Jharkhand High Court
M/S. Data Tech vs The State Of Jharkhand Represented ... on 4 August, 2021
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 4559 of 2018
M/s. Data Tech, Ranchi a proprietorship concern represented through its
proprietor namely Alok Kumar Dubey ..... ... Petitioner
-Versus-
1.The State of Jharkhand represented through its Chief Secretary
2.The Secretary, Planning-cum-Finance Department, Government of
Jharkhand
3.Shri Krishna Institute of Public Administration, Government of Jharkhand,
Ranchi
4. The Director General, Shri Krishna Institute of Public Administration,
Government of Jharkhand, Ranchi
5. The Joint Director, Shri Krishna Institute of Public Administration,
Government of Jharkhand, Ranchi
.... .... Respondents
CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Ms. Surabhi, Advocate For the Respondents : Mr. Ashwini Bhushan, A.C. to Sr.S.C.- III Order No. 09 Dated: 04.08.2021 The present case is taken up today through video conferencing.
2. The present writ petition has been preferred for quashing letter no. 948 dated 28.08.2018 issued by the Joint Director, Shri Krishna Institute of Public Administration, Ranchi (the respondent no.5) whereby the petitioner has been informed that due to certain reasons, supply order as contained in letter No. 74 dated 14.06.2018 has been cancelled by the respondent no. 4 and thus the petitioner has been requested to take back 18 computers as well as 01 multifunctional Laser Jet Printer of "HP Company" supplied by it through challan no. 40/18 dated 09.07.2018. Further prayer has been made for directing the respondents to make payment of the admitted dues of Rs. 11,22,357/- along with suitable interest to the petitioner against invoice dated 09.07.2018 with respect to supply of 18 numbers of desktop computers (Dell) and one multipurpose Laser Jet Printer (HP) to Shri Krishna Institute of Public Administration, Government of Jharkhand (respondent no.3) which have already been installed and are functional.
3. The factual background of the case as stated in the writ petition is that the Department of Planning-cum-Finance, Government of Jharkhand (respondent no.2) invited tender notice dated 09.09.2016 from the eligible bidders for fixing rate/supply of stationery and other articles as well as computer and its peripherals. The petitioner submitted its bid for supply of computer and its peripherals and was found the lowest bidder for the said category. It had quoted the rate of Rs.52,275/- for each -2- desktop computer of "Dell Company" with the specification mentioned therein and Rs. 10,200/- for multifunctional Laser Jet Printer of "HP Company". The supply order as contained in letter no. 74 dated 14.06.2018 was issued in favour of the petitioner for supply of 18 numbers of desktop computers of "Dell company" and one multifunctional Laser Jet Printer of "HP Company" as finalized by the departmental purchase committee of the respondent no. 2 at the rate quoted by the petitioner. The petitioner supplied the materials to the respondent- Institute raising bills for a sum of Rs.11,22,357/- vide challan no. 40/2018 dated 09.07.2018. The respondent no. 5, vide letter no. 99 dated 17.07.2018, while acknowledging supply of 18 desktop computers, asked the petitioner to install all the computers in computer lab of the said institute by 20.07.2018 with an assurance that payment of the bills would be made thereafter. The petitioner installed all the computers on 19.07.2018 in the computer lab of the respondent no. 3 which were working satisfactorily. The representative of the respondent no. 5 who was present at the time of installation also signed the installation report. After waiting for more than forty days, the petitioner, vide letter dated 28.08.2018 requested the respondent no.5 to release the payment of bills, however instead of making payment, the respondent no.5 issued impugned letter no. 948 dated 28.08.2018 to the petitioner informing that the supply order as contained in letter no. 74 dated 14.06.2018 has been cancelled for certain reasons by the respondent no. 4 and it was requested to take back all the 18 desktop computers and 01 multipurpose Laser Jet Printer supplied vide challan No. 40/18 dated 09.07.2018. The petitioner made representation dated 29.08.2018 before the respondent no. 5 showing its inability to take back the supplied materials as after obtaining technical verification report of all the computers, the consignment serial numbers of computer systems was already registered with "Dell India Limited" for service support in the name of the respondent no. 3 and hence requested to release the payment within seven days. However, no action was taken on the petitioner's representation.
4. Learned counsel for the petitioner submits that the supply order as contained in letter no. 74 dated 14.06.2018 issued by the respondent no. 5 has been cancelled in most illegal and arbitrary manner with malafide -3- intention. The petitioner has already performed its part and it is not possible to take back the supplied and installed computers as well as printer which are functional in the said institute. It is further submitted that no reason has been assigned by the respondent no. 5 in the impugned letter dated 28.08.2018 while cancelling the said supply order. The computers supplied by the petitioner were imported against 10% Bank finance availing cash credit facility of Bank of Baroda and as such is also liable to pay interest to the Bank. The petitioner has already paid all the taxes/duties to the Government in the process of importing the computers from abroad and delivering the same to the respondent no. 3 and has been suffering huge loss and damage on account of delay in payment of the supplied materials. It is also submitted that the impugned letter has been issued without providing any opportunity of hearing to the petitioner as no prior show cause notice has been issued alleging any defect in the materials supplied by it. The respondent no. 2 and the State Rural Development Institute, Government of Jharkhand, Hehal, Ranchi had also placed orders for computers on the rate approved by the departmental purchase committee, Planning-cum-Finance Department. The respondent no. 5 had placed the supply order to the petitioner on the basis of the rate approved by the said departmental purchase committee and accordingly the materials were supplied. Thus there is no infirmity on the part of the petitioner who was never in a hurry to install the computers, rather it was the respondent no. 5 who had directed the petitioner to install the computers immediately for the purpose of imparting training to newly appointed administrative officers. It was for the respondent-Institute to decide as to whether any fresh tender was required to be floated for purchasing the computer sets and its peripherals or to proceed for purchasing the same at the rate approved by the departmental purchase committee of the respondent no. 2. Nevertheless, the respondents with their open eyes, chose to place the order to the petitioner for supply of computers as well as printer at the rate approved by the departmental purchase committee of the respondent no. 2. As such, the allegation of misrepresentation on the part of the petitioner in getting the supply order is baseless and the same has been made only in order to avoid payment of the supplied materials.
5. Per contra, learned counsel appearing on behalf of the respondents -4- submits that the petitioner has misrepresented the respondent-Institute for procuring supply of the desktop computers and HP printer. It is wrong to say that the computers are in use, rather the same are kept idle and vide impugned letter no. 948 dated 28.08.2018, the petitioner was requested to take back the supplied items. It is further submitted that no tender notice was issued for purchasing the supplied materials as would be evident from the file of the respondent-Institute. Purchase of computer sets by another Department/Institution at the rate fixed by the aforesaid purchase committee cannot be taken as a precedence for purchase by another department. As such, it has been mentioned in the impugned letter that for certain reasons, supply order as contained in letter no. 74 dated 14.06.2018 has been cancelled. It is also submitted that the loss suffered by the petitioner as alleged is not due to mistake of the respondent-Institute as the petitioner was supposed to know that a notice inviting tender was to be issued for purchase of any material by the government. It is further submitted that since due process was not followed for supply/purchase of the materials in the respondent-institute, there was no question of providing opportunity of hearing to the petitioner before cancellation of the same.
6. Heard the learned counsel for the parties and perused the materials available on record. The petitioner is aggrieved with issuance of the impugned letter dated 28.08.2018 whereby the respondent no.5 has informed it that the respondent no. 4 has cancelled the supply order for certain reasons also requesting to take back the computers and printer supplied by it to the respondent-Institute and has sought direction to the respondent-Institute to pay the admitted dues with suitable interest.
7. Before coming to the merit of the claim of the petitioner, it would be appropriate to refer few judgments of the Hon'ble Supreme Court wherein guidelines have been issued for the High Courts explaining the circumstances under which money claim can be entertained under writ jurisdiction.
8. In the case of Punjab National Bank and Others Versus Atmanand Singh and Others reported in (2020) 6 SCC 256, the Hon'ble Supreme Court after discussing several earlier judgments has summarized the law dealing with the scope of intervention by the High Court under its writ jurisdiction in the matter involving money claim.
-5-"19. The appellant-Bank has rightly invited our attention to the Constitution Bench decision of this Court in ThansinghNathmal (supra). In paragraph 7, the Court dealt with the scope of jurisdiction of the High Court under Article 226 of the Constitution in the following words:--
"7. ... The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.
(emphasis supplied)
20. Similarly, another Constitution Bench decision in Suganmal (supra) dealt with the scope of jurisdiction under Article 226 of the Constitution. In paragraph 6 of the said decision, the Court observed thus:--
"6. On the first point, we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. ... We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right."
(emphasis supplied) -6- And again, in paragraph 9, the Court observed as follows:--
"9. We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction."
(emphasis supplied)
21. In Smt. GunwantKaur (supra) relied upon by the respondent No. 1, in paragraph 14, the Court observed thus:--
"14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons."
(emphasis supplied)
22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law."
-7-9. In the aforesaid case, the Hon'ble Supreme Court has held that a writ petition should not be maintained merely for the reason that refund of money is claimed by the petitioner against the State as the claim for money can always be made by filing a civil suit. When the refund of money is claimed by filing a writ petition and the question of facts as raised is so complex in nature which requires production of documents and leading of evidences, then in such case the High Court must relegate the parties to the remedy of a civil suit. However, in case of admitted facts, the High Court may grant relief to the petitioner by examining the case on its own merit.
10. In the present case, the respondent-Institute while justifying the impugned letter has contended that the petitioner had misrepresented in getting the supply order in question issued in its favour. On the other hand, the claim of the petitioner is that the respondent no. 2 had floated a tender in order to fix the rate for supply of computer and its peripherals for the use of various sections and cells of the said department for the financial years 2016-17 and 2017-18. The petitioner was found as the lowest bidder in the said tender and rate offered by it was approved. Accordingly, the supply of computers and its peripherals were made to the Finance Department. The respondent no. 5, vide letter no. 74 dated 14.06.2018, placed supply order for 18 desktop computers of "Dell Company" and one HP multifunctional Laser Jet Printer at the rate approved by the departmental purchase committee of the respondent no.2. Supply of the computers and printer has not been denied by the respondent-Institute and the same are still in its possession. No allegation has been made by the respondent-Institute regarding any defect in the supplied materials. Moreover, no specific reason has been assigned in the impugned letter for cancellation of the supply order, rather it has been stated- "for certain reasons" which in my view appears to be completely vague and not sufficient to cancel the supply which has already been made by the petitioner and the same has been received by the respondent-Institute without any objection.
11. In the case of Mohinder Singh Gill & Another Vs. Chief Election Commissioner & Others reported in (1978) 1 SCC 405, Constitution Bench of the Hon'ble supreme Court has held as under:-
-8-"8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose, J. in [Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16] :
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Orders are not like old wine becoming better as they grow older.
A caveat"
12. Thus, it is settled law that any order which is bad in the beginning cannot be validated later on by supplementing additional grounds. Reason cannot be allowed to be added by any subsequent letter or conduct.
13. Moreover, the respondent-Institute has contended before this Court that the petitioner had misrepresented in getting the supply order issued in its favour, however no reason has been explained in the counter affidavit as to how the petitioner had misrepresented, rather it appears from the record of the case that the supply of the desktop computers and printer was made by the petitioner at the same rate as approved by the departmental purchase committee of the respondent no.2. The respondent-Institute being fully aware of the rate approved by the said committee had placed the supply order to the petitioner. A vague allegation of the respondent-Institute that the petitioner had misrepresented it in obtaining the supply order, is without any cogent proof and is only to somehow justify the impugned letter issued by the respondent no.5, which cannot be accepted.
14. So far the contention of the respondent-Institute that it is not bound by the rate approved by the departmental purchase committee of the respondent no. 2 and there was requirement of an open tender for placing an order in government department/institution, is concerned, I -9- am of the view that the said contention has no relevance in the present facts and situation as the respondent-Institute had acted on the basis of the rate approved by the said committee and had purchased the desktop computers and printer from the petitioner which have also been installed. Thus, the payment of the same cannot be denied by it alleging some irregularity in placing the order. Otherwise also, if the respondent- Institute was so concerned about the irregularity in placing order to the petitioner, it would have taken action against the erring officer who had placed the said supply order. It has not been stated in the counter affidavit as to whether any action has been taken against such erring officer. The payment to the petitioner cannot be denied for no fault on its part. The amount so claimed by the petitioner has also not been disputed by the respondent-Institute. Though the respondent-Institute has disputed the claim of the petitioner to the extent that the supplied materials are in use, the said fact does not improve the position of the respondent-Institute as the fact regarding supply and installation of the materials has not been disputed. Since the product has already been registered with the "Dell Company" in the name of the respondent- Institute, the impugned cancellation of the supply order appears to be arbitrary and unreasonable.
15. The petitioner has also claimed interest over the due amount of bill. In the case of Union of India Vs. Vertex Broadcasting Co. (P) Ltd. reported in (2015) 16 SCC 198, the Hon'ble Supreme Court has held as under:-
"12. If the licence fee and the earnest money have been forfeited unjustifiably by the Union, as we are inclined to hold, naturally, the licensees would be entitled to payment of interest. Award of interest is a measure of recompense for delayed payment. Interest also seeks to offset the decline in the value of money with time. Taking into account the totality of the facts and circumstances of the case, we are of the view that interest @ 6% p.a. from the date that the amounts were forfeited by the Union (licence fee and the earnest money) would serve the ends of justice. We, therefore, order accordingly and direct the Union to pay all such amounts along with interest at 6% p.a. within a period of eight weeks."
16. I am of the considered view that the respondent authority has arbitrarily withheld the bill presented by the petitioner amounting to Rs.11,22,357/- without any justifiable reason and as such the payment of pending bill shall also carry interest at the rate of 6% per annum from
- 10 -
the date of its presentation before the respondent no. 5.
17. Hence, the impugned letter no. 948 dated 28.08.2018 issued by the respondent no. 5 is hereby quashed. The respondent nos. 4 and 5 are directed to make payment of Rs. 11,22,357/- against the invoice dated 09.07.2018 for supply of 18 numbers of desktop computers (Dell) and one multipurpose laser jet printer (HP) which have been delivered to the respondent-Institute by the petitioner. The respondent nos. 4 and 5 are also directed to make payment of interest at the rate of 6% per annum on the due amount of the bill w.e.f. 09.07.2018 till its actual payment. The due amount along with interest shall be paid by the said respondents to the petitioner within one month from the date of receipt/production of a copy of this order.
18. The writ petition is accordingly allowed.
(Rajesh Shankar, J.) Ritesh/AFR