WP(C) 5318/2008 BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE IA ANSARI This writ petition is filed with the prayer as follows :- & & it is therefore, humbly prayed that your Lordship may be pleased to consid er the above, call for the records, issue rule, calling upon the respondents to show cause as to why a writ of mandamus shall not be issued declaring the approv al/permission for operating the weighbridge at Mookyniang, Khliehtyrshi in favou r of the private respondent No.4 as conveyed by the impugned letter dated 14.11. 2008 issued by the respondent No.2 as well as the consequent settlement Order in favour of Respondent No.4 to operate the weighbridge at Khliehtyrsi as illegal and unconstitutional and thereafter issue a writ of certiorari setting aside and quashing the impugned impugned letter dated 14.11.2008 issued by the respondent No.2 addressed to the respondent No.3 conveying the Government approval therein allowing the private respondent No.4 to operate the weighbridge, Mookyniang, Kh liehtyrshi at Jaintia Hills District as well as the consequent settlement Order of the said weighbridge in favour of Respondent No.4 as unconstitutional, null a nd void and thereafter direct the official respondents that settlement in respec t of the weighbridge at Khliehtyrshi, Jaintia Hills District belonging to the Tr ansport Department could be made only by public tender or auction and upon cause or causes being shown and after hearing the parties be pleased to make the writ absolute and or pass any other order or orders as your Lordship may deem fit an d proper. 2. The State of Meghalaya, the 1st respondent herein, established a weighbridge at a place known as Mookyniang, Khliehtyrshi at Jaintia Hills Distr ict in the year 1992. It appears that such an establishment was by the Departmen t of Transport of the State of Meghalaya. It is not very clear from the record a s to what was the purpose for which the State established such a weighbridge in the year 1992 nor such an enquiry is necessary for the present purpose. From the pleadings it appears that such a weighbridge established by the State of Meghal aya was lying idle till the year 2000. In the year 2000 by an agreement with a p rivate party the State of Meghalaya leased out the said equipment. Aggrieved by the same some persons approached this cdourt by way of a writ petition being WP( C) No.267(SH)/2001. During the pendency of the said writ petition the State of M eghalaya issued a tender notice dated 26-11-2001 inviting tenders from the indiv iduals interested in operating the above mentioned weighbridge. In view of the s aid tender notification the above mentioned writ petition came to be closed by t his court without adjudicating the rights and obligations of the parties to the writ petition. It appears that this court while disposing of the writ petition d irected that till the settlement process initiated by the tender notice dated 26 -11-01 comes to an end the State of Meghalaya would operate the weighbridge and would not permit the private party, in whose favour the settlement was made, whi ch was the subject matter of the said writ petition, to operate the same. 3. Eventually the settlement was made pursuant to the tender notice dated 26-11-01 in favour of one Smti Nela Niangti. The said settlement also cam e to be challenged before this court by way of another writ petition being WP(C) No.34(SH)/2002. This court by an order dated 15-3-02 also set aside the settlem ent, the details and the reasons of which may not be necessary for the present p urpose as the said judgment became final. 4. Consequent upon the said judgment a fresh tender notice dated 18 -4-02 came to be issued and this time another person by name Smti Arwotki Sumar became the successful tendered and obtained the settlement vide order dated 19-9 -02. Once again the settlement was questions before this court by another writ p etition being WP(C) No.355(SH)/2002 and the same was dismissed. On appeal, in WA No.710/02 a Division Bench of this court by its order dated 28-1-03 affirmed th e judgment in the writ petition. The matter was further carried to the Supreme C ourt by way of SLP(C) No.5185/03. The Supreme Court allowed the appeal, set asid e the settlement and directed the State to call for fresh tender for settlement of the said weighbridge. 5. Pursuant to the decision of the Supreme Court once again the Sta te of Meghalaya issued a fresh tender notice and in the process settled the weig hbridge by way of a lease to Smti M Passah by order dated 7-4-05. It appears fro m the record that the said settlement was valid for a period of three years endi ng with 6-4-08. 6. It appears that during the subsistence of the said settlement th e successful tendered Smti M Passah was asked to shift the weighbridge from the existing location for various reasons and traffic congestion etc. It is admitted on all hands that on such decision by the State to shift the location of the we ighbridge the above mentioned Smti M Passah, as a matter of fact, established a weighbridge on her own cost at a new location at 7th Mile of Jowai Khliehriat Ro ad. It is father difficult to understand the nature of the so called permission granted by the State, in the background of the above mentioned facts, that if th e machineries of the weighbridge established at the above mentioned new location is owned by above mentioned Smti M Passah, we do not understand the necessity o f obtaining the permission of the State for such a shifting. Any way, that state of affairs need not deter us for the present. But in view of the said shifting of the weighbridge, that was being operated by the above mentioned Smti Passah, pursuant to the settlement dated 7-4-05, the old weighbridge was lying idle at the place of its original location. While the said equipment was lying idle t he respondent No.4 herein approached the State of Meghalaya by way of an applica tion praying that she may be allowed to run the weighbridge on lease to check th e weigh the vehicles plying from Shillong to Jowai and beyond. By letter dated 1 1-9-08 the Commissioner of Transport, Meghalaya recommended to the State to cons ider the request of the 4th respondent as follows :- Therefore, in order to earn more revenue for the Government and revive the Weig hbridge at Khlietyrshi, perhaps the Weighbridge can be leased out to the applica nt, Smt Mary Tariang to utilize it on behalf of the Transport Department and all ow her to weigh only the vehicles plying from Shillong to Jowai and beyond at an nual Premium amount of Rs.30.00 lakhs. By the proceeding dated 14-11-08 the Govt of Meghalaya informed the Commissioner of Transport that his recommendation on the above application w as accepted subject to the various conditions specified in the order. Pursuant t o the said decision dated 14-11-08 of the State, it appears, a settlement came t o be made to the 4th respondent by the 3rd respondent on 14-11-08. 7. Challenging the said settlement the present writ petition is fil ed. 8. The only ground on which the settlement made in favour of the 4t h respondent is questions is that since the equipments of the weighbridge is own ed by the State of Meghalaya the same could not have been settled with the 4th r espondent by private negotiations without following a transparent process of ten dering from the interested parties. 9. Mr AK Phookan, learned senior counsel for the petitioner submitt ed that it is too well settled in law that properties owned by the State are nor mally required to be alienated, if at all the State takes a policy decision to a lienate the property by a transparent and rational process of inviting tenders a nd since no such procedure is followed in making the settlement in favour of the 4th respondent, the settlement in favour of the 4th respondent is illegal and a rbitrary. 10. The State of Meghalaya, on the other hand, filed an affidavit da ted 8-6-09 on behalf of the first three respondents in this writ petition. At pa ra 5 of the said affidavit it is stated as follows :- 5. & your deponent states that the Mookynniang Weighbridge was settled with one of the tenderers Smti. M. Passah at an annual premium of Rs.75 lakhs to be paid to the Government. Accordingly Smti. M. Passah was operating the said weighbrid ge since the year 2005. Thereafter, in the year 2007 Smti Passah applied to the Transport Department to shift her operation to another place called Pasyih in th e district of Jaintia Hills where she had constructed her own weighbridge since it was inconvenient on her part to operate the weighbridge at Mookynniang. Accor dingly, the Transport Department, Govt of Meghalaya after consideration of the s aid proposal permitted her to operate her own weighbridge at Pasyih w.e.f. 25th January, 2008 and she was operating the said weighbridge. It is clear from the above extract that Smti M Passah, the earli er lessee, who obtained the lease for the year 2005 constructed her own weighbri dge pursuant to the permission granted to her for shifting the weighbridge of wh ich she was the lessee. It appears from the said affidavit that since the lessee Smti Passah decided to construct her own weighbridge the existing weighbridge, which is the subject matter of dispute in the present petition, which was being run by Smti Passah, was lying idle w.e.f. 24-1-08 and as a consequence, accordin g to the said affidavit, the State incurred a huge loss and, therefore, they dec ided to settle the abandoned weighbridge of which the above mentioned Smti Passa h was the original lessee and, therefore, they accepted the offer made by the 4t h respondent. In this regard at para 7 of the affidavit it is stated as follows :- 7. That regarding the statements made in paragraphs 8,9 & 10 of the petition, y our deponent states that the Mookynniang Weighbridge was closed for ten months w .e.f. 24.01.08 to 14.11.08 causing a huge loss to the State Revenue and there wa s likelihood of the infrastructure and weigh machines getting damaged. Further, the Comptroller an Auditor General of India in his Financial Report ending 31.12 .07 had strongly observed that failure of the department to detect overloaded tr ucks and enforcement of the Motor Vehicle Act, has incurred a loss of Rs.707 cro res to the State Government. Following the abovementioned observations, the Tran sport Department has been making all efforts to ensure that non-realisation of f ines on trucks carrying excess loads does not occur. Keeping in view the aforesa id facts and exigency of the matter, the State Government considered it best to immediately operate the said weighbridge at Mookynniang. Accordingly, when the R espondent No.4 offered her willingness to operate the weighbridge at Mookynniang on behalf of the Transport Department on payment of annual premium of Rs.30 lak hs, the Government of Meghalaya examined the proposal of the Respondent No.4 and allowed her to operate the Mookynniang weighbridge on provisional basis by foll owing the office Memorandum dated 11.09.03 under No.TPT/40/97/Pt.4 containing gu idelines for granting permission to operate the weighbridges in the State of Meg halaya. 11. Called upon to explain the nature of the loss of Rs.707 crores i n the above mentioned paragraph Mr M Nath, learned counsel appearing for the Sta te of Meghalaya submitted that under the Motor Vehicles Act the State is entitle d to collect penalties for the overloading of motor vehicles. The fact is that t he motor vehicle is overloaded or not can only be determined by weighmen of the vehicle. Since the weighbridge in question was abandoned the State was unable to carry out the weighing operation of various vehicles passing through the partic ular route and according to the assessment of the State if only a proper weighme n of the vehicles passing through the route, on which the weighbridge in questio n is located, could be made the State would have realized penalties to the tune of Rs.707 crores. Whether the State did in fact suffer loss of such an amount or not, in our view, is purely in the realm of conjecture, nonetheless the State i s entitled to make its own assessment on the basis of its own resources. We do n ot propose to go into the accuracy of such an assessment. Assuming for the sake of argument that the above mentioned assessment made by t he State is even appro ximately correct, in our view, there is no justification for the State for settl ing the weighbridge on private negotiations without inviting tenders from all th e interested parties. On this background alone the writ petition is required to be allowed, as prayed for. 12. However, before finally disposing of the matter, we must record the submission made by the 4th respondent. Mrs SP Hussain, learned counsel appea ring for the 4th respondent submitted that the State having permitted the previo us lessee of the weighbridge to shift the location could not have called for ten der before the expiry of the arrangement entered into by the above mentioned Smt i Passah, which was valid till the month of April, 2008. The submission is inherently contradicted, apart from the plea o f the 4th respondent regarding the right of the State to call for tenders during the subsistence of the arrangement with the above mentioned Smti Passah. If the State did not have the authority to call for tenders during the subsistence of the arrangement with the above mentioned Smti Passah, the State could much less have entered into a private negotiation with the 4th respondent or any other per son. 13. We must place on record that this entire arrangement of settling the weighbridge, owned by the State, to private parties on terms and conditions , which are not very clear, apart from the process by which such settlement is m ade, is wholly unsatisfactory. From the narrations made above and the pleadings before us all that we understand is that the State of Meghalaya for various purp oses including the enforcement of the Motor Vehicles Act is entitled to weigh th e cargo carried by vehicles from time to time. It is an obligation coupled with the authority of the State in the enforcement of law and in discharge of the sai d obligation in exercise of the authority the State is undoubtedly entitled to m ake appropriate arrangements for weighmen of the vehicles carrying cargo. Such w eighmen necessarily requires establishment of appropriate equipment/apparatus to make the weighmen. The State could not establish the equipment/apparatus of its own and entered into an appropriate arrangement with a private party, who owns such equipments. In the instant case the equipments/apparatus happens to be owne d by the State. By the impugned settlement, which is the subject matter in the p resent writ petition, though the State owns the equipments/apparatus obviously f or its own reasons the State is not willing to operate the equipments and, there fore, the operation of the equipment is entrusted to a third party by means of a settlement . However, the relevant consideration for making the settlement, in our view, cannot obviously be the ability of interested parties who offer the h igher rates for obtaining such settlement, because a party making such an offer to the State, is necessarily required to re-collect the amount during the course of operation of the settlement, which in turn means collecting the money from t he vehicles which are brought to the weighbridge. Eventually the nature of the a ctivity of the lessee which essentially is in the nature of a service to the Sta te would become an activity of extortion of money from the vehicles, brought for the purpose of weighing, without any authority of law whatsoever. Such a situat ion is obvious from the very fact of the incessant litigations regarding the opp ortunity to obtain the settlement from the State. 14. In the circumstances, we declare that the settlement made in fav our of the 4th respondent is illegal and the same is set aside. The State is dir ected to refund the balance amount of money collected from the 4th respondent. 15. The writ petition stands disposed of.