WP(C) 5304/2006 BEFORE THE HON’BLE MR JUSTICE RANJAN GOGOI JUDGMENT AND ORDER (ORAL) 1. An order dated 16.10.2006 cancelling the lease of the petitioner for operation of the Bogibil (Choulkhowa ) to Karengbali Commercial Cargo cum Passe nger Ferry ( hereinafter referred to as Ferry Service) for the period from 28. 10.2005 to 20.10.2008 has been assailed in the writ petition. Another order of t he same date i.e. 16.10.2006 for operation of the aforesaid Ferry Service by the Respondent No.6 for the period from 21.10.2006 to 20.10.2007 has also been assa iled in the present writ petition. 2. The facts necessary for an effective adjudication of the issues involved in the writ petition may be noticed at this stage. By an order dated 4.10.2005, passed by the Director, Inland Water Transp ort, Govt. of Assam, a lease to operate the Ferry Service in question was grante d to the petitioner for the period as already noticed. In terms of the agreement executed by and between the parties though the lease period was to be for 3 ye ars , fresh agreements were required to be executed on the expiry of every 6 mon ths and payment of the lease money as mentioned in the order dated 4.10.2005, wa s required to be made. Under Clauses 7 and13 of the Agreement executed by and be tween the parties, it was visualized that the lessee would put into service only such boats which had a proper registration and valid service certificate. The agreement also visualized that the boats pressed into service are duly insured by any nationalized Insurance Company. In terms of the lease granted to the petitioner and the agreement e xecuted, as noticed above, and upon payment of the first instalment of the dues payable, the petitioner stated operating the Ferry service w.e.f. the stipulate d dated i.e. 21.10.2005. However, it appears that from the month of January,2006 , itself, disputes and differences between the parties cropped up with regard to the deployment of boats by the Lessee and alleged violation of clauses 7 and 13 of the Agreement. Eventually, the said dispute led a situation where on a find ing that unauthorized boats were being used by the lessee, the Department sought to recover a penalty of over Rs.6.00 lakhs from the petitioner. As the petition er did not respond to the notices issued requiring him to pay the said amount, t he lease in question was cancelled. Thereafter, a fresh lease was granted to the Respondent No.6 for the period as already noticed. Aggrieved , this writ petiti on has been filed contending the cancellation of the petitioner’s lease to be an arbitrary act, disclosing no good reasons in support thereof. The grant made in favour of the Respondent No.6 has also been assailed on a largely similar basis . 3. Though voluminous affidavits have been filed by the Respondent Nos 1 ,2,3,4,5 and 6 enclosing several documents and each of the said affidavits have been replied to by the petitioner, a perusal of the said affidavits,particularl y the affidavit of the Director , Inland Water Transport, would go to show that the dispute lies within a short compass. As the version put forward by the Dir ector is the official version , the Court would like to consider the said versio n in the first instance. 4. The Director, Inland Water Transport in the affidavit filed has take n the stand that as the petitioner had pressed into service six unauthorized boa ts, the particulars of which are available in the report prepared by the Assist ant Commercial Officer, Inland Water Transport, Dibrugarh dated 4.8.2006, penalt y was decided to be imposed which direction not having complied with by the peti tioner, the Department was left with no option but to cancel the lease itself. The Director, in the affidavit filed, has further stated that, from time to tim e , the Additional Deputy Commissioner, Dibrugarh had drawn the attention of the Department and its jurisdictional Officers based at Dibrugarh with regard to u tilization of unauthorized boats by the petitioner while operating the Ferry Ser vice. According to the Director, the petitioner was repeatedly told to mend his ways and not to utilize any such unauthorized boats in the Ferry Service. As the petitioner did not pay any heed to the warning given by the Department, the Dir ector took the decision to impose penalty on the petitioner at the rates stipula ted. The said penalty was worked out at Rs.6.49 lakhs by the Commercial Officer of the Inland Water Transport , Dibrugarh who had informed the petitioner on t he said fact. As the penalty in question was not paid , the Department had no option but to cancel the lease of the petitioner and refrain from grant of a fr esh lease w.e.f. 21.10.2006. Thereafter, according to the Director the available applications for operation of the Ferry Service were considered and the Respond ent No.6 having been found to have made most lucrative and viable offer, the imp ugned order of fresh lease has been made in favour of the Respondent No.6 by the Director by the order dated 16.10.2006. 5. The stand of the Director being what has been noticed hereinabove, it wil l be necessary for the Court to put on record a brief resume of the corresponden ces exchanged by and between the parties so as to enable the Court to go into th e legality of the decision making process that had led to the impugned cancellat ion and grant of the lease in favour of the Respondent No.6. The records in original made available by Shri Bhuyan, learned Departm ental Counsel, have been duly perused by the Court . On such perusal, it is clea r that as early as on 6.1.2006, the petitioner was informed by the Commercial Of ficer, Inland Water Transport , Dibrugarh that he has been using unauthorized b oats to operate the Ferry Service and that he should refrain from doing so. The letter dated 6.1.2006 was followed by another letter dated 4.2.2006. There was a public complaint dated 5.4.2006 in this regard. On 11.4.2006, the petitioner s ought approval for use of 4 boats in addition of the one authorized boat, deploy ment of which was already permitted. On 1.6.2006 three of the boats in respect o f which the petitioner sought permission for deployment, was allowed. Earlier to that, on 12.5.2006, the petitioner was granted permission to use two other boat s i.e. SB Arsang and SB Taha, which belonged to another lessee. 6. While the matter was so situated, on 18.7.2006, the Addl. Deputy Commiss ioner, Dibrugarh wrote a letter to the Commercial Officer, Inland Water Transpor t , Dibrugarh with regard to the use of unauthorized boats by the petitioner. O n 24.7.2006, the complaint of the Addl. Deputy Commissioner was forwarded to the Director. On 28.7.2006, the Commercial Officer, Dibrugarh in reply to the lett er dated 18.7.2006 wrote to the Addl. Deputy Commissioner stating that necessar y action is being taken to ensure that no unauthorized boats are pressed into th e service by the petitioner . A copy of the said communication was endorsed to t he petitioner as well as to the Assistant Commercial Officer, IWT, Dibrugarh who was directed to make an enquiry into the use of unauthorized boats by the petit ioner. It appears that the Assistant Commercial Officer, IWT,Dibrugarh, conducte d an enquiry and submitted a report dated 4.8.2006 stating that, on verification , the petitioner was found to have been using six unauthorized boats. It will, however, be necessary to note that in the enquiry held by the Assistant Commerci al Officer, IWT the petitioner was not involved i.e. allowed to participate. Be that as it may, the enquiry report dated 4.8.2006 of the Assistant Commercial Of ficer, Dibrugarh was sent to the Director seeking his permission to impose a pe nalty on the petitioner. While the matter was so situated, the Addl. Deputy Comm issioner, Dibrugarh sent a reminder to the Commercial Officer, Inland Water Tra nsport, Dibrugarh to the effect that some action against the petitioner is nece ssary. On receipt of the said letter of the Addl. Deputy Commissioner, Dibrugarh , a reminder, in turn, was sent to the Director requesting a decision on the que stion of penalty to be imposed on the petitioner. On 26.9.2006, the Director app roved the imposition of penalty on the petitioner. Thereafter, on 5.10.2006, the Commercial Officer, IWT, Dibrugarh imposed a penalty of Rs.6.49 lakhs on the pe titioner. By another order of the same date i.e. 5.10.2006 the Director informed the petitioner that in the event the petitioner fails to pay the penalty, his l ease will be liable to be cancelled. Thereafter, on 16.10.2006,the impugned canc ellation was made by the Director. 7. As against the aforesaid facts, which are available on record, the stand o f the petitioner may now be noticed. In the affidavits filed by the petitioner, the petitioner has denied that, at any point of time, he had used or pressed into service any unauthorized boat to operate the Ferry Service. The petitioner has brought on record a communication dated 18.8.2006 issued by him to the Comm ercial Officer, Inland Water Transport, Dibrugarh wherein the petitioner had sta ted that, apart from the main boat which was authorized to be used the petitio ner was operating 4 other boats in respect of which authorization/permission had been granted by the Inland Water Transport. In the letter dated 18.8.2006, the petitioner had further mentioned that there were two other boats utilized by him from time to time to ferry VIPs as well as students and patients coming to the Medical College. The petitioner had taken the further stand that the use of the aforesaid two boats was known to the Department and process of grant of permi ssion to use the said two boats was going on. There is another letter dated 23 .9.2006 of the petitioner, on record, which is more or less to the same effect . The aforesaid two communications are available in the affidavit filed by the p etitioner in reply to the counter affidavit filed by the Respondent No.6. 8. The above stated facts of the case as evident from the pleadings of the par ties and the records in original, as placed before the Court, makes it abundantl y clear that though there were numerous correspondences issued by the Department to the petitioner pointing out the alleged use of unauthorized boats, the Petit ioner had denied the use of any such unauthorized boats. In this regard the con tents of the petitioner’s letters dated 18.8.2006 and 23.9.2006 have already bee n noticed. In none of the communications issued by the Department, the petitione r was informed of the precise details of the unauthorized boats along with their registration number and particulars that were allegedly used in the Ferry S ervice. In the enquiry held by the Assistant Commercial Officer, Inland Water Tr ansport, Dibrugarh leading to the report dated 4.8.2006, wherein six unauthorize d boats were identified, as already noticed, the petitioner was not involved or associated. In such circumstances, in view of the letters issued by the petition er on 18.8.2006 and 23.9.2006, it must be held by the Court that the finding of the Department about the use of six unauthorized boats by the petitioner are th e consequences of an exparte decision of the Respondents. That apart, the materi als on record leaves the Court satisfied that, at no point of time, the petition er was specifically informed that the authorities had in contemplation the cance llation of the petitioner’s lease on grounds made known and specified. No opport unity was given to the petitioner to contest the proposed cancellation. As the a bove facts, in the considered view of the Court, clearly demonstrate that actio ns prejudicial to the petitioner have been taken on the strength of an unilate ral decision of the Department without giving any opportunity to the petitioner, it must be held that the impugned cancellation made is in violation of the basi s principles of natural justice. As the grant in favour of the Respondent No. 6 has necessarily to be understood to be consequential to the cancellation of the petitioner’s lease, the Court is of the view that it will not be called upon, at this stage, to decide on the validity of the grant made in favour of the Respon dent No.6, at the instance of the writ petitioner. 9. An order found to be legally infirm on account of violation of the princi ples of natural justice, particularly, on the ground of denial of reasonable opp ortunity, though a nullity in law, will not come in the way of a repeat of the same exercise after complying with all requirements of law and the principles of natural justice. I therefore allow the writ petition, Set aside the order dated 16.10.2006 cancelling the petitioner’s lease, with liberty to the Department to re decide the matter after giving the petitioner due opportunity. 10. This Court has noticed that by virtue of the interim order passed by t his Court, the Ferry Service is being run by the Department though for the smoot h conduct of its business the Department had intended to appoint a lessee. In su ch circumstances, I am of the view that the Department should be directed to re decide the matter within a period of 30 days from today during which period the Ferry Service will continue to be operated by the Department. Thereafter, depend ing on the outcome of the fresh process that the Department may now undertake, f urther orders ,in accordance with law, will be passed with regard to the operati on of the Ferry Service. 11. Consequently and in light of the above discussions the writ petition is allowed to the extent indicated above.