Allahabad High Court
Hardik Trading Through Munendra Kumar ... vs State Of U.P. Thru Addl.Chief ... on 20 January, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 3.11.2022 Delivered on 20.1.2023 Court No. - 10 Case :- WRIT - C No. - 30 of 2022 Petitioner :- Hardik Trading Through Munendra Kumar Srivastava Respondent :- State Of U.P. Thru Addl.Chief Secy.Medical Health And Family Welfare And Ors. Counsel for Petitioner :- Akhilesh Kumar Kalra,Avinash Chandra,Narendra Shanker Shukla,Pooja Singh Counsel for Respondent :- C.S.C.,Neerav Chitravanshi,Puneet Chandra,Rani Singh,Samanvya Dhar Dwivedi Hon'ble Attau Rahman Masoodi,J.
Hon'ble Om Prakash Shukla,J.
(Per: Om Prakash Shukla, J.) This is a writ petition instituted by the sub-contractor or agent of opposite party no.3 praying for the relief as under :-
"(i) Issue an appropriate writ, order or direction in the nature of mandamus directing the respondents to make payment of the admitted amount to the petitioner for work done by it, which stand admitted by the respondent in their various correspondences, particularly in annexure nos. 22 & 23 of the writ petition.
(ii) Issue an appropriate writ, order or direction in the nature of mandamus directing the respondents to make payment of 18% interest over the said amount for a period of two and a half years."
Briefly stated facts of the case are that the central government for reducing the consumption of tobacco launched a scheme in the year 2019 to commemorate ''No Tobacco Day' on ''World No Tobacco Day' by taking appropriate steps as mentioned in D.O. letter dated 03.05.2019. The drive of no-tobacco movement under the scheme was to be implemented by each State/U.T. as per the guidance of the central government in the letter dated 03.05.2019 which for ready reference is reproduced below :
"Respected Madam/Sir, As you are aware that every year, 31st May is observed as World No Tobacco Day(WNTD), highlighting the health and other risks associated with tobacco use, and advocating for effective policies to reduce tobacco consumption. This year, the theme of 'World No Tobacco Day 2019 is "Tobacco and lung health". World No Tobacco Day 2019 will focus on the multiple ways the exposure to tobacco affects the health of people's lungs worldwide, which includes Lung cancer, chronic respiratory disease, maternal smoking or matenral exposure to second-hand smoke, onset and exacerbation of asthma, pneumonia and bronchitis, and frequent lower respiratory infection among young children and Tuberculosis. A soft copy of the poster developed for WNTD will also be sent to you in a short while for further dissemination.
2. In order to raise awareness on risks posed by tobacco smsoking and second hand smoke exposure, especially awareness on the particular dangers of tobacco smoking to lung helath and emerging evidence on the link between tobacco smoking and tuberculosis deaths, State/UT is requested to commemorate this year's World No Tobacco Day. An enforcemnt drive on tobacco control laws for at least 15 days conversion and declaration of all Government building as Tobacco Free Pemise/Building;awareness activities like road shows, street plays etc; training of health staff in NCD clinics and starting Tobacco Cesation Services in the NCD clinics;integration of Tobacco Cessation Services with NCD clinics, are some of the suggested actities that may be carried out during this time.
3. I solicit your intervention and support to project together to the World our strong commitement towards tobacco control.
With Warm regards"
The State of U.P. in the light of aforesaid letter held a meeting on 09.05.2019 under the aegis(Chairmanship) of the department of medical health & family welfare and it was decided that the work of information, communication and education of ''No Tobacco Day' be carried out by U.P. State Employees Welfare Corporation which shall provide brochures, posters, banners, pamphlets, community awareness and leaflet etc at the level of each district to the health department. The corporation i.e. opposite party no.3 for providing the printed material is stated to have been chosen in the meeting held on 09.05.2019 to which the petitioner was not a party. Looking to the paucity of time due to the ongoing election process, the corporation as understood to have a mechanism of receiving e-tenders was thus chosen by the State to provide printed material at the respective districts without following any tender process. It is in this background that the U.P. State Employees Corporation stepped into the implementation of the ''No Tobacco Day' project floated by the Central Government in the year 2019. Undisputedly the U.P. State Employee Corporation is an instrumentality of the State within the meaning of Article 12 of the Constitution of India and this position is well settled in the judgment reported in (2005)1 SCC 149(Virendra Kumar Srivastava versus U.P. Rajya Karamchari Kalyan Nigam and Another). The petitioner, however, is merely a firm registered with the U.P. State Employees Corporation under the terms and conditions set out in the office memorandum dated 8.10.2015. Likewise other firms are also registered with the Corporation on the like terms.
The petitioner was awarded work by the U.P. Rajya Karamchari Kalyan Nigam and there is no document on record to show that the State of U.P. or Mission Director, National Health Mission were in any manner privy to the contract awarded to the petitioner through work orders. It is also not the case of the petitioner that the opposite party no. 3 before issuance of the work orders to the petitioner had obtained prior approval of the State as regards his engagement to perform the contract. The averments made in the writ petition also do not show that the opposite party no. 3 before issuing the work order to the petitioner has adopted any tender process and undertaken any competitive exercise for the award of contract. The sole premise upon which the claim rests is a simple averment that the petitioner was issued work orders by opposite party no. 3 which on its implementation deserve to be honored by all other opposite parties including the State government and Director National Health Mission U.P. being a representative of the Central Government.
Parties were heard. The petitioner reiterated the contention that once the work orders were issued to him and the same have been carried out successfully, therefore, there is no reason as to why the payment payable may not be released by the opposite parties.
The opposite party no. 3 while disputing the liability has laid emphasis on the point that the very registration of the petitioner with the opposite party no. 3 is subject to the condition that unless the fund is released by the State, there is no question of releasing the payment as has been claimed by the petitioner. Clause 7 of the office memorandum dated 8.10.2015 stipulating conditions of registration has specifically been referred to and the same reads as under :-
"7. सामग्रियों की आपूर्ति किये जाने वाले विभाग से निगम को भुगतान प्राप्त होने के पश्चात संबंधित आपूर्तिकर्ता फर्म/ट्रेडर्स के पक्ष में नियमानुसार भुगतान किया जायेगा।"
This Court may note that the petitioner apart from its registration with the opposite party no. 3 has not placed any material or document according to which a legitimate right of contractual liability viz a viz the opposite party no. 3 was created. There is a difference between choosing a person selectively and through a legitimate process. The petitioner for the purpose of excecuting the work of opposite party no. 3 was not more than a selective choice that too without following any tender process, therefore, whether the work order issued to the petitioner constitutes a valid contract or not is by itself too doubtful. To classify the relationship between the petitioner and opposite party no. 3 as that of master and agent would not be legally wrong and this alone would not enable the petitioner to sue against the State even if the services have been utilized. The observation is made as there is no written document binding the petitioner and opposite party no. 3 for the performance of any project.
Interestingly, the opposite party no. 3 does not dispute the issuance of work order in favour of the petitioner but what is disputed is the release of payment. In order to defend the liability, the opposite party no. 3 has heavily relied upon clause-7 of the memorandum of registration dated 8.10.2015 reproduced above. The opposite party no. 3 for meeting the obligation of making payment to the petitioner has however not chosen to institute any proceeding whatsoever against the State/Center. The petitioner not being a participant in the meeting held on 9.5.2019 can not take any such recourse unless the work awarded to him was based on a legitimate procedure of tender. Even if there was any contract, it was confined between the petitioner and opposite party no. 3 of which there is no disclosure. The business is for profit, therefore, disclosures must be neat and clean between the parties. It is in these circumstances that the matter has come up before us. The question that crops up is as to whether the petitioner who was engaged by opposite party no. 3 for execution of work at its sole discretion has a right to pray for the release of money against the State (Opposite party nos. 1 and 2 & 5) as well as the Director National Health Mission U.P. i.e. opposite party no. 4.
The Court called upon all the opposite parties for filing a counter affidavit as well as written submissions. Two specific arguments in the light of pleas taken in the counter affidavits have been advanced by learned counsel for the State as well as by opposite party no. 4. Firstly, that the case involves determination of disputed questions of facts, therefore, the lis between the parties is not amenable to writ jurisdiction. The argument putforth is substantiated on the strength of case law reported as under :-
1. (2015) 7 Supreme Court Cases 728; Joshi Technologies International Inc. versus Union of India and others
2. 2021(1) AWC 92; Bio Tech System versus State of U.P. and others
3. 2019(2) AWC 1750; Lalloo Ji Rajiv Chandra and Sons versus Meladhikari Prayagraj, Mela Authority and others The second submission putforth by both the respondents i.e. State and Director National Health Mission, U.P. is to the effect that none of these two parties are privy to the contract entered into between the petitioner and opposite party no. 3. The specific argument putforth in para 9 of the written submissions filed by the State (opposite party nos.1, 2 & 5) reads as under :-
"9. That in the present case the claim sought to be set up by the petitioner has strongly disputed, and the petitioner has not been able to place on record any material to demonstrate that it was a party to any agreement in terms of which it would be entitled to raise any claim against the respondents."
The issue before us does not substantially hinge on the first argument rather it is the second argument that requires consideration for setting the controversy at rest.
In order to appreciate the argument putforth, it is to be noted that on raising every demand for the realization of bills by opposite party no. 3, the State had required the opposite party no. 3 to discose the name of the firm and its Bank account for the purposes of release of amount to the opposite party no. 3. The disclosure to the above extent, in our humble consideration, does not qualify the relationship of the State qua the petitioner to be a party to the work contract awarded to opposite party no. 3. Therefore, institution of the present petition in the pursuit of exclusive rights against the State and Director National Health Mission is wholly misconceived and suffers from mis-joinder of parties. The impleadment of opposite party no. 3 in the writ petition is nothing but an attempt on the part of the petitioner to institute a proxy or collusive proceeding. The opposite party no. 3 may have engaged the petitioners as an agent but any such deal would not entitle the petitioner to bring about a legal proceeding against the State government or the Central government so long as the obligation of performance of contract or indemnity offered, if any, to make up the deficiency was direct. The disclosures made by the opposite party no. 3 as regards the name of the firm or its account were merely to streamline its independent relationship between the Corporation and the State for its own interest and a tripartite agreement in the circumstances of the case was never arrived at expressly or by implication, the mere acknowledgment of the name of the firm and its Bank account would not bind the State for performance of financial obligations towards the petitioner directly and exclusively.
In a situation where the performance of public duty is interwoven between the two parties for its implementation, the entry of a third party in absence of a privity of contract is unrecognized under law, the scope whereof, remains undefined. Any interpretation in the light of the conduct of parties that too for consuming public money would be a dangerous preposition. It is this reason for which the rule of privity of contract was rigidly propounded in the case of Tweddle versus Atkinson reported in [1861] EWHC J57(QB).
The nature of the prerogative remedy of a mandatory order to perform a public duty by the public authorities arising from law and contract are distinct. For binding the State under the obligation of performance of a contract, firstly the State ought to be a party expressly and secondly there ought not to be a situation of determination of disputed questions of facts. In the present case, however, the petitioner does not appear to have assumed any better position except to remain an agent for the opposite party no. 3. The locus and identity of the petitioner has remained merged with the opposite party no. 3 for any claim whatsoever. The opposite party no. 3 has not putforth any claim before this Court, therefore, the legal hurdles in the way of the petitioner to lay a claim independently besides other legal obstacles coming in the way of locus do not enable this Court to step in, the reason being, that the real contract remains enforceable at the instance of opposite party no. 3 who has chosen to remain dormant against the State.
In the circumstances stated above, we are not convinced that the writ petition for the relief prayed herein can be entertained and it is open to opposite party no. 3 to lay his claim as may be permissible under law. The writ petition is accordingly dismissed with no order as to cost.
Order Date :- 20.01.2023 Fahim/kanhaiya