of Weighbridges in the State of Meghalaya, the Government of M eghalaya issued, on 11th September, 2003, a notification, prescribing the proced ure to be followed in the matters of installation and operation of Weighbridges in Meghalaya, the notification having been claimed to be a notification issued i n exercise of the power conferred on the Government by Clause (b) of Sub-section (2) of Section 138 of the Motor Vehicles Act, 1988. (ii) Following the procedure prescribed in the notification aforementioned, t he writ petitioner installed a Weighbridge, at Thangskai, Jaintia Hills District , at National Highway-44. This was followed by a formal agreement executed, in writing, on 20th December, 2007, between the petitioner, on the one hand, and th e Commissioner of Transport, Govt. of Meghalaya, on the other, whereby the petit ioner’s Weighbridge was approved by the latter for being used by the Transport D epartment, Govt. of Meghalaya, for the purpose of weighment of vehicles for a pe riod of three years on payment of an annual premium of Rs.30 lakhs by the petiti oner to the Government. (iii) The said notification, dated 11th September, 2003, was, later on, replac ed by Meghalaya Installation, Regulation, Maintenance & Operation of Weighbridge s Rules, 2009 (hereinafter referred to as ’the 2009 Rules’). Rule 4 of 2009 Rul es prohibits installation and operation of a weighbridge unless a person, who in tends installing and operating a Weighbridge, has made an application, in writin g, to the Transport Department, through Commissioner of Transport, seeking permi ssion to install, run and operate the weighbridge. Rule 5 of 2009 Rules provide s for granting of permission by the Commissioner of Transport if he is satisfied that the proposed place, for installation/operation of the Weighbridge on the N ational Highway or the State PWD Road, fulfills the conditions embodied in Rule 5, namely, (a) that adequate parking space and lay bye facility so as not to cause prob lems of traffic congestion on the highway is available; (b) that it is maintained in a safe and appropriate manner; (c) that the proposed location is consistent with public safety and convenie nce; and (d) that provision for off loading the excess loading is available. (iv) Rule 6 of 2009 Rules provides that after satisfying himself that the app lication is complete and meets the requirement as laid down in the aforesaid Rul es 4 and 5, the Commissioner of Transport shall forward the application with all required information to the Secretary of Transport Department for issue of perm ission. (v) Rule 7 of 2009 Rules makes the permission, granted under Rule 6, renewable every three years subject to the condition that the proposal for gran t/renewal of permission, as the case may be, is accompanied by a certificate iss ued by the Inspector of Weights & Measures, Government of Meghalaya, as to the a ccuracy and correctness of the device. (vi) The permission, granted under Rule 6, for installation and operation of a weighbridge, is renewable under Rule 7 subject to the condition that the propo sal for renewal is accompanied by a certificate issued by the Inspector of Weigh ts & Measures, Government of Meghalaya, as to the accuracy and correctness of th e device, i.e., Weighbridge. (vii) Under Clause 9 of the Agreement, dated 20th December, 2010, which the pe titioner had entered into with the Transport Department, Govt. of Meghalaya, ren ewal was subject to making of an application with a renewal fee of Rs.250/- to b e deposited by Treasury Challan. (viii) According to the writ petitioner, though the petitioner’s agreement with the Government was executed, on 20.12.2007, for a period of 3 (three) years i.e . 2007-2008, 2008-2009 and 2009-2010, the petitioner’s weighbridge was made oper ational/functional w.e.f. 01.09.2009 inasmuch as the necessary press release, in this regard, was issued, on 05.06.2008, by the Office of the Commissioner of Tr ansport, but the weighbridge was, again, closed by letter, dated 21st March, 200 9, issued by the Additional Deputy Commissioner during the period of the Preside nt’s Rule in the State. However, the weighbridge was, again, made functional by an order, dated 15.09.2009, passed by the Commissioner of Transport, Government of Meghalaya. Thus, the petitioner could not run the weighbridge effectively f or more than one year. (ix) Since the petitioner had been paying the premium as required by the agre ement, she was expecting renewal of the permission as stipulated in the agreemen t, particularly, when the 2009 Rules also provide for renewal of permission ever y three years. The petitioner accordingly, having complied with all the requirem ents, made an application, on 21.08.2009, seeking extension of her permission an d, consequently, renewal of her lease agreement. Despite the fact that the peti tioner, while so applying for renewal of the permission, submitted necessary cer tificate issued by the Inspector of Weights & Measures followed by deposit of re quisite renewal fees, no response was received from the Government in this regar d. (x) Unable to bear the inaction on the part of the Government in renewing th e permission and also the agreement for lease, the Writ Petitioner preferred a w rit petition under Article 226, which gave rise to W.P. (C) No. 6759 of 2010. Th is writ petition was disposed of, on 15.12.2010, with a direction to the respond ents to take appropriate decision on the petitioner’s application seeking renewa l of lease agreement. Contrary to the petitioner’s expectation, the Secretary t o the Government of Meghalaya, Transport Department, issued a communication, on 17.12.2010, addressed to the petitioner, whereby the petitioner was informed tha t in view of the Government’s policy decision taken, on 02.06.2010, for setting up integrated gates/weighbridges, no extension, in respect of the petitioner’s r equest for permission could be granted. (xi) According to the petitioner, on National Highway Nos. 40, 44 and 62, sim ilar weighbridges are being allowed to run and operate even after expiry of the lease agreement and, hence, the Government’s decision not to renew the permissio n, and in consequence thereof, not to renew lease, was arbitrary, discriminatory and in violation of Article 14 of the Constitution of India and, further, the p rovisions of renewal, prescribed by the 2009 Rules, cannot be set at naught by a policy decision of the Government. Consequently, according to the petitioner, the petitioner, having complied with all the requirements of 2009 Rules, is enti tled to get the renewal of permission as well as renewal of lease. The petition er has, therefore, sought for the following remedies by filing a writ petition u nder Article 226 of the Constitution of India, which has given rise to WP(C) No. 6845 of 2010. Issue Rule calling upon the respondents to show cause as to why a writ of mand amus shall not be issued declaring the policy decision taken by the Government o n 02.06.2010, as unconstitutional and illegal and/or issue a writ of certiorari setting aside and quashing the policy decision taken by the Government on 02.06. 2010 as unconstitutional and illegal and further declare that the said policy de cision in any case is not applicable in respect of operation and renewal of weig hbridge of the petitioner at Thangskai on National Highway 44 Jaintia Hills Dist rict and also declare the consequential impugned letter, dated 20.12.2010, issue d by the respondent No.2 asking the respondent No.7 to close down the weighbridg e of the petitioner at Thangskai on National Highway 44 as illegal and direct th e respondents to renew the approval for operating the weighbridge at Thangskai o n National Highway 44 by the petitioner as per the terms and conditions in the A greement, dated 20.12.2007. , 2. The respondents have resisted the writ petition. With the help of an af fidavit-in-opposition filed by the Secretary to the Government of Meghalaya, Tra nsport Department, the respondents have contended, inter alia, that the petition er’s permission expired on 19.12.2010 and the renewal of permission is neither a utomatic nor as a matter of right. The Government’s policy decision not to gran t extension or renewal of permission after the expiry of the existing term has b een taken in the larger interest of the public and the same does not call for an y interference by this Court in exercise of this Court’s extra-ordinary jurisdic tion under Article 226. 3. With regard to the petitioner’s claim that some of the Weighbridges were allowed to function even after expiry of their respective terms of the lease, t he respondents have contended that those weighbridges are continuing on the stre ngth of the various orders of the Court. The respondents categorically state, i n their affidavit-in-opposition, that the Government has not granted renewal in respect of any lease agreement inasmuch as the State Government has decided to s et up joint/integrated check gates with weighbridge facility on National Highway Nos. 40, 44 and 62 in order to facilitate operation of government toll gates in one place instead of locating such gates at various places on the same route. It is also contended by the respondents that the provisions, contained in 2009 R ules, form enabling provisions and the same do not disempower the Government fro m refusing to grant extension of permission in public interest. 4. Repelling the pleas taken by the respondents in their affidavit-in-oppos ition, the petitioner, with the help of a rejoinder, contends that 2009 Rules ha ve been framed in exercise of the power vested in the Government by Section 138 (2)(b) of the Motor Vehicles Act, 1988, and, hence, the same cannot be dislodged or replaced by a policy decision inasmuch as the policy decision, in order to b e effective, has to have the support of the Cabinet in the matter and the mandat e of Article 162 of the Constitution of India. It is also contended by the peti tioner that the policy decision, having been taken in respect of weighbridges si tuated on National Highway 62, the same cannot be extended to the petitioner’s w eighbridge, which is located on National Highway 44. The petitioner, therefore, alleges violation of Articles 14 and 21 of the Constitution of India. 5. During the pendency of the writ petition, namely, W.P. (C) No. 6845 of 2 010, the petitioner obtained a copy of the policy decision, dated 02.06.2010, an d challenged the validity of the said policy decision by filing another writ pet ition, under Article 226, which has given rise to W.P. (C) No. 206 of 2011, the case of the petitioner, in W.P. (C) No. 206 of 2011, being, in brief, as under: (a) As the policy decision pertains to National Highway 62, the same is not applicable to the petitioner’s Weighbridge, which is located at National Highway 44; (b) The respondents’ refusal to renew the permission and, consequently, the lease, on the basis of the said policy decision, is arbitrary and unjustified in asmuch as the petitioner has complied with all the necessary requirements as pro vided by 2009 Rules for obtaining renewal of permission. 6. The petitioner has, therefore, sought for issuance of an appropriate Wri t of Mandamus declaring the policy decision, dated 02.06.2010, as unconstitution al and illegal and violative of the provisions of renewal as prescribed by 2009 Rules. 7. Resisting the writ petition, the Secretary to the Government of Meghalay a, Transport Department, has averred, in his affidavit-in-opposition, that the r enewal of permission, under 2009 Rules, is not automatic and the petitioner cann ot claim renewal of permission as a matter of right and though the renewal appli cation, submitted by the petitioner, was duly processed, the same could not be r enewed due to the policy decision, which the Government had taken, on 02.06.2010 , as indicated hereinbefore. The policy decision does not only apply to National Highway 62, but also applies to all the National Highways including National H ighway 44 inasmuch as the policy decision contemplates setting up of check gates at every entry and exist points of all the inter-State roads and not merely at National Highway 62. 8. We have heard Mr. A.K. Bhattacharyya, learned Senior counsel, appearing on behalf of the petitioner, and Dr. B.P. Todi, learned Addl. Advocate General, Meghalaya, appearing on behalf of the State of Meghalaya. 9. Mr. Bhattacharyya, learned Senior counsel, drawing our attention to the notification, dated 11.09.2003, the 2009 Rules, the Lease Agreement, dated 20.12 .2007, and the Government’s policy decision, dated 02.06.2010, has submitted tha t the Government’s refusal to grant permission is arbitrary and violative of the provisions of the 2009 Rules, when the petitioner, having complied with all the requirements, as regards renewal of permission in terms of 2009 Rules, has appl ied for renewal of permission for running and operating her weighbridge. The le arned Senior counsel submits that in view of the provisions for renewal of permi ssion as embodied in 2009 Rules and the renewal of lease as contained in the agr eement, the petitioner had legitimate expectation that her permission as well as the lease would be renewed as she has made huge investment in establishing the weighbridge and when she had complied with all the necessary requirements for re newal of the permission, the Government’s policy decision not to grant extension of the permission and/or the lease is arbitrary and illegal. 10. It is contended by Mr. Bhattacharyya that in the face of the provisions for renewal of permission, contained in 2009 Rules and the renewal clause in res pect of the lease, the petitioner must be taken to have acquired a perpetual rig ht to get the lease renewed and, hence, the policy decision, which the State Gov ernment claims to have taken, without repealing the 2009 Rules, cannot take away the petitioner’s right to avail renewal of lease. The learned Senior counsel r eiterates that as the policy decision pertains to National Highway 62, the same is not applicable to the petitioner’s weighbridge situated at National Highway 4 4. 11. Mr. Bhattacharyya further submits that the lease agreement, being perpet ual in nature, must be treated to have given the petitioner the right to demand, at least, one renewal of the lease. Support for this submission is sought to b e derived by Mr. Bhattacharyya from the decisions in State of Uttar Pradesh Vs. Lalji Tandon (AIR 2004 SC 32) and Syed Jaleel Zane Vs. P. Venkata Murlidhar (AIR 1981 AP 328). 12. Controverting arguments advanced on behalf of the writ petitioner, Dr. T odi, learned Addl. Advocate General, while supporting the Government’s policy de cision, submits that the renewal of permission, as provided by the 2009 Rules, is not automatic, but only an enabling provision and cannot, therefore, be treat ed to have vested in any person, such as the petitioner, any right, far less ind efeasible right, to demand automatic renewal of permission or demand renewal of permission as a matter of course. Dr. Todi submits that the State’s said polic y decision is applicable to the inter-State roads in the State of Meghalaya and, as such, the policy decision is not in respect of National Highway 62 alone. T he learned Addl. Advocate General submits that neither the provisions contained in the 2009 Rules nor the agreement, entered into between the parties on 20.12.2 007, disempower the Government from taking a policy decision in the larger publi c interest and as long as the Government’s policy decision, so taken, remains in the larger public interest, the petitioner cannot demand renewal of permission or renewal of lease as a matter of right by throwing into the wind the said poli cy decision of the Government. When the Government’s decision not to allow exten sion of permission and/or lease is based in public interest, such a decision can not be described, according to the learned Addl. Advocate General, as an arbitra ry and/or illegal decision and may not, therefore, be interfered with. 13. Having heard learned counsel appearing for the parties and on careful re ading of the pleadings as well as the materials on record, we find that there is no dispute that the petitioner’s weighbridge is situated at National Highway 44 nor is there any dispute that despite the fact that there is a provision for re newal of permission as regards Weighbridges under the 2009 Rules and there is an agreement between the petitioner on the one hand and Government of Meghalaya on the other, for renewal of the lease, the Government has refused to renew the pe rmission under 2009 Rules, and, consequently, the lease, on the ground of the po licy decision, dated 02.06.2010. 14. The question, therefore, is whether the refusal to renew the lease is su stainable in law? This question necessarily requires us to examine not only the nature of the agreement, which the parties had, but also the scope of renewal o f permission under the 2009 Rules, the validity and justification of the policy decision, dated 02.06.2010, and the impact thereof on the petitioner’s rights, i f any, to seek renewal of her permission and also the lease. 15. While considering the present writ petitions, it needs to be noted, at t he very outset, that the executive instructions, embodied in the Notification, d ated 11.9.2003, prohibited installation or operation of a weighbridge for commer cial purposes without permission having been granted, in this regard, by the Tra nsport Department. Clearly, therefore, no person should have legally installed o r operated a weighbridge, in the State of Meghalaya, without permission having b een granted by the Transport Department in accordance with the procedure laid do wn in the said Notification. In fact, the Notification, dated 11.9.2003, made it clear that pending finalisation and approval of the rules for installation, reg ulation and operation of weighbridges in exercise of the Government’s power conf erred by Section 138(2)(b) of the Motor Vehicles Act, 1988, the procedure, embod ied in the Notification, dated 11.9.2003, shall be followed in the matter of ins tallation and operation of weighbridges. 16. While considering the present writ petitions, it also needs to be noted that the agreement, in question, was executed, on 20.12.2007 between the Commiss ioner of Transport, on the one hand, and the present writ petitioner, on the oth er, and this agreement was entered into by the parties at the time, when the exe cutive instructions, as contained in the Notification, dated 11.9.2003, aforemen tioned, was in force. 17. Coupled with the above, one must also bear in mind that the agreement, i n question, refers to both lease and licence. While the lease was for a period o f three years with the provision of revalidation, annually, subject to performan ce and clearance of all the Government dues and fulfilment of the terms and cond itions of the lease by the lessee, the licence was granted for a period of three years, which was renewable at the time of making of an application, with a rene wal fees of Rs.250/-, subject to the condition that the application for renewal of licence was required to be made one month before the expiry of the term of th e licence with a penalty clause that failure to apply for renewal of licence wit hin time would attract termination of contract. 18. From the executive instructions contained in the Notification, dated 11. 9.2003, it is clear, as already indicated above, that it was illegal to install or operate a weighbridge for commercial purpose unless permitted by the Transpor t Department in terms of the conditions embodied in the said executive instructi ons. Even the 2009 Rules do not permit installation and operation of weighbridge without permission having been granted in terms of the provisions contained in the 2009 Rules. Unless, therefore, requisite permission is granted under 2009 Ru les, no installation or operation of a weighbridge, in the State of Meghalaya, i s legal. 19. No wonder, therefore, that Rule 3 of 2009 Rules provides that the Govern ment may install and maintain, by itself, as many weighbridges, for the purpose of Section 144 of the Motor Vehicles Act, 1988, and/or on such places as it may think necessary or may allow any private person, body of persons, company or org anization to install and maintain weighbridges on payment of lease amount to be determined, in each case, by the Government, after calling tender. This shows t hat as far as the Government is concerned, it may install and maintain its own w eighbridges on such places as it thinks fit or it may also allow any private per son, body of persons, company or organization to install and maintain such weigh bridges on payment of lease amount to be determined, in each case, by the Govern ment, after calling for tender meaning thereby that the Government has the prima ry right to install and operate weighbridges on such places as it thinks fit and , if it so decides, it may allow any private person, body of persons, company or organization to install and maintain such weighbridges on payment of lease amou nt to be determined by the Government. Rule 4 prohibits installation and runnin g of weighbridge by a person, who has not attain the age of 21 years. 20. Since the executive instructions, embodied in the notification, dated 11 -09-2003, and the 2009 Rules are not under challenge, we proceed on the premises that the Government had