Calcutta High Court (Appellete Side)
Delta Limited & Anr vs The Director (Supplies) on 2 May, 2012
Author: Aniruddha Bose
Bench: Aniruddha Bose
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01 W.P. No.17395(W) of 2011
02.05.2012
(C.A.N. No. 3908 of 2012)
KC
Delta Limited & Anr.
Vs.
The Director (Supplies), Directorate
of Supplies & Disposals & Ors.
Mr. Partha Sarathi Sengupta,
Mr. Shyamal Sarkar,
Mr. Kumar Gupta,
Mr. Rajesh Gupta,
Mr. K. Zaueri,
Mr. Meghajit Mukherjee.
... for the petitioners.
Mr. Somnath Bose,
Mr. Kaushik Chanda.
... for the Director of Supplies.
Mr. D.K. Chatterjee.
... for the respondent no. 1.
Mr. Pratap Chatterjee, Senior Advocate.
Mr. S.S. Bose, Mr. P. Basu.
... for the respondent no. 2.
In Re.: C.A.N. No. 3908 of 2012 This application being C.A.N. No. 3908 of 2012 has been listed today under the heading "To Be Mentioned", but is being taken up for hearing at this stage only on consent of the learned Counsel appearing for the petitioners, Directorate of Supplies and Disposals, Government of India and the Punjab State Cooperative Supply and Marketing Federation Limited ("Markfed").
This application arises out of an ongoing dispute between the petitioners and the DGS&D as well as "Markfed", being the State Foodgrain Procuring Agency for the State of Punjab over supply of jute bags in bales. The supply orders were placed sometime in the month of June, 2011 but the dispute arose as it was contended by "Markfed" that the jute bags supplied did not meet the stipulated standard and hence 2 were defective. The writ petition out of which this application arises, in fact, is the second writ petition on the subject dispute. Earlier, a writ petition was filed by the petitioner being W.P. No. 13480(W) of 2011. This writ petition was disposed of on 14th September, 2011 by an Hon'ble Single Judge of this Court with the following direction:
"Having heard the learned Counsel appearing for the respective parties as also after considering the facts and circumstances of this case, I direct the parties to hold an inspection for identification of the defective jute bales under reference by the authorized representatives of the petitioners and the respondent No.2 in presence of the competent officers from the Director of Qualify Assurance, Ministry of Commerce, and Bureau of Indian Standard positively on and from September 22, 2011 at 12.00 noon for replacement of those defective jute bales and to take further steps in the matter in accordance with law.
Let it be further recorded that the aforesaid date of inspection is fixed by this Court on the basis of a joint proposal made by the parties.
Since no affidavit-in-opposition is filed by any of the respondents, the allegations made in this petition are not treated to have been admitted by them.
The personal appearance of the respondent No.1 is dispensed with.
The writ application is, thus, disposed of."
The dispute involved in the present writ petition primarily relates to release of money for supply of jute bales to the DGS&D. The allegation of the petitioners in this proceeding is that release of consideration amount has been withheld on the allegation of supply of defective jute bales.
Interim orders have been passed from time to time in this proceeding, primarily for the purpose of ensuring continuous supply of jute bales to the DGS&D for onward supply to the individual State 3 Procuring Agencies. The exercise of identifying the defective jute bales in pursuance of direction of this Court in W.P. No. 13480(W) of 2011, however, remains to be completed as there is some dispute as regards such identification and the methodology to be adopted for the same. In this application, however, the petitioners have sought for direction to permit the DGS&D themselves to identify the defective bags for the purpose of replacement. In substance, the petitioners have given up their claim for joint inspection so far as the pending dispute is concerned.
When this application was taken up, it was initially argued on behalf of the DGS&D that the entire order requires to be cancelled because the defective goods went beyond four percent of total supply, which according to DGS&D is the maximum permissible limit. In course of hearing today, however, it was not shown to the Court from which source this four percent permissible limit originated.
Learned Counsel appearing for "Markfed" has submitted that they are in need of the jute bags and though under compulsion, they are agreeable to accept the replacement as proposed by the petitioners.
In these circumstances, if I embark upon an enquiry on the question as to whether entire supply would be required to be rejected or not, that would not be to the benefit of "Markfed", at this stage the actual consumers of these jute bales. In course of hearing, learned Counsel appearing for the "Markfed" has submitted so.
Considering all these factors, I am of opinion that in the event the proposal of the petitioner for replacement of defective bags is allowed without granting any legal immunity to the petitioners from any statutory or contractual provisions at this stage for supply of defective jute bags, none of the parties to this proceeding would be prejudiced in 4 any way.
I accordingly appoint Mr. Akhilesh Kumar, Director Q.A., Kolkata of DGS&D as a Special Officer to supervise and take the ultimate responsibility of identifying the defective jute bags. He shall also be responsible for ensuring that the replacing jute bags meet the standard already stipulated. I am appointing the said officer of DGS&D as Special Officer on the suggestion of learned Counsel appearing for the DGS&D only and Mr. Sengupta has no objection to his appointment.
The learned Special Officer shall complete the exercise of identifying the defective jute bags within 13th May, 2012. The quantum of jute bags found defective shall be communicated to the petitioners by 15th May, 2012. The petitioners shall undertake the task of supplying replacement jute bags simultaneously with supply in pursuance of present orders subject to their maximum capacity which at present is in the region of 190 bales per day, as submitted by Mr. Sengupta. The entire replacement shall take place by 30th September, 2012 but shall be in a staggered manner so that there is no undue accumulation either on supply or distribution aspect of such jute bags.
The learned Special Officer shall intimate the petitioners the date, time and location of the respective godowns where such inspection shall take place. The petitioners shall depute a representative of their choice to be present at that location and on a day to day basis shall clear the dues of the persons deployed to remove the identified defective jute bags.
This arrangement is being directed to be undertaken as a purely workable measure without prejudice to the rights and contentions of the parties in the main writ petition.
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So far as the present application is concerned, the same shall stand disposed of in the above terms.
The learned Special Officer shall submit a report to this Court on 3rd October, 2012. The matter shall be listed on that date under the same heading.
As a special case, urgent photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be given to the parties on usual undertaking.
(Aniruddha Bose, J.) 6