Rajasthan High Court - Jaipur
Man Structurals Ltd vs Raj Rajya Vidyut Pras. Nig.Ltd on 8 February, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Writ Petition No. 1616 / 2001
Man Structurals Ltd. Having its registered office at Near Loco,
Jaipur.
----Petitioner
Versus
Rajasthan Rajya Vidyut Prasaran Nigam Ltd Vidyut Bhawan, Jyoti
Nagar Jaipur through Superintending Engineer, Transmission Line
Procurement Circle, New Hotel Building, Ajmer Road, Jaipur.
----Respondent
Connected With S.B.Civil Writ Petition No. 1615 / 2001 K E C International Ltd., having its registered office at RPG Towers, Andheri-Kurla Road, J.B.Nagar, Mumbai 400 059.
----Petitioner Versus Rajasthan Rajya Vidyut Pras. Nigam.Ltd Vidyut Bhawan, Jyoti Nagar Jaipur through Superintending Enginneer, Transmission Line Procurement Circle, New Hotel Building, Ajmer Road, Jaipur.
----Respondent _____________________________________________________ For Petitioner (CW 1616/2001) : Mr. Pancham Surana (CW 1615/2001) : Mr. Mahendra Singh.
For Respondent(s) : Mr. Virendra Lodha, Sr. Counsel assisted by Mr. Jai Lodha.
_____________________________________________________ JUSTICE DINESH MEHTA Judgment Date of Judgment 08th February, 2017.
The petitioners have filed the present writ petition inter alia challenging the demand raised by the respondent Rajasthan (2 of 11) [ CW-1616/2001] Rajya Vidyut Prasaran Nigam Ltd. (hereinafter referred to as the 'RRVPNL or Nigam'), with the following prayers : -
Prayers (CW 1616/2001) "a) to quash the demand of Rs. 26,34,248.09 raised by the respondent vide letter dated 06th June 2000;
b) to quash the order dated 7.2.2001 passed by the Settlement Committee;
c) to declare that whatever the prices were paid by the respondent to the petitioner were just, proper and reasonable, and
d) to restrain the respondents from withholding the dues of the petitioner under any contract and to release the payment forthwith;
e) Any other appropriate interim order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be issued in favour of the Petitioner applicant."
Prayers (CW 1615/2001) "a) to quash the demand of Rs.26,99,057.75 raised by the respondent vide letter dated 6th June, 2000;
b) to quash the order dated 6.2.2001 and 8.3.2001 passed by the Settlement Committee;
c) to declare that whatever the prices were paid by the respondent to the petitioner were just, proper and reasonable, and
d) to restrain the respondents from withholding the dues of the petitioner under any contract and to release the payment forthwith;
e) Any other appropriate interim order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be issued in favour of the Petitioner applicant."
As identical facts and questions of law are involved in both the case, albeit some changes in relation to the date of order and amount involved, both the cases are being decided by a common order and for the purpose of deciding the questions (3 of 11) [ CW-1616/2001] involved skeleton facts of CW 1616/2001, Man Structurals Ltd. are being taken into consideration : -
The petitioner was awarded a contract for fabrication, galvanizing and supply of 220 KV D/C transmission line towers type A,B and D on tested design as supplied against TN-3253 and 132 KV D/C Transmission line tower type D on Board, design against specification No.RSEB/SE/TLPC/XEN/TL-A1/TN-3379 vide purchase order dated 06.03.1998. The purchase order in question contained various conditions and terms and after being accepted and signed by the petitioner, the same had been translated into a contract. As such the terms of the said purchase order formed a contract and in view of the provision contained therein the general terms and conditions of the contract issued by Rajasthan State Electricity Board were made mutatis mutandis applicable.
In terms of the said purchase order, the petitioner supplied the required material from 09.04.1998 to 29.08.1998. After completion of the supply, the petitioner raised its bills which were duly paid.
The dispute however, arose as a result of a letter/demand notice dated 06.06.2000 sent by the Superintending Engineer (TLPC) of the respondent-Nigam whereby a sum of Rs.26,34,248.09 was demanded on account of price variation. The said amount of price variation was calculated on the basis of formula given under the price variation clause of the purchase order. For the purpose of present controversy the parameter S1 is relevant which is reproduced here under : -
(4 of 11) [ CW-1616/2001] "S1 Ex-works price in Rs./MT of steel angles (as per IS 2062 for sections above 110 x 110 mm or steel sections conforming to IS 226 for lighter sections below and including 110 x 110mm which is relevant on the basis of actual despatch) is published by IEEMA and applicable on Ist working day of the month two months prior to the date of despatch (RR/LR Date)"
The basic bone of contention, between the parties is: what should be the applicable price of lighter section of the steel which are 110 x 110 mm and below, for which the price as per IS 226 has been mentioned in the purchase order while IS 226 has since been withdrawn.
According to the petitioner's case as mentioned in the memo of the writ petition and which were reiterated in its reply and in the representation to the Settlement Committee, as the IS 226 had been phased out, the stipulation of price on steel section below and including 110 x 110 x 10 MM as per IS 226 in the price variation formula was not relevant and in absence of any price available as per IS 226 petitioner was entitled to the prices on the basis of price applicable as per 2062 for higher section even for steel section below 110 x 110. Whereas Respondents' case is that since IS 226 has been withdrawn, the rates published by IEMA for lower section i.e. below 10x10 mm will be applicable.
On receipt of the above demand notice dated 06.06.2000, the petitioner Company made a representation dated 16.06.2000 to the Superintending Engineer (TLPC) and requested to drop the demand and in alternative it was requested that the matter be referred to Settlement Committee.
(5 of 11) [ CW-1616/2001] The petitioner has also challenged a communication dated 07.02.2001 (Annexure/5) filed with the writ petition claiming it to be a decision of the Settlement Committee as is evident from perusal of prayer clause (b).
Learned Counsel for the petitioner Mr. Pancham Surana submitted that the demand raised by letter dated 06.06.2000 is per se, illegal and arbitrary and the demand raised on account of price variation is contrary to the terms of the purchase order/agreement. Taking through various clauses of agreement and the circular of IEEMA he pointed out that it was an admitted case of the parties that the IS 226 had been withdrawn w.e.f. 15.06.1993 and was superseded by IS 2062, as such, in light of the clear condition of applicability of IS 226 for lighter sections, the actual price for such lighter section as claimed by the petitioner was payable as IS 226 stood withdrawn.
It may be noted that the petitioner had claimed prices applicable as per IS 2026 of higher section.
Arguing the other connected case in S.B.Civil Writ Petition No.1615/2001 KEC International Limited Vs. RRVPNL, Mr. Mahendra Singh argued that the demand raised vide letter/communication dated 27.01.2000 was absolutely illegal, having been issued without any notice to the petitioner. He added that the impugned demand notice is absolutely vague as no calculation, specification or reasons much less requisite ingredients on the basis whereof the impugned demand under price variation has been raised are contained, and thus prayed (6 of 11) [ CW-1616/2001] that the same be quashed. Mr. Singh thirdly argued that RSEB itself has become judge in his own cause. The respondent-Nigam had paid the amount pursuant to the invoices raised by the petitioner and if there was any doubt about the payment made, the respondent-Nigam ought to have filed a civil suit and got a decree issued, after proper adjudication of the dispute.
Mr. Singh relied upon judgment of Hon'ble Supreme Court reported in 1987 (2) SCC page 160 State of Karnataka vs Shri Rameshwara Rice Mills and also cited the following judgments: -
(I) AIR 1967 (SC) 1570 (2) AIR 1989 (SC) 997 (3) AIR 2004 (SC) 1815 Appearing on behalf of respondent-Nigam learned Senior Counsel Mr. Virendra Lodha assisted by Mr. Jai Lodha raised a preliminary objection that petitioners have challenged the order dated 7.2.2001 (Annex.5) in S.B.Civil Writ Petition No.1616/2001 and orders dated 6.2.2001 (Annex.5) and 8.3.2001 (Annex.7) in S.B.Civil Writ Petition No.1615/2001, claiming them to be the orders of Settlement Committee. These orders being (Annexure-5) in Writ Petition No.1616/2001 and (Annexure 5 & 7 respectively) in Writ Petition No.1615/2001 are not the orders of Settlement Committee and rather they are the communication sent by the Superintending Engineer (TLPC) in pursuance of the decisions of Settlement Committee. By way of these communications (7 of 11) [ CW-1616/2001] petitioners were informed about the decision of the Settlement Committee.
Mr. Lodha contended that the petitioners' so called dispute had been duly adjudicated by the Settlement Committee in terms of Clause 22 of the purchase order/agreement and petitioners have not laid any challenge to these decision of Settlement Committee, as such Writ Petition filed by the petitioners are not maintainable. He further submitted that until and unless a challenge is laid to the decisions of Settlement Committee on their own merit, petitioners cannot seek quashment of a consequential demand notice dated 7.2.2001 (Annex.5) in S.B. Civil Writ Petition No.1616/2001 and 6.2.2001 (Annex.5) and 8.3.2001 (Annex.7) in Civil Writ Petition No.1615/2001.
Learned counsel for the respondents further submitted that the Minutes of the Settlement Committee have been filed along with the reply (in Writ Petition No.1616/2001) in the year 2001 itself. Even the Minutes of subsequent meeting held on 3.5.2001 were also supplied to the petitioner along with additional affidavit filed on 6.01.2017. However the petitioner in its wisdom, has not chosen to challenge the same.
Advancing this argument; with respect to Civil Writ Petition No.1615/2001 KEC International Limited, he submitted that due to inadvertence, minutes of Man Structurals Limited had been supplied to the petitioner (KEC International Limited as Annexure R-4 with the reply) however during the course of arguments in the month of December and subsequently along with the additional (8 of 11) [ CW-1616/2001] affidavit filed by the respondent on 6.1.2017, Minutes of all the meetings namely meeting dated 06.01.2001, 03.05.2001, 05.10.2001 stood supplied to the petitioner.
In light of these developments, he contended that firstly it was the duty of the petitioners to place a copy of the Minutes of the meetings of the Settlement Committee at the time of filing the petitions and challenge them, otherwise when the petitioners have been supplied copies of the Minutes, the same should have been challenged by way of appropriate application or amendment in the writ petition.
It is pertinent to note that both these writ petitions were listed before this court on 31 st .January 2017 and during the course of arguments, this court gave a day's time to seek instructions in this regard.
When the matter was listed the next day i.e. on 1 st February, learned counsel for the petitioners have chosen to argue these cases on the basis of the pleadings as available, without even making any request to amend the petitions.
While considering the preliminary objection raised by Mr. Lodha, this Court finds that the notice of demand impugned by the petitioners dated 6.6.2000 and 27.1.2000 had already been questioned by the petitioners before the Settlement Committee in pursuance of Clause 22 of the agreement, which is a self chosen rather accepted Forum for adjudication of the disputes. Once such Settlement Committee comprising of higher officers of the respondent-Nigam, under the aegis of the Chairman and Managing (9 of 11) [ CW-1616/2001] Director of the Nigam, alongwith 5-6 Officers have decided the grievance of the petitioner, it is required of the petitioner to challenge, such decision of the Settlement Committee on its own merit.
Petitioners have neither chosen to amend their writ petitions nor there are any pleadings, questioning in the decision of Settlement Committee. It is rather surprising to find that the petitioners have not even made a reference of the decision of Settlement Committee instead thereof, they have challenged the consequential communication, pursuant to the Minutes of Settlement Committee being 07.02.2001 (Annexure/5) in writ petition No.1616/2001 and Annexxure-5 & 7 in writ petition No.1615/2001.
Petitioners have in a way sought treatment of the symptom, rather than asking alleviation of the disease itself. In absence of any pleadings and challenge to the decision of Settlement Committee which is a road block in petitioners way to get their rights adjudicated, this court does not feel inclined to enter into the arguments advanced by Mr. Pancham Surana on the merit of the demand notice.
As far as argument of Mr. Mahendra Singh are concerned, true it is, that the demand notice dated 27.01.2000 (Annexure-2) is bereft of any reason, and basis of calculation and the same has been issued without any opportunity of hearing to the petitioner and are not in conformity with the principles of natural justice.
(10 of 11) [ CW-1616/2001] However, since the petitioners have made representation before the respondent-Nigam and the Officers of the Nigam so also the Settlement Committee, having considered the representation and after hearing the representative of the petitioner company had taken a decision, the inherent infirmities in the demand notice dated 27.01.2000 and 6.6.2000 (Annex.-2) in both the writ petitions have been taken care of. In other words petitioners have been provided post-decisional hearing, including an opportunity of agitating their cause before the Settlement Committee before the recovery was effected. As such the arguments advanced by Mr. Singh, in relation to the demand notice (Annexure/2) being contrary to the principles of natural justice or ad-idem audi alteram partem wanesnay wracks, in the present factual background.
The argument Mr. Singh that no person can become Judge in his own cause lacks merit inasmuch as the respondent- Nigram has sent letters dated 27.01.2000 in S.B.Civil Writ Petition No.1615/2001 and 06.06.2000 in S.B.Civil Writ Petition No.1616/2001 asking the petitioners to deposit the demand within a period of 15 days. It was for the petitioners to have challenged these letters/demand notice if they were in any manner aggrieved. The petitioners as a matter of fact have challenged the same before the Settlement Committee as per clause 22 of the Agreement which has decided the issue, albeit against them. As such this argument is not tenable. If this argument is accepted then in no case any Corporation or awarder of the contract can (11 of 11) [ CW-1616/2001] ever raise a demand or claim. In this view of the matter the principle 'nemo judex in sua causa' has no application in the present case and this argument of Mr. Singh is rejected.
In view of the above, the preliminary objection raised by Mr. Virendra Lodha, learned Senior Counsel is accepted and the writ petitions, sans challenge to the Minutes of the Settlement Committee are dismissed.
Since the matter remained pending for last 16 years, it will however be open for the petitioners to file fresh writ petitions, laying challenge to the decision of the Settlement Committee in accordance with law, lest the litigants would suffer for their own lethargy, if not, fault of their lawyers.
Both the writ petitions are dismissed.
(DINESH MEHTA)J. N.Gandhi/