Gauhati High Court
WP(C)/2285/2018 on 9 June, 2022
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/8
GAHC010073182018
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) No. 2285/2018
1: Abhijit Malakar
S/o- Late Suresh Malakar,
R/O- VILL- Dudhpatil-VII,
P.O. Larsinpar, Dist-Cachar, Assam
Pin- 788002
2: Maksal Ahmed Laskar
S/o- Makbul Ahmed Laskar
R/O- Dudhpatil P.S-Silchar
P.O- Haticherra VII
Dist-Cachar, Assam
Pin- 788002
Prop of Laskar Hardware and Supplier
.................. Petitioners
-VERSUS-
1: The State of Assam
Rep. by the Commissioner and Secretary
to the Govt. of Assam, Panchayat
and Rural Development Deptt,
Dispur, Guwahati-781006.
2: The Deputy Commissioner and
District Programme Coordinator, MGNREGA
Dist-Cachar, Assam,
Pin-788001
3: The Project Director, DRDA, Cachar
PWD Godown Road Near Police Parade
Ground Silchar-788001,
Dist-Cachar, Assam.
4: The Block Development Officer and
Page No. 2/8
Programme Officer MGNREGA Borkhola
Development Block Borkhola
Dist-Cachar, Assam,
PIN- 788110.
5: The Junior Engineer Borkhola
Development Block (BDO) MGNREGA
Borkhola Development Block Borkhola
Dist-Cachar, Assam, Pin- 78811.
.................. Respondents
Advocates :
Petitioners : Mr. F.Z. Mazumder, Advocate
Respondent nos. 1, 4 & 5 : Mr. N. Goswami, Standing Counsel
Respondent no. 2 : Mr. N. Goswami,
Junior Govt. Advocate, Assam
Date of Hearing, Judgment & Order : 09.06.2022
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
JUDGMENT & ORDER
Heard Mr. F.Z. Mazumder, learned counsel for the petitioners; Mr. S. Dutta, learned Standing Counsel, Panchayat & Rural Development [P&RD] Department for the respondent nos. 1, 4 & 5; and Mr. N. Goswami, learned Junior Government Advocate, Assam for the respondent no. 2.
2. The 2 [two] petitioners have joined together to institute this writ petition seeking inter alia a direction to the respondent authorities to release forthwith an amount of ₹ 95,31,386/- against the materials the petitioners claimed to have supplied to the respondent authorities in connection with the MGNREGA Scheme and also for a direction to initiate an investigation through the Central Bureau of Investigation [CBI] with regard to the payment made in connection with false bills submitted by unknown persons/proprietors for supply of materials under the MGNREGA Scheme in Borkhola Development Block, Cachar and for misuse of public money thereby.
Page No. 3/83. The petitioner no. 1 is the proprietor of M/s Maa Kali Hardware & Suppliers whereas the petitioner no. 2 is the proprietor of M/s Laskar Hardware & Suppliers. It is the claim of the petitioners that they had supplied materials for various constructions undertaken in Borkhola Development Block, District - Cachar under the MGNREGA Scheme. According to the petitioners, after supply of materials, they had submitted the final bills against those supplied materials through bills viz. Bill No. 558 dated 13.09.2016 for an amount of ₹ 1,92,874.00, Bill No. 559 dated 14.09.2016 for an amount of ₹ 1,92,874.00, Bill No. 560 dated 14.09.2016 for an amount of ₹ 1,93,964.00, Bill No. 561 dated 15.09.2016 for an amount of ₹ 1,98,300.00, Bill No. 562 dated 16.09.2016 for an amount of ₹ 1,07,720.00, Bill No. 735 dated 20.09.2016 for an amount of ₹ 1,86,494.00, Bill No. 738 dated 20.09.2016 for an amount of ₹ 73,320.00, Bill No. 62 dated 18.09.2016 for an amount of ₹ 1,08,420.00, Bill No. 63 dated 16.09.2016 for an amount of ₹ 1,08,490.00, Bill No. 64 dated 17.09.2016 for an amount of ₹ 1,97,512.00, Bill No. 554 dated 10.09.2016 for an amount of ₹ 1,99,494.00, Bill No. 555 dated 11.09.2016 for an amount of ₹ 56,290.00, Bill No. 573 dated 12.09.2016 for an amount of ₹ 52,010.00, Bill No. 572 dated 13.09.2016 for an amount of ₹ 1,94,956.00, Bill No. 571 dated 19.09.2016 for an amount of ₹ 1,94,956.00, Bill No. 752 dated 19.09.2016 for an amount of ₹ 1,78,200.00, Bill No. 754 dated 19.09.2016 for an amount of ₹ 1,78,200.00, Bill No. 756 dated 19.09.2016 for an amount of ₹ 1,58,400.00, Bill No. 757 dated 19.09.2016 for an amount of ₹ 1,49,229.00, Bill No. 760 dated 19.09.2016 for an amount of ₹ 1,83,843.00, Bill No. 763 dated 19.09.2016 for an amount of ₹ 1,83,843.00, Bill No. 765 dated 19.09.2016 for an amount ₹ 1,22,562.00, Bill No. 767 dated 19.09.2016 for an amount of ₹ 1,80,480.00, Bill No. 768 dated 19.09.2016 for an amount of ₹ 1,80,480.00, Bill No. 770 dated 19.09.2016 for an amount of ₹ 1,80,480.00, Bill No. 805 dated 30.01.2017 for an amount of ₹ 1,99,625.00, Bill No. 806 dated 30.01.2017 for an amount of ₹ 1,24,800.00, Bill No. 807 dated 30.01.2017 for an amount of ₹ 1,48,622.00, Bill No. 808 dated 30.01.2017 for an amount of ₹ 1,98,399.00, Bill No. 809 dated 30.01.2017 for an amount of ₹ 1,95,019.00, Bill No. 810 dated 30.01.2017 for an amount of ₹ 1,12,000.00, Bill No. 811 dated 30.01.2017 for an amount of ₹ 1,99,950.00, Bill No. 812 dated 30.01.2017 for an amount of ₹ 1,74,990.00, Bill No. 813 dated 25.01.2017 for an amount of ₹ 1,80,000.00, Bill No. 814 dated 25.01.2017 for an amount of ₹ 1,99,995.00, Bill No. 815 dated 25.01.2017 for an amount of ₹ 1,99,995.00, Bill No. 816 dated 25.01.2017 for an amount of ₹ 1,44,010.00, Bill No. 817 dated 25.01.2017 for an amount of ₹ 1,35,000.00, Bill No. 714 dated 20.09.2016 for an amount of ₹ 1,73,745.00, Bill No. 718 dated 20.09.2016 for an amount of ₹ 1,73,745.00, Bill No. 719 dated 20.09.2016 for an amount of ₹ 1,73,745.00, Bill No. 742 dated 20.09.2016 for an amount of ₹ 63,450.00, Bill No. 556 dated 16.09.2016 for an amount of ₹ 1,07,236.00, Bill No. 733 dated 19.09.2016 for an amount of ₹ 97,666.00, Bill No. 781 dated 19.09.2016 for an amount of ₹ 1,53,784.00, Bill No. 65 dated 17.09.2016 for an amount of ₹ 1,92,512.00, Bill No. 66 dated 16.09.2016 for an amount of ₹ 1,00,640.00, Bill No. 549 dated 12.09.2016 for an amount of ₹ 1,93,170.00, Bill No. 553 dated 14.09.2016 for an amount of ₹ 1,45,060.00, Bill No. 786 Page No. 4/8 dated 19.09.2016 for an amount of ₹ 1,81,420.00 & Bill No. 794 dated 20.09.2016 for an amount of ₹ 1,04,247.00.
4. It transpires that the final bills were submitted during the years : 2016-2017. According to the petitioners, the total amount of all the bills was ₹ 95,31,386/-. During that period, a number of officials had submitted complaints alleging that irregularities had taken place in respect of supply of materials under the MGNREGA Scheme in the Borkhola Development Block. It was during that period, the bills of the petitioners which were uploaded for payment in the MIS [Management Information System], MGNREGA through the Programme Officer came to be frozen. By enclosing the final bills with the writ petition, the petitioners have asserted that they had supplied all the materials as indicated in the final bills. When the said amount has not been disbursed by the respondent authorities, the petitioners have approached this Court by this writ petition seeking inter alia a direction, as mentioned above.
5. It is submitted at the bar that the office of the Project Director, District Rural Development Authority [DRDA] is no longer in function.
6. Mr. Mazumder, learned counsel for the petitioners has submitted that there is no pleading in the writ petition as to why the petitioners have sought for an investigation by the Central Bureau of Investigation [CBI] and has, therefore, submitted that he is not pressing for the said. In so far as the claim of the petitioners regarding the alleged outstanding dues amounting to ₹ 95,31,386/-, he has submitted that the final bills annexed therewith go to show that receipts of those were duly acknowledged by the Accredited Engineer, Borkhola Development Block and the Junior Engineer, Borkhola Development Block under their respective seals and signatures.
7. Mr. Dutta, learned Standing Counsel, P&RD Department has referred to the affidavit-in-opposition filed by the respondent no. 3 to submit that there are allegations that there was commission of forgery in raising and submitting the bills and there is no admission of liability on the part of the departmental authorities.
8. I have considered the submissions of the learned counsel for the parties and also perused the Page No. 5/8 materials brought on record by the parties through their respective pleadings.
9. In the counter affidavit filed by the respondent no. 3, it has been categorically stated that the petitioners were never engaged by the respondent no. 5 to perform the supply works for rural constructions under Borkhola Development Block. The petitioner no. 2 had, however, undertaken some supply works in the year : 2015-2016 and all the payments with regard to his bills had been cleared and there was no outstanding bills for any supply works. It has been averred that the petitioners had submitted bills with forged signature of a Member of the concerned Anchalik Panchayat viz. Smt. Nirupama Malakar, who is incidentally the mother of the petitioner no. 1. The said Member had submitted that a letter dated 19.09.2017 wherein it was mentioned that the then Project Manager, DRDA, Cachar submitted some bills which were certified by forging her signature. Based on such complaint, the then Block Development Officer, Borkhola Development Block had filed a First Information Report [FIR] before the Officer In- Charge, Silchar Police Station on 05.02.2018 against the petitioner no. 1 herein. It has been stated that the said FIR was lodged after making an enquiry by visiting the sites of work and making queries with the Village Monitoring Committees. The said FIR has been registered as Silchar Police Station Case no. 511/2018 for the offences under Sections 468/471/420, Indian Penal Code [IPC].
10. There has been denial about the veracity of the bills. It is noticed that the Block Development Officer in the FIR lodged against the petitioner no. 1 had stated that the then Accredited Engineer in a letter had stated that his signatures were taken under pressure. It is also reflected from a letter dated 08.02.2018 of the Block Development Officer, Borkhola Development Block, which was addressed to the Project Director, DRDA, Cachar, Silchar that the 2 [two] petitioners had threatened the Engineers of the Block. The Accredited Engineer of the Block had requested for deletion of the material bills relating to the year : 2016- 2017 from the MIS as they were false and the same fact was intimated by the Project Director, DRDA, Cachar to the Commissioner of Panchayat & Rural Development [P&RD] Department by his letter dated 07.03.2018.
11. Mr. Mazumder, learned counsel for the petitioners has submitted that the Engineer and the Accredited Engineer for their vested interest had brought those allegations. In fact, the Member of the Anchalik Panchayat viz. Smti. Nirupama Malakar who is the mother of the petitioner no. 1, had later on resiled from her earlier version in a letter dated 09.11.2017 stating that she had never made any complaint against her son i.e. the petitioner no. 1. An enquiry was also caused by the Deputy Commissioner, Cachar Page No. 6/8 into the alleged irregularities and an enquiry report had been submitted by the Deputy Commissioner, Cachar. In a letter dated 09.06.2013 written by the Deputy Commissioner, Cachar to the Commissioner, Panchayat & Rural Development [P&RD] Department, Assam, it was mentioned that in the enquiry caused through the Additional Deputy Commissioner, Silchar, Cachar, it was observed that the names of the vendors were deliberately changed against the schemes.
12. The entire copy of the enquiry report so submitted by the Deputy Commissioner has not been placed on record. The respective contentions of the petitioners have given rise to a number of disputed questions of facts.
13. It has been settled by a long line of decisions that the jurisdiction of the High Court under Article 226 of the Constitution of India 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 Article. In this writ petition, though the petitioners have asserted that after they had supplied a number of materials in connection with construction works undertaken under the MGNREGA Scheme. But the orders against which those alleged supplies were made, are not part of the record. A glance at one of the alleged final bills, available at Page no. 32 of the case papers, has reflected that it did not bear any reference to any supply order but it was certified under the seal and signature of the Accredited Engineer, Borkhola Development Block certifying that the materials were received in well and good conditions. The Accredited Engineer had, however, informed the higher authorities that he had to subscribe his signature under pressure. Further, the Commissioner, Panchayat & Rural Development [P&RD] Department nor the State Government in the Panchayat & Rural Development [P&RD] Department has expressly admitted liabilities against the final bills mentioned by the petitioners in this writ petition seeking invocation of the exercise of extra-ordinary and discretionary jurisdiction of this Court.
14. It is well settled that the exercise of the jurisdiction is discretionary and it is not to be exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will be exercised subject to well recognition as self imposed limitations. In a writ petition under Article 226 of the Constitution, the High Court has jurisdiction to try issues both of fact and law. In the process, the Court has to consider as to what facts are in dispute and what facts are not in dispute and such a stage comes after the exchange of pleadings in the form of affidavits amongst the parties is complete. A writ Page No. 7/8 petition is ordinarily decided on the basis of affidavits. A lis arising out of contractual matter is also not beyond the purview of the judicial review though such purview is limited and the discretionary writ jurisdiction in such matters is to be exercised on sound judicial principles. When a writ petition raises disputed questions of fact requiring appreciation of evidence, both oral and documentary, and for determination of such disputed questions of fact, examination of witnesses would be necessary then it may not be convenient to decide such disputes in a proceeding under Article 226 of the Constitution and then in such a case, the Court may decline to try a writ petition. Though no authority is required to be cited for such settled proposition of law, the decision of the Hon'ble Supreme Court of India in Gunwant Kaur vs. Municipal Committee Bhatinda, reported in [1969] 3 SCC 769; Noble Resources Ltd. vs. State of Orissa and another, reported in [2006] 10 SCC 236; and State of Kerala and others vs. M.K. Jose, reported in [2015] 9 SCC 433 can be referred to as references. It is also settled, as has been observed by a Constitution Bench of the Hon'ble Supreme Court of India in Thansingh Nathmal vs. The Superintendent of Taxes, Dhubri and others, reported in AIR 1964 SC 1419, that the High Court in its jurisdiction under Article 226 of the Constitution 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 present one is such a case which would require determination of several disputed questions of facts through both oral and documentary evidence with examination of witnesses from the parties in a trial and the present writ proceeding is found to be not the proper and appropriate proceedings to determine such kind of disputed questions of facts.
15. A full bench of this Court in Writ Appeal No. 484/2005 [Tamsher Ali and Ors. vs. State of Assam and Ors.], and similar other 194 writ petitions reported in 2008 [4] GLT 1 [FB], has observed that a writ petition involving contractual liability can be considered only in the event there is admission of liability certified by the respective Chief Engineer in the Works Department and in respect of other departments by the Head of the Departments. There is no admission of liability by the concerned Chief Engineer and/or by the Head of the Department in the case in hand.
16. Having regard to the scope and ambit of the power of judicial review in a case involving disputed questions of facts and the discussions made above with regard to the facts and circumstances obtaining in the case in hand, this Court is of the considered view that the disputes involved in this writ petition, as narrated above, cannot be decided in a writ proceeding. As a corollary, the writ petition is Page No. 8/8 not to be entertained. It is accordingly not entertained. It is, however, observed that non-entertainment of this writ petition may not preclude the petitioner to take recourse to appropriate for proceedings before an appropriate forum as may be permitted under the law. There shall be no order as to cost.
JUDGE Comparing Assistant