Jharkhand High Court
Ms Agros Impex India Private Limited vs Chief Secretory on 31 March, 2016
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 4901 of 2012
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M/s Agros Impex India Private Limited --- --- ---- Petitioner
Versus
1. The State of Jharkhand through Chief Secretary,Govt. of Jharkhand
2. The Secretary-cum-Transport Commissioner, Govt. of Jharkhand
3. The Joint Transport Commissioner, Govt of Jharkhand, Transport Department
4. M/s Rosemarta Technologies Ltd through its Managing Director --- Respondents
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CORAM: The Hon'ble Mr. Justice Aparesh Kumar Singh
For the Petitioner: M/s. Jitendra Singh, Sr. Advocate, Pandey Neeraj Rai,
Suraj Samdarshi, Rohit Ranjan Sinha, Advocates
For the Resp-State: Mr. Rajesh Shankar, GA
For the Resp No. 4: Mr. Vaibhav Kumar, Advocate
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Reserved on: 28/01/2016 Pronounced on: 31/03/2016
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30 / 31.03.2016Petitioner entered into an agreement for execution of work of supply and affixation of High ('HSRP' in short) on 30.04.2012 with the respondent Transport Department. The agreement has been terminated by the impugned order dated 13.08.2012 (Annexure-2) issued under the signature of Secretary - cum - Commissioner, Transport Department (Respondent No. 2). Petitioner has also been debarred from participating in tender process for a period of five years by order dated 04.09.2012 bearing letter no. 923 (Annexure-18) issued by the same Respondent No. 2 on the ground that it had failed to implement the scheme, as per the terms and conditions of the agreement resulting in its termination. In the meantime, allotment of work for supply and affixation of HSRP has been awarded to the Respondent No. 4 - M/s Rosamarta Technologies Limited by a letter of intent issued on 08.01.2013 (Annexure-34) by the respondent Department.
2. Petitioner has sought quashing of the order of termination dated 13.08.2012 and consequent restoration of his agreement dated 30.04.2012 (Annexure-2). He has also sought quashing of allotment of work to the Respondent No. 4 vide letter dated 08.01.2013 (Annexure-34) and for restraining the respondent from creating any third party right.
3. It has assailed the order of debarment dated 04.09.2012 (Annexure-18) as well. Petitioner has sought enforcement of reciprocal agreement as per agreement 2 dated 30.04.2012. Petitioner was allowed to challenge the order of debarment issued during pendency of the writ petition where originally, the order of termination was under challenge. Relief (s) enumerated hereinabove have been sought to be pressed on the part of the petitioner in substance, though prayers made in the writ petition are fragmented into several sub prayers essentially, raising the aforesaid core grievances. The order of debarment was stayed by interim order dated 25.09.2012.
4. Respondent State also got an opportunity to file counter affidavit to the amended writ petition. Respondent No. 4 appeared on notice, but according to the learned counsel appearing on his behalf, has been instructed not to contest.
5. Pleadings of the writ petition have gone up to become more than 800 pages on account of tenacious contest on the issues involved herein between the parties and several developments have been sought to be incorporated during pendency of the writ application. Copious argument has also been advanced on the part of the writ petitioner and the State through erudite arguments by their learned counsels.
6. In the factual matrix of the case being discussed hereinafter, challenge to the order of debarment and termination of agreement are being dealt with in the same order considering the specific grounds and facts canvassed by the rival parties on the aforesaid issues which is quite distinct from each other.
7. In order to arrive at a proper consideration of the issue involved, necessary relevant factual matrix of the case shorn off unnecessary details, is also being delineated hereinafter.
Following the mandate of Motor Vehicles Act, 1988, Central Motor Vehicle Rules, 1989 and Motor Vehicles (New High Security Registration Plates) Order 2001, State of Jharkhand also initiated the process for inviting tender through NIT dated 26.11.2011 for the purposes of supply and affixation of HSRP in the State of Jharkhand. Petitioner turned out to be the successful bidder after technical and financial evaluation and received letter of intent dated 12.03.2012 (Annexure-1) for 3 implementation of HSRP Project in Jharkhand. A formal agreement was entered into on 30.04.2012 between the Government of Jharkhkand and the petitioner company (Annexure-2). Salient features of the agreement containing the nature and scope of work as contained in Clause-3, 5,8, 12, 15, 16, 23, 24, 25, 29, 30 and 37 are being briefly enumerated hereunder:
The scope of work includes, but not limited to establishing and creating complete infrastructure to manufacture and provide / fix High Security Registration Plate to the vehicles in the State of Jharkhand in conformity with the technical parameters contemplated in Central Motor Vehicles Rules, 1989 with specific emphasis on Rule 50 and 51 as defined in tender bid document. The work was to be carried out in accordance with the specification detailed in the tender bid document including section-V thereof titled "Size and Technical Specifications of the High Security Registration Plates". Clause-5 specify the terms and conditions not spelt out in the agreement, but specified in the tender bid document bearing no. 447 dated 26.09.2012 or Letter of Intent bearing no. 242 dated 12.03.2012 issued by the respondent department i.e first party shall also apply mutatis Mutandis to this agreement and shall be fully binding. The agreement shall be valid for the period of 10 years and 03 months from the date of the agreement vide Clause-7. The second party / petitioner will have to manufacture the Registration Plates as per specifications and carry out the finishing process of each HSRP according to individual numbers and alphabets issued by the Registering Authority. It shall set up individual embossing and affixing station in or in proximity of the Registering Authority, as per the list provided in Annexure-III to ensure proper and easy availability of HSRP. The second party shall affix the HSRP to the vehicles against authorization document from the Registering Authority at the rates specified in the Letter of Intent.
The second party / petitioner shall create infrastructure facilities in the places specified in the tender document for embossing, supply and affixing of HSRP and 4 make it operational within thirty days from signing of the agreement at all locations of the Registering Authorities in the State of Jharkhand as per Annexure-III of the Bid Document. It shall also provide details of the set up and facility of infrastructure to the first party. Time limit for affixing of HSRP shall be only four working days from the date of issue of authorization in this regard by the Registering Authority (DTOs) in prescribed format on payment of prescribed fee by the applicant. On existing registered vehicle also, HSRP will be individually embossed and affixed within four working days upon receipt of the authorization / order from the Registering Authority. The old numbers / Registration Plates shall be destroyed by the second party. The second party was required to set up a Management Information System (MIS) for providing secondary cross verification process and documentation of key related field such as Chassis, Engine number and Registration number, Laser ID Number and to help in maintaining a proper record of each HSRP issued. It shall be responsible for sending a daily and monthly MIS report through electronic mail, as per format attached in Annexure-IV & V. The second party shall also be responsible for designing an interface with the software developed by National Informatics Centre (NIC) so that information is immediately available on the on-line registration of vehicles. It shall also develop a web portal to enable the vehicle owners to track their application, as per clause-15 of the agreement. The second party i.e. the petitioner was required to maintain confidentiality of the process including the security features of HSRP, as per Clause-16. Performance of the contract shall be made by the second party in accordance with the time schedule as per the Bid document and as further specified by the Government of Jharkhand vide Clause-23 thereof. As per Clause-24, it was expected to ensure delivery of service to the satisfaction of customers and provide training to their authorized staff to be polite and courteous with the customers. Clause-25 provide consequence for delay by the second party in performance of its 5 contractual obligation, which would render the second party liable to any or all of the sanction:
i. Forfeiture of security deposit ii. Imposition of Liquidated Damages, and / or iii. Termination of Contract for default.
Second party shall be liable for liquidated damage as specified in Clause 4.14 of the Tender Bid Document for violation of terms and conditions of the bid document and / or Letter of Intent. The Transport Commissioner or any other designated authority, notified by the State, shall be competent to determine the amount of liquidated damage. As per Clause-29, Government of Jharkhand, by a written notice of suspension, can suspend the contract if the second party fails to perform any of its obligations under the Contract including carrying out of the services, provided that such failure is of a nature beyond the scope of Clause 4.13, 4.14 and 4.15 of the Bid Document, but is also not covered by the scope of Clause 4.16.
Notice of suspension shall specify the nature of failure and request the second party to remedy such failure within a reasonable time. Clause-30 provide the first party a right to terminate the contract and to take all consequential action in accordance with Clause 4.15 of Tender Bid Document. Clause 4.15 of the Tender Bid Document were also incorporated after Clause 30 of the agreement which provide that the Government of Jharkhand will have a right to cancel the contract if the Contractor commits breach of any or all conditions of the contract, but is not limited to the items enumerated thereunder from Clause-a to Clause-i. Enumerated items specifically spelt out the nature of breach such as, if the schedule of implementation of the scheme is not being adhered to; the contractor stops work without authorization of Transport Commissioner; it becomes bankrupt or goes into liquidation; it fails to correct such defects / irregularity within a reasonable time despite notice; it fails to make supplies as per the requirement of Government of Jharkhand and as per the approved format; if it is found involved in any distribution of duplicate HSRP without authority from the Registering Authority and / or is leaking the security features. Further conditions specifically enumerated 6 thereunder spelt out breach in failing to submit valid 'conformity of Production Certificate' periodically, as per the guidelines of the Testing Agencies including detection of any fraud or misrepresentation, etc.; breach of contract by the contractor for any of the above reasons would invite right to terminate the contract by giving 15 days notice to the contractor and forfeiture of Performance Security with further right to supersede and take over the entire infrastructure and operation on as is where is basis at the risk and cost of the Contractor. Clause-37 of the agreement provide that in case of any conflict with any provision of this agreement and provision in the tender bid document, the provision as specified in the tender bid document shall prevail. Clause-38 relates to mechanism for resolution of any dispute or differences with the first and second party, it incorporate Clause-4.17 of the Tender Bid Document which provide that if the parties fail to resolve the dispute amicably, then matters shall be referred to arbitration as per the provisions contained in Clause 4.17 of the Tender Bid Document. Mechanism provided thereunder stipulate that if disagreement arising in connection with the contract could not be resolved amicably by direct informal negotiations, either party may refer the dispute to formal mechanism in terms of Clause 4.17.3 and it would be finally settled by binding Arbitration under the Arbitration and Conciliation Act, 1996. The Arbitration shall be by a panel of three Arbitrators, one to be appointed by each party and third to be appointed by the two Arbitrators appointed by the parties. Provisions of 4.17.4, 4.17.5 and 4.17.6 provide for sitting of Arbitration and rules which shall apply to arbitration proceedings, etc.
8. Petitioner company through the averment in the writ petition have sought to impress that several communication were exchanged between March 2012 to June 2012 between the parties on the issues raised by it seeking support and cooperation of the State Government in order to successfully implement the project. It refers to letters issued for software support through NIC, matters relating to deployment of its employees, its reply to the letter of Joint Commissioner regarding manufacture, 7 recruitment, plants & machineries, training and integration of NIC Vahan Software, HSRP Management Software, etc. It has further tried to show constraints faced by it in installation of Vahan Software and letter dated 27.05.2012 followed by meeting with the Secretary-cum-Transport Commissioner with the Managing Director of the company on the issue relating to implementation of all the steps. Petitioner has alleged deliberate non-cooperation on the part of the officers of the respondent Transport Department in the implementation of HSRP Scheme.
9. As would appear, the department chose to issue a show-cause on 09.06.2012 upon the Managing Director of the Company stating that it was required to ensure necessary infrastructure for embossing, supply and affixing of HSRP and to make it operational within 30 days (by 30.05.2012) from the date of signing of the agreement at all locations of Registering Authorities in the State of Jharkhand as per Annexure-III of the Agreement. However, as per information obtained from the District Transport Officer, a. Out of 22 districts, it had set up embossing station in only one district of Ranchi. b. No affixing station has been set up and made operational in 21 districts and no HSRP has been affixed in these districts.
c. Not even a single Data Entry Operator is in place in many of the districts. d. In those districts, no Data Entry Operator has joined, no affixing station has been set up and there is no manpower deployed by the company to affix HSRP. It indicated extremely slow and negligible progress of work to implement the scheme. Petitioner was called to respond by 18.06.2012, failing which action would be taken to cancel the agreement and forfeit the security deposit.
10. Petitioner approached this Court against the issuance of the show-cause notice dated 09.06.2012 in WPC No. 3233/2012. Learned Single Judge vide order dated 19.06.2012 however, did not find any ground for interfering with the notice at that stage. The writ petition was disposed of with a direction to the respondents to pass an appropriate order after considering the petitioner's reply, if already filed 8 (Annexure-7). Petitioner submitted its reply through letter dated 27.06.2012 (Annexure-8) inter-alia stating that the allegations contained therein are misconceived and baseless. According to it, as per discussions made with the respondent authorities and specifically agreed upon for better control of inventory and maximization of plant and machinery, it was required to set up two embossing station at Ranchi and Dhanbad which will each cater to the requirement of embossing in 11 districts. It stated that on the question of setting up of affixing station in 21 districts, petitioner indicated that it had periodically been requesting to all 21 DTOs through various letters to hand over space. It furnished a chart of about 22 districts stating that the area allotted was much less than 1000 sq.ft required to set up affixation station. It stated that it had posted Data Entry Operators at all the 22 DTOs. According to the petitioner, all are fully functional with DEOs and fitters with tools and tackles. Affixation of HSRP was dependent on receipt of authenticated data, authorization letters from designated Nodal Officers and deposit of money by the vehicle owners, etc. The process of embossing would start, once the above are completed. The chart was furnished in respect of authorization slips received in each district and affixatiion done as also rate for affixation. Petitioner on its part is said to have confirmed deployment of adequate manpower for affixation at all the DTO offices and refuted the contention of the State Government authorities as misconceived and baseless.
11. However, respondent department chose to terminate the contract through letter at Annexure-12 dated 13.08.2012, impugned herein, on the plea that it had violated the terms and conditions of the agreement and failed to set up individual embossing and affixation station as per Annexure-III requiring to set up individual embossing and affixing station in or in proximity of the Registering Authorities in each of the districts. Its action in setting up only two embossing station was not only violative of the terms and conditions, but it also led to undue delay in supply and affixing of HSRP almost throughout the State. The termination order through a 9 table incorporated therein, tried to show that space have been made available by most of the District Transport Officer before 30.05.2012 for setting up of embossing and affixing station. However, the company has failed to set up station in 21 districts in the State. It also rejected the reply of the petitioner that Data Entry Operators have been posted in all 22 DTO Offices in the State. It was rather commented that untrained and unauthorized personnel have been deputed without proper authorization to receive the requisite data from the DTO offices. The action of the petitioner company therefore was found to have clearly violated the terms and conditions of the agreement under which HSRP was to be affixed within four working days from the receipt of authorization. Inputs of various DTOs indicated that personnel were issuing manual fee receipts to vehicle owners for HSRP which lead to unnecessary delay in disposal of cases. Clause-15 of the Agreement was referred to show that the company was under an obligation to set up a Management Information System for providing secondary cross verification process and documentation of key related field such as Chasis Number, Engine Number and Registration Number, Laser ID No. which would help in maintaining a proper record of each HSRP issued. It alleges that despite getting the registration data generated through Vahan Software on day to day basis by all the Registering Authorities in the State, Company had failed to provide necessary information of HSRP to the DTOs, as per terms of the agreement. Letters relied upon by the petitioner do indicate that progress of HSRP project were held to be totally incorrect with misleading data and contradicting each other. The order of termination also refers to the complaints being received from various DTOs regarding inferior quality of number plates provided by the Company to the vehicle owners. After discussion of various aspect relating to execution of project, it concludes by observing that company had indulged in gross violation of several clauses of terms of agreement dated 30.04.2012 which was unacceptable. Accordingly, invoking clause 30 of the agreement, contract was terminated and 10 bank guarantee of Rs. 2.00 crores, submitted by the Company to the department as performance security deposit, was invoked. The order of termination was followed by an office order no. 923 dated 14.09.2012 (Annexure-18) debarring the petitioner from participating in any tender process for a period of five years as it had failed to implement the High Security Registration Plate Scheme, as per terms and conditions of the agreement, which also resulted in its termination vide letter dated 13.08.2012. The same is also impugned herein.
11. Learned Senior Counsel for the petitioner has based his argument attacking the order of debarment on the ground of violation of principles of natural justice as according to it, no opportunity of show-cause was ever given to it. The show-cause notice dated 09.06.2012 asked the petitioner to offer its reply as to why agreement be not terminated, enumerating a number of instances such as, failure on the part of the petitioner to make the project operational by 30.05.2012 i.e. within 30 days from the date of signing of the agreement at any locations of the Registering Authority in the State of Jharkhand, as per Annexure-III of the agreement. Petitioner submitted its reply vide Annexure-8 dated 27.06.2012 against the proposed impugned action of termination of agreement, but was completely surprised by an order of debarment passed without any opportunity to defend itself against the proposed debarment. Principle of law laid down in the case of M/s Erusian Equipment & Chemicals Ltd. vs. State of West Bengal and another (1975) 1 SCC 70 para-12, 15, 17 and 20, Joseph Vilangandan vs. The Executive Engineer, (PWD), Ernakulam and others (1978) 3 SCC 36, para-16, 17,18, Jagdish Mandal vs. State of Orissa and others and analogous case (2007) 14 SCC 517 para-22, B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. And others (2006) 11 SCC 548, para-39 to 41 and 66 and in the latest judgment rendered by the Apex Court in the case of Gorkha Security Services Vs. Government (NCT of Delhi) & others (2014) 9 SCC 105, Para-21 and 27 have been relied upon to assail the order of debarment. It has been urged that the 11 debarment is equivalent to blacklisting and affects fundamental right to carry on business. Contents of the show-cause require not only an opportunity to respond to the main allegations, but also against the proportionality of punishment sought to be imposed considering the gravity of the charges and mitigating circumstances. Since none of these requirements have been met before effecting a serious adverse civil consequence of debarment in participating in tender process for a period of five years, the order of debarment is subject to judicial review, as it has been wholly arbitrary and in violation of principles of natural justice.
12. Argument in opposition has been advanced on the instant challenge by the counsel for the State, submitting that non-issuance of the show-cause did not prejudice the case of the petitioner. Petitioner got full knowledge of his defaulting action or omission by the show-cause notice issued before termination of his agreement to which, he has also responded through detailed reply. The order of debarment is nothing but consequence which flows out of serious default on the part of the petitioner in execution of the project and making it operational within the time line stipulated under the agreement. Learned counsel for the State has relied upon judgments rendered in the case of Grosons Pharmaceuticals (P) Ltd. And another vs. State of U.P. And others (2001) 8 SCC 604, para-2 thereof to support his submission that the petitioner has been rightly debarred from participating in any tender process for a period of five years as it had failed to implement the High Security Registration Plate Scheme, as per terms and conditions of the agreement. It also resulted in termination of the contract vide letter dated 13.08.2012.
13. The factual narration of the event clearly reveals that the order of debarment has been issued without any notice or show-cause. In essence, it is in complete violation of principles of natural justice. In this regard, on a survey of decision cited by the parties, it is evident that the impugned action of debarment has completely failed to conform to the requirement of a show-cause notice before any 12 such harsh action of debarment from participating in tender process for a period of five years, could have been taken. It would be proper to reproduce the opinion of the Hon'ble Supreme Court in the case of Gorkha Security Services (Supra), as contained in paragraphs-21 and 33 of the report, which reads as under:
"21. The central issue, however, pertains to the requirement of stating the action which is proposed to be taken. The fundamental purpose behind the serving of show-cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement, according to us, is the nature of action which is proposed to be taken for such a breach. That should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if the defaults/breaches complained of are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is harshest possible action.
33. When we apply the ratio of the aforesaid judgment to the facts of the present case, it becomes difficult to accept the argument of the learned Additional Solicitor General. In the first instance, we may point out that no such case was set up by the respondents that by omitting to state the proposed action of blacklisting the appellant in the show-cause notice, has not caused any prejudice to the appellant. Moreover, had the action of blacklisting being specifically proposed in the show-cause notice, the appellant could have mentioned as to why such extreme penalty is not justified. It could have come out with extenuating circumstances defending such an action even if the defaults were there and the Department was not satisfied with the explanation qua the defaults. It could have even pleaded with the Department not to blacklist the appellant or do it for a lesser period in case the Department still wanted to blacklist the appellant. Therefore, it is not at all acceptable that non- mentioning of proposed blacklisting in the show-cause notice has not caused any prejudice to the appellant. This apart, the extreme nature of such a harsh penalty like blacklisting with severe consequences, would itself amount to causing prejudice to the appellant."
14. In the absence of a show-cause notice, respondents have therefore failed to provide the petitioner any opportunity to understand the precise imputation of alleged breach or default, to which he would have had an opportunity to rebut. On failure to do so, petitioner also never got an opportunity to explain against the proposed nature of action to be taken i.e. blacklisting or debarment which entails 13 serious adverse civil consequence affecting his fundamental right to carry on business.
15. The contention of the respondents that no prejudice has been caused to the petitioner, cannot be accepted given the extreme nature of penalty entailing serious consequence of debarment imposed upon him. The impugned order of debarment contained at Annexure-18, cannot therefore survive in the eye of law and it is quashed.
16. Having recorded the findings in relation to the order of debarment, I proceed to dwell upon the second part of challenge relating to the termination of the agreement. Salient features of the agreement, as canvassed by the parties also, have been delineated in the foregoing paragraphs of this judgment. It is proper to deal with the rival contention of the parties.
17. Learner Senior Counsel for the petitioner has, in his erudite style, assailed the impugned action by referring to the grounds as contained in the show-cause notice of termination and the petitioner's categorical reply thereto. He has endeavoured to show that the allegation relating to non-setting up of embossing and affixation stations in 22 districts in the State except Ranchi district where embossing station was set up, is explained through several correspondences undertaken between the parties. Petitioner has ventured to submit that even prior to issuance of Letter of Intent, there was an understanding with the respondent authorities of setting up of two zonal headquarters at Ranchi and Dhanbad from where district falling under two zones, would be catered to. Various letters post agreement dated 30.04.2012, 08.05.2012, 17.05.2012, 19.05.2012, 12.05.2012 up to 02.06.2012 have been referred to. Petitioner has asserted that the minimum requirement of 2000 sq. ft of space for setting up of embossing station was not provided and another space which was provided in some of the districts,was not only belated, but was also inadequate. Petitioner has also submitted that various letters referred to in the impugned orders pertains to the last week of July 2012, 14 much after issuance of the show-cause notice on 09.06.2012 without giving petitioner a chance to respond thereto. The impugned order has relied upon violation of clause-12, 13, 16 and 24, though show-cause notice alleged violation of clause-8 of the agreement only. It therefore travels beyond show-cause notice and finding based thereon are on reasons different from two charges to which the petitioner did not get any opportunity to reply. In support thereof, petitioner has referred to the judgments rendered by the Apex Court in the case of S.L. Kapoor vs. Jagmohan and others (2014) 9 SCC 105, Tarlochan Dev Sharma vs. State of Punjab and others (2001) 6 SCC 260 Commissioner of Central Excise, Bhubaneshwar-I vs. Champdany Industries Limited (2009) 9 SCC 466, (2003) 2 MPLJ 158, Commissioner of Income Tax, Trivandrum vs. Tra Vancore Titanium Products Ltd (2001) 1 SCC 590, Dhakeswari Cotton Mills Ltd. vs. Commissioner of Income Tax, West Bengal AIR 1955 SC 65. Proposition of law derived from the judgments referred to hereinabove, lay down that any decision entailing civil consequences is required to conform to the principles of natural justice. The facts constituting the gravamen of the charges has to be contained in the show-cause notice, otherwise it cannot be relied upon to make a basis for passing the impugned order. It is contended that the respondent also do not deny these facts in the pleadings or submissions relating to letters of various DTOs issued much after issuance of the show-cause notice. In relation to the charge nos. 2, 3 and 4 of the show-cause notice, petitioner has, on its part, asserted that these are based on the materials i.e. letters of various District Transport Officers issued in the last week of July 2012, which were once again never communicated to it. Petitioner has referred to the content of its reply to submit that affixation of HSRP were dependent upon the receipt of authenticated data, authorization letters from the designated Nodal Officers and deposit of money by the vehicle owners. The process of embossing and personalization of HSRPs starts once the above are completed. According to the petitioner, chart furnished with the show-cause reply 15 itself shows issuance of allotment letters by some of the DTOs between 29.05.2012 to 30.05.2012. Some of the DTOs had given allotment letters, but possession was yet to be given. Contention advanced is to the effect that the respondents were violating their reciprocal promises to provide adequate space for setting up embossing stations in or near the district Registration Office. Statement made at paragraph-9 of the counter affidavit to the assertion made on behalf of the petitioner on these facts, have also been referred to. It is submitted that the respondent department has accepted its responsibility to provide space to the Petitioner Company to ensure setting up of necessary infrastructure for embossing, supply and affixation of HSRP, while the company in turn, had to pay for using such space on monthly basis.
18. According to the petitioner, specific reply furnished by petitioner in response to the show-cause notice on the allotment and possession of space in the various districts, have not been denied in the impugned termination order. Reference is also made to allotment of space in some of the districts by letters issued on 15.06.2012, 16.06.2012 and 06.06.2012 respectively in East Singhbhum, Giridih and Dumka. Reference is also made to the letters enclosed to the respondent's counter affidavit at Annexure-E series that space provided was not inadequate, such as in Palamau, Garhwa, etc., but also disputing the data furnished by the petitioner on wholly unsustainable facts. Learned Senior Counsel for the petitioner, during course of lengthy argument, have taken pains to take this Court to the various letters, documents, provisions of agreement, bid document, show- cause notice and their reply to it to drive home the point that the findings of the Transport Commissioner in terminating the contract on the charge that the petitioner had set up only two embossing stations in violation of clause-8 of the agreement is clearly arbitrary and perverse; it seeks to impose strictest of penalty conceived under the agreement i.e. termination of the agreement itself. He has also tried to show the bonafide and willingness of the petitioner to abide by any 16 direction of the respondent by citing example of embossing station made operational at Jamshedpur after adequate space was made available even after show-cause notice. Petitioner has also questioned the grounds taken by the Transport Commissioner that there was no requirement under the agreement relating to integration with the HSRP Management Software of the petitioner. It is reiterated in the letter dated 28.05.2012 on the subject of affixing High Security Registration Plates by the scheduled date 30.05.2012. It merely directs affixation of HSRP with effect from 01.06.2012 and does not even on the said date, require the petitioner to set up embossing station in all the 22 districts of the State.
19. Learned Senior Counsel for the petitioner submits that the issues mushrooming up in the matters of execution of such a large project over a period of 10 years and 03 months at its very nascent stage, were required to be dealt through a detailed and well structured mechanism provided in the agreement itself. Respondents have however instead of resorting to resolve any such issues, straightaway terminated the agreement which is wholly disproportionate to any of the alleged charge. Reference has also been made to the various provisions of the agreement which provides forfeitures of security deposit; imposing of liquidated damages; termination of the contract in default on failure of performance of the contractual obligation. However, respondents have not resorted to mechanism laid down in clause-4.17 for resolving the dispute amicably by direct or informal negotiation. It was only after failure of such direct and informal negotiation within a period of 30 days, that dispute could be referred for resolution by the formal mechanism specified in clause-4.17.3 through Arbitrator. Provisions of Clause- 4.17.6, 4.20 and 4.20.1 relate to termination of the contract after decision arrived at in any such arbitration proceeding within 30 days of the decision arrived at between such arbitration and other provisions of suspension of contract also, have also been clearly laid down. Learned counsel for the petitioner has submitted that even in contractual matters, a writ petition is maintainable. The State is bound to 17 act in a reasonable and non-arbitrary manner even in such matters. Therefore, this Court, in exercise of writ jurisdiction under Article 226 of the Constitution of India, is well within its power to quash the impugned order of termination as it is wholly arbitrary, unreasonable and violative of principles of natural justice. Learned counsel for the petitioner has placed reliance upon the following judgments:
1. (2004) 3 SCC 553 (ABL International Ltd. And another vs. Export Credit Guarantee Corporation of India Ltd and others)
2. (2008) 3 SCC 440 (Food Corporation of India and Another vs. SEIL Ltd.
And others
3. (2008) 12 SCC 500 (Kisan Sahkari Chini Mills Limited & others vs. Vardan Linkers and others)
4. (2009) 1 SCC 150 (Karnataka State Forest Industries Corporation vs. Indian Rocks)
5. (2011) 5 SCC 697 (Union of India and others vs. Tantia Construction Private Limited
6. (2015) 4 SCC 136 (Kailash Nath Associates vs. Delhi Development Authority & another
7. AIR 1954 Bombay 232 (All India Groundnut Syndicate Ltd. vs. Commr.
Of Income Tax, Bombay City)
8. (2015) 9 SCC 433 (State of Kerala and others vs. M.K. Jose)
9. (2003) 2 SCC 107 (Harbanslal Sahnia and another vs. Indian Oil Corpn.
Ltd and others)
20. Submissions in response advanced by the learned Government Advocate is to the effect that the entire substratum of the facts narrated by the petitioner, prove failure to comply with the binding reciprocal promises on the part of the petitioner in the execution of the project, as per the time schedule. Learned counsel for the respondent State has also placed reliance on the contents of the order of termination to submit that violation made on the part of the petitioner goes to the core issue of the agreement itself and are not peripheral in nature as setting up of embossing and affixation stations in each of the 22 districts was a binding requirement to be completed by the time period of 30 days from the date of entering into the agreement i.e. by 30.05.2012 for the project to kick start and 18 commence. Letters at Annexure-B series to the counter affidavit of the State goes to show petitioner's recalcitrant approach in not setting up the embossing and affixation stations within time while raising uncalled for issued relating to supply of Vahan Software, Jharnet excess, NIC Software Interface, etc. Letters written to all the District Transport Officers at Annexure-G series such as letter no. 584 dated 28.05.2012, 601 dated 30.05.2012, 609 dated 01.06.2012, etc have been placed to support the contention that the department had, on its part, provided all support, but the petitioner had raised unnecessary question relating to NIC Interface contrary to the provisions of Clause-15 of the agreement. Letter dated 08.08.2012 (Annexure-I) have also been placed in relation to the inspection report of HSRP to submit that the petitioner's quality of HSRP were also sub-standard. While placing reliance upon several letters enclosed at Annexure-B series received from District Transport Officer, Dumka and Koderma and such other letters from DTO, Bokaro, Pakur, Hazaribagh, etc, learned Government Advocate submits that they only prove the point that the charges levelled against the petitioner of non-setting up of infrastructure in various district despite allotment of adequate space to them, are correct. It is submitted that the conduct of the petitioner at the very inception of the project gave the impression that it was not at all seriously interested in the execution of the project as per the time schedule. All these facts have been considered in a proper manner by a well reasoned order with full application of mind by the respondent Secretary - cum - Transport Commissioner while issuing the impugned order of termination of the agreement with the petitioner. Learned counsel for the respondent State has also countenanced the argument of the petitioner that in terms of the penalty clause under the agreement, termination could not have been resorted to as a first measure. Reference is made to the provisions of clause-25 to 31 of the agreement where contractor on failure to execute the contract, would be liable to any or all of the consequences. It is submitted that Government have a right to cancel the contract if the contractor 19 commits breach of any of the conditions of the contract. Clause-25 provides consequences for delay by the second party in performance of its contractual obligation which would render the second party liable to any or all of the sanction such as, i. forfeiture of security deposit, ii. imposition of Liquidated Damages, and / or, iii. Termination of Contract for default. Counsel for the respondent at the end submitted that the nature of breach i.e. non-setting up of embossing and affixing stations as per schedule, failure to start delivery of services except at few places, poor quality of HSRP supply as per report received from the district Transport Officer, misleading reports that space have not been provided, unnecessary controversy relating to Vahan Software Interface with the NIC, all go to show a deliberate conduct of the petitioner for the delay and failure in execution of such an important project of the state to be carried out in terms of the provisions of the Motor Vehicles Act and relevant rules framed thereunder. Learned counsel for the State has endeavoured to place reliance upon the judgment rendered by the Apex Court on the point that judicial review in contractual matters is permissible to a very limited extent. Present case not only involves disputed questions of fact, but also construction of the terms and conditions of the agreement entered into between the parties. Petitioner, if at all, has a remedy elsewhere if aggrieved by the impugned order of termination, but not in judicial review proceeding. Reliance has been placed upon the judgments rendered by the Apex Court in the case of State of Kerala & Ors. Versus M.K. Jose 2015 (3) JLJR 495( SC), para- 13,14,15,16,17, Rishi Kiran Logistics Pvt. Ltd. vs. Board of Trustees of Kandla Port Trust & ors. [AIR 2014 Supreme Court 3358], para-20 and 29 thereof, A.S. Motors Private Limited vs. Union of India & others [(2013) 10 SCC 114], para-8, 15 to 17, 20, 22 and 23 thereof, Rajasthan Housing Board & another vs. G.S. Investments and another [(2007) 1 SCC 477[, para-10 and 11, Noble Resources Ltd. vs. State of Orissa and another [(2006) 10 SCC 236], para-15, 30 and 31 thereof, National Highways Authority of India vs. Ganga 20 Enterprises and another [(2003) 7 SCC 410] para-6, State of Bihar and others vs. Jain Plastics and Chemicals Ltd [(2002) 1 SCC 216], para- 8 and 7. Reliance has also been placed upon the judgment rendered by the Apex Court in the case of M/s Radhakrishna Agarwal and others vs. State of Bihar and others [AIR 1977 Supreme Court 1496], Michigan Rubber (India) Limited vs. State of Karnataka and others (2012) 8 SCC 216 and Raunaq International Ltd. vs. I.V.R. Construction Ltd and others (1999) 1 SCC 492. To summarize, learned counsel for the State justified the impugned action of termination of the agreement with the petitioner and submitted that the writ petition deserves dismissal.
21. The erudite submission of the learned counsel for the parties have engrossed the attention of the Court to the wide canvass of facts in issue involved and the overarching proposition of law laid down by the Apex Court within the contours of which under writ jurisdiction, this Court can delve into without uncalled for transgression in unchartered territories involving determination on questions of facts disputed. On a careful study of the pronouncement rendered by the Apex Court profusely relied upon by the counsel for both the parties, referred to herein- above, the legal position which emerges as to the maintainability of the writ petition in contractual matters, are being briefly summed up:
(a) Merely because some disputed questions of fact arises for consideration, the same cannot be a ground to refuse to entertain the writ petition in all cases as a matter of rule. However, while entertaining the objection to the maintainability of the writ petition under Article 226 of the Constitution of India, the Court is required to bear in mind that the power to issue prerogative writs under Article 226 of the Constitution of India, is plenary in nature and is not limited by any other provisions of the Constitution. High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. Court has imposed upon itself certain restrictions in exercise of its powers and this plenary right of the 21 High Court to issue prerogative writ, will not normally be exercised to the exclusion of other available remedies, unless such action of the State or its instrumentality is arbitrary and unreasonable, so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.
22. Having closely scrutinized the legal position rendered in this regard upon consideration of the judgments relied upon by the counsel for the petitioner as also on behalf of the State, this Court does not intend to burden the judgement on the aforesaid settled proposition of law which has emerged out of the judgments rendered by the Apex Court and as culled out herein-above.
23. In the facts of the present case, the adjudication on the issue whether the impugned administrative action of cancellation of the agreement was arbitrary or unreasonable, is dependent on questions of facts over which parties are in serious dispute. For example, while the petitioner asserts that correspondences undertaken before execution of the agreement, itself lead to an impression that it was required to set up embossing stations at only 02 districts of Ranchi and Dhanbad. Respondents are very categorical in denial by referring to the terms and conditions of the agreement itself that the petitioner was required to set up embossing and affixation stations at all the 22 districts. Whether the contention of the petitioner is true on facts, is again dependent upon construction of terms and conditions of the agreement itself in relation to the correspondences relied upon by them. At the same time, claims and counter claims made by the petitioner and the respondents on the question of allotment of space and adequacy of space for setting up infrastructure at 22 districts based upon documents from both the sides, leads to the impression that on the one hand, petitioner has alleged failure on the part of the respondent department to provide allotment of space or adequate space at most of the stations, while respondents allege to the contrary. Whether petitioner was required to set up only two embossing stations at Ranchi and Dhanbad for catering 22 to two zones of 22 districts of the State, leaves this Court with little doubt that the questions of fact are seriously in dispute between the parties. Whether the petitioner had taken all measures to deploy its personnel in all districts where embossing and affixation of HSRP was to be done, is again in the realm of disputed questions of facts between the parties. Construction of terms and conditions of the agreement are again in the realm of the dispute between the parties.
24. Respondents on its part has sought to strengthen its case by relying upon letters furnished by the respective district Transport authorities in late July 2012 to substantiate the allegation that the petitioner has been failing in its duty to set up infrastructure in various districts to carry out affixation and supply of HSRP to ultimate consumers. The agreement clearly stipulates obligation on the second party i.e. the petitioner to create infrastructure facilities in the places specified in the tender document for embossing, supply and affixing of HSRP and to make it operational within 30 days from signing of the agreement at all locations of the registering authorities in the State of Jharkhand, as per Annexure-III of the bid document. Time limit for affixing of HSRP was only 04 working days from the date of issuance of authorization by the Registering Authority i.e. DTO in the prescribed format on payment of prescribed fee.
25. From the conspectus of the rival facts canvassed by the parties, it now boils down to a question of fact seriously contested as to whether delay in setting up of embossing and affixing stations within 30 days period was attributable to the petitioner. These questions of fact though sought to be agitated on the basis of affidavit between the parties, are surely in the realm of allegation and counter allegation to be determined on the basis of the evidence on the breach of reciprocal promise by either of the parties.
26. Judicial review of the administrative action of termination of the agreement by the respondent on such disputed questions of facts seriously in contest between 23 the parties, is neither safe, nor desirable. The position in law has been progressively laid down through a catena of decisions rendered by the Apex Court including that of ABL International Ltd. vs. Export Credit Guarantee Corpn. Of India Ltd [(2004) 3 SCC 553] and in the latest judgment rendered by the Apex Court in the case of M.K. Jose (Supra). There appears to be no iota of doubt that the present challenge to the impugned action cannot be confined purely to the realm of public law remedy on the available grounds of judicial review, as it involves determination of several disputed questions of fact which are dependent upon construction of the terms and conditions of the agreement between the parties. Such rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of the evidence which may be led by the parties in a properly instituted civil suit or in a arbitration proceeding, if permissible under the terms of the agreement itself, rather than by a Court exercising power to issue prerogative writs. The question raised herein do not pertain to certain violation of agreement as was in the case of ABL International Ltd (Supra) where facts was absolutely very clear from the documentary evidence. The principle of law, as laid down by the Apex Court and discussed on survey of several precedents on the point are dealt with in the recent judgment rendered by the Apex Court in the case of M.K. Jose (Supra). Para-13, 14, 16, 17, 18 and 20 are being reproduced hereunder:
13. A writ court should ordinarily not entertain a writ petition, if there is a breach of contract involving disputed questions of fact. The present case clearly indicates that the factual disputes are involved.
14. In State of Bihar v. Jain Plastics and Chemicals Ltd., a two-Judge Bench reiterating the exercise of power under Article 226 of the Constitution in respect of enforcement of contractual obligations has stated: (SCC p. 217, para 3) "3. ... It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to 24 issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226."
In the said case, it has been further observed: (SCC p. 218, para 7) "7. ... It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs."
16. Having referred to the aforesaid decisions, it is obligatory on our part to refer to two other authorities of this Court where it has been opined that under what circumstances a disputed question of fact can be gone into. In Gunwant Kaur v. Municipal Committee, Bhatinda, it has been held thus: (SCC p. 774, paras 14-16) "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.
15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.
16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in-reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit."
(emphasis supplied) 25
17. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., a two-Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur and Century Spg. and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council, has held thus: (ABL International case, SCC pp. 568-69 & 572, paras 19 & 27) "19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.
* * *
27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.
(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable."
While laying down the principle, the Court sounded a word of caution as under: (ABL International case, SCC p. 572, para 28) "28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks.) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."
18. It is appropriate to state here that in the said case, the Court granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. In that context, the Court opined: (ABL International Ltd. case, SCC p. 578, para 51) "51. ... The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum, therefore, without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very 26 well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy, it is noticed that existence of only two conditions has been made as a condition precedent for making the first respondent Corporation liable to pay for the insured risk, that is: (i) there should be a default on the part of the Kazak Corporation to pay for the goods received; and (ii) there should be a failure on the part of the Kazakhstan Government to fulfil their guarantee."
And it eventually held: (SCC pp. 578-79, para 51) "51. ... We have come to the conclusion that the amended Clause 6 of the agreement between the exporter and the importer on the face of it does not give room for a second or another construction than the one already accepted by us. We have also noted that reliance placed on sub-clause (d) of the proviso to the insurance contract by the Appellate Bench is also misplaced which is clear from the language of the said clause itself. Therefore, in our opinion, it does not require any external aid, much less any oral evidence to interpret the above clause. Merely because the first respondent wants to dispute this fact, in our opinion, it does not become a disputed fact. If such objection as to disputed questions or interpretations is raised in a writ petition, in our opinion, the courts can very well go into the same and decide that objection if facts permit the same as in this case."
20. We have referred to the aforesaid authorities to highlight under what circumstances in respect of contractual claim or challenge to violation of contract can be entertained by a writ court. It depends upon facts of each case. The issue that had arisen in ABL International was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review but, a pregnant one, in the case at hand, the High Court has appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent and quashed the order of termination of contract.
27. In the wake of the conclusion drawn herein-above, the contention of the petitioner that the impugned action was not proportionate and in terms of the structured mechanism entered into between the parties for resolution of the dispute, is not required to be gone into as again it would be dependent upon determination of questions of fact relating to the breach of terms and conditions of the agreement itself.
28. It would not be out of context to make mention here that this Court had, on an earlier date, in the midst of the proceedings, considered it desirable to request the Chief Secretary of the State of Jharkhand to undertake an exercise for coming 27 to a resolution, whether considering the nature of the project, as conceived under the agreement, and if it is fail safe and still worthy of execution, can it be worked out between the parties? Deliberation made at the level of the Chief Secretary of the State and brought on record through affidavit dated 10.12.2015 however show that the respondent have found it not desirable to get the work executed under the agreement considering the plethora of issues of fact and of breach of promises alleged between the parties. One need not comment on the issues of dispute as it is required to be adjudicated elsewhere by way of any statutory remedy available to the parties.
29. The entire discussions made herein-above, coupled with the reasons recorded therefore, persuade this Court to come to the conclusion that the challenge to the termination of the contract by the impugned order dated 13.08.2012, cannot be determined in exercise of writ jurisdiction of this Court. Petitioner however is at liberty to work out his remedy in accordance with law in an appropriate proceeding in a proper forum where such questions of fact can be agitated.
30. As has been held in the earlier part of the judgment, however the impugned order of debarment dated 04.09.2012 bearing letter no. 923 (Annexure-18) cannot be upheld in the eye of law as being completely in violation of the principles of natural justice having been effected without any opportunity of show-cause to the petitioner at all. It is accordingly quashed. The writ petition is allowed in part. However, discussions made herein-above, are only for the purposes of coming to the conclusion whether the challenge to the impugned order of termination of the agreement can be adjudicated under writ jurisdiction of this Court. It shall in no way, prejudice the case of either of the parties in any such proceeding relating to the challenge to the termination of the contract to be determined on independent consideration on all such questions of law and facts raised by them.
(Aparesh Kumar Singh, J) Ranjeet/