Patna High Court - Orders
Bihar School Examination Board vs M/S Maa Durga Enterprises & An on 4 February, 2010
Author: Dipak Misra
Bench: Dipak Misra
IN THE HIGH COURT OF JUDICATURE AT PATNA
LPA No.226 of 2010
1. Bihar School Examination Board (Higher Secondary)
Patna
2. The Secretary, Bihar School Examination Board (Higher
Secondary), Patna ................ Appellants
Versus
1. M/S Maa Durga Enterprises Sri Krishna Nagar, Chakaram
Mod, Patna through its proprietor Anand Kumar Yadav,
s/o Ramasis Roy, resident of Mohall S.K.Nagar,
Chakaram Mod, Patna
2. Bharat Printing Works Off Set Printers, L/64 Sri Krishna
Nagar Chakaram mod, through its Proprietor Arun Kumar
Sinha, son of late Rekhishwari pd. Sinha, resident of
Mohalla S.K. Nagar, Patna ... . Petitioners -
Respondents 1st Set.
3. Bihar State Small Industries Corporation Ltd., through its
M.D., Indra Bhawan, Ram Charitra Singh Path, patna
4. Managing Director, Bihar State Small Industries
Corporation Ltd., Ram Charitra Singh Path, Patna
.... Petitioners - Respondents 2nd Set.
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For the Appellants : Mr. P.K. Shahi, Advocate General,
Mr. Purnendu Singh, AC to AG
For the respondents: Mr. K.D.Chatterjee, Sr. Advocate
Mr. V. K. Tripathy, Advocate
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2 4/2/2010IA. No.1082 of 2010 This is an application for condonation of delay of 67 days in preferring this appeal.
Heard Mr. P.K.Shahi, the learned Advocate General, along with Mr. Purnendu Singh, the learned ;counsel appearing for the appellants, namely, Bihar 2 School Examination Board and its functionary, and Mr. K.D. Chatterjee, the learned Senior Counsel, along with Mr. V.K.Tripathy, the learned counsel for the respondents - writ petitioners.
Regard being had to the assertions made in the application, we are of the considered opinion that sufficient grounds have been made out for condonation of delay and accordingly the delay in filing the appeal stands condoned.
Interlocutory application stands allowed. LPA. No.226 of 2010 As we have condoned the delay, we are inclined to take up the appeal for admission.
Admit.
On consent of learned counsel for the parties it is finally heard.
Questioning the legal sustainability of the order dated 7.10.2009 passed by the learned Single Judge in CWJC. No.12998 of 2003, the Bihar School Examination Board (for short, „the Board‟) and its functionaries have preferred this appeal under Clause - 3 X of the Letters Patent.
The expose‟ of facts are that the respondent nos. 1 & 2 invoked the jurisdiction of this court under Article 226 of the Constitution of India for issue of a writ of mandamus to the respondents therein to make payment of a sum of Rs.36,49,605/- along with interest as they had supplied certain stationary items to the present appellants. The learned Single Judge, as is manifest from the order, adverted to the stand and stance put forth in the writ petition and the counter affidavit filed by the Bihar State Small Industries Corporation Corporation Limited (for short, "the Corporation‟), and expressed the view that amount payable to the writ petitioners was admitted by the Corporation. To arrive at the said conclusion, the learned Single Judge placed reliance on certain office notes of the said Corporation and eventually directed as follows:
"In the result, we reach the conclusion that the petitioners did supply the stationary materials to the Board through the instrumentality of the Corporation valued at Rs.41,38,605/-, and had received a sum of Rs.4,89,000/- after tax deducted at source. In other words, Rs.36,49,605/- is due to the petitioners. Respondent nos. 3 & 4 are hereby directed to release a sum of Rs.36,49,605/- to respondent 4 no.2 to be passed on to the petitioners along with interest at the rate of 15% from the dates the amount(s) became due till the date of payment. Payment to the petitioners shall be accompanied with chart of calculation."
Questioning the pregnability of the order passed by the learned Single Judge, it is submitted by Mr. P.K. Shahi, learned Advocate General, that the learned Single Judge has fallen into error by directing release of the amount when there is no unequivocal and categorical admission by the Board and, in fact, there is an affidavit by the Board that it is not liable to pay the same. Mr. Shahi, learned Advocate General, has referred to the office notes prepared by the authorities of the Board and stated that the same were internal notes and had not been concretized to the shape of an order as the same was never communicated to the writ petitioners.
Mr. K.D. Chatterjee, learned Senior Counsel appearing for the writ petitioners - respondents, contended that the order passed by the learned Single Judge is absolutely defensible inasmuch as he has analyzed the office notes which indubitably lead to 5 an irrefragable conclusion that the amount was due to the respondents and the same was to be paid and in that event the conclusion arrived at by no stretch of imagination can be faulted. It is further submitted by Mr. Chatterjee that analysis of the learned Single Judge on the basis of the office notes goes a long way to show there was admission on the part of the Board to pay the amount.
Upon perusal of the order of the learned Single Judge and after bestowing our anxious consideration, we are of the considered opinion on the basis of the note- sheet an inference could not have been drawn that the sum has been admitted to be paid by the Board, more so, when the counter affidavit pointed out to the contrary. On a scrutiny of the counter affidavit, it is evincible that the Board had disputed the claim. When there is no clear cut admission, we are afraid, on the basis of the un-communicated office notes no money claim could have been settled in the impugned order.
In view of the aforesaid, we are unable to 6 concur with the order of the learned Single Judge and accordingly set aside the same.
Though we have set aside the order of the learned Single Judge, yet on a query being made from Mr. P.K. Shahi, learned Advocate General, whether the Board would like to afford an opportunity of hearing to the writ petitioners and advert to the claims as put forth by them so that whatever is the claim as per law can be settled. We must say with appreciation that Mr. Shahi, the learned Advocate General, fairly stated that the Board has no objection.
In view of the aforesaid, we grant liberty to the writ petitioners to file their claim with supporting documents within a period of four weeks before the Secretary of the Board, who shall deal with the same and put before the Chairman of the Board and whereafter an objective decision shall be taken and communicated to the claimants.
As conceded to by Mr. Shahi, learned
Advocate General, the order that would be passed by
the Board would ascribe the reasons in detail so that the 7 claimants can know where they stand.
It is needless to state that if in the ultimate eventuate the claimants - writ petitioners are dissatisfied with the order they can always approach the appropriate legal forum as advised in law.
In the result, the writ petition is allowed and the order passed by the learned Single Judge is set aside with the aforesaid observations and directions. There shall be no order as to costs.
(Dipak Misra, CJ.) (Ramesh Kumar Datta, J.) Neyaz/