Shree Tatyasaheb Kore Warana Sahakari Sakhar Karkhana Ltd. v. State of Jharkhand
2015-08-06
SHREE CHANDRASHEKHAR
body2015
DigiLaw.ai
ORDER : Aggrieved by order dated 28.07.2015 whereby, the petitioner-society has been directed to stop the supply of sugar, the present writ petition has been filed. 2. The petitioner-society registered under Bombay Cooperative Societies Act, 1925 (Bom. VII of 1925) on 27.09.1955 claims itself a leading manufacturer and supplier of sugar to various Central/State Authorities/Organisations/ Institutions. It is claimed that it has annual turnover of Rs. 881.10 crores in the financial year, 201314. Pursuant to e-Tender notice dated 04.03.2015 for supply of sugar in all godowns of Jharkhand, the petitioner was declared successful bidder and accordingly, an agreement between the petitioner and the Department of Food, Public Distribution and Consumer Affairs (DFPD&CA) was executed on 11.05.2015. The work order was issued on 12.05.2015 which was subsequently modified on 21.05.2015. The packaging design for One Kg Sugar Pack was approved by the Department on 23.05.2015 and the 1st work order was issued on 25.05.2015. It is stated that the petitioner started supply of sugar from 31.05.2015 and the last supply order was received by the petitioner on 29.06.2015. 3. Heard the learned counsel for the parties. 4. The learned Senior counsel for the petitioner submits that the work order for supply of 70,196.66 Quintals of sugar per month is intended for supply of sugar throughout the State of Jharkhand. The petitioner commences supply of sugar after it receives work orders from the concerned Districts. Since the packaging design for the Sugar Pack was approved only on 23.05.2015 and the 1st work order was issued on 25.05.2015, there is no question of default for the month of May, 2015. The petitioner however, has been directed to stop supply of sugar without disclosing any reason except, that it has committed breach of terms of Agreement. The petitioner has already supplied 5468 MT as on 28.07.2015 and, additional quantity of 2653.5 MT has already been dispatched through Railways on 25.07.2015 and it is lying at Jasidih. It is submitted that in the rainy season the sugar which is a perishable item is likely to deteriorate and if a direction is not issued to the respondent-State of Jharkhand for accepting further supply from the petitioner-society, it would suffer irreparable loss and injury. Assailing the impugned order dated 28.07.2015, it is contended that it has been issued in gross violation of principles of natural justice.
Assailing the impugned order dated 28.07.2015, it is contended that it has been issued in gross violation of principles of natural justice. By a cryptic order like the one issued by the respondent no. 2, the valuable rights of the petitioner under the agreement dated 11.05.2015 as modified on 21.05.2015 cannot be taken away. 5. Percontra, Mr. Jai Prakash, the learned A.A.G. submits that the petitioner committed serious breach of terms of Agreement. It has failed to maintain supply in terms of the Agreement. As on 17.07.2015, the petitioner could supply 2082.482 MT sugar only which discloses incapacity of the petitioner to make further supplies. Relying on clauses of the tender document, it is submitted that the Agreement with the petitioner vests power in respondent no. 2 to order suspension of supply. 6. I have carefully considered the rival contentions raised on behalf of the parties and perused the documents on record. 7. In the counter-affidavit, the respondent-State of Jharkhand has averred that the e-Tender notice was floated for supplying 2 Kg subsidized sugar per family per month to BPL families. It is further contended that in view of reduction in price of sugar worldwide, it is desirable that the petitioner is invited for further negotiations on the issue of price. From the materials brought on record, I find that there is no allegation that the sugar supplied by the petitioner-society is of inferior quality. The only ground taken by the respondent-State of Jharkhand is delay in supply of sugar. It is not in dispute that the contractor would make supplies only upon receiving work orders from different Districts in the State. It has not been disclosed in the counter-affidavit whether work orders for entire quantity of 7019.66 MT of sugar was actually issued to the petitioner. In the counter-affidavit, it is pleaded that the petitioner could supply 2082.482 MT sugar only. I am of the opinion that the stand taken in the counter-affidavit is contradictory. On the one hand, the petitioner has been directed to stop supply for not adhering to the time-schedule and on the other hand, in the counter-affidavit, the respondents have averred as under: 16.
I am of the opinion that the stand taken in the counter-affidavit is contradictory. On the one hand, the petitioner has been directed to stop supply for not adhering to the time-schedule and on the other hand, in the counter-affidavit, the respondents have averred as under: 16. “That it is humbly stated and submitted that the supply of sugar has been suspended owing to the facts mentioned above and proper decision on further supply shall be taken as soon as the opinion of the Law Department is received.” 8. In view of the stand taken by the respondent-State of Jharkhand that the e-Tender was floated for supplying subsidized sugar to the BPL families, a direction suspending supply of sugar for the aforesaid reason, in my opinion, would not be in public interest. In every case of breach of terms of contract, termination of contract is not the first option. The agreement itself provides extension of 7 working days on payment of penalty however, the said provision was not resorted to by the respondents. It is not disputed in the counter-affidavit that the petitioner-society is capable of fulfilling its commitment under the agreement dated 11.05.2015. The impugned decision has been taken without even issuing a notice to the petitioner. It is well settled as a fundamental rule of law that, no decision should be taken which will affect the right of a person without first being informed of the case and giving an opportunity of hearing. In “State of Orissa v. (Miss) Binapani Dei” reported in AIR 1967 SC 1269 , it has been held that even an administrative order or decision, in matters involving civil consequences, must be made consistent with rules of natural justice. In “Canara Bank & Ors. Vs. Debasis Das & Ors.” reported in (2003) 4 SCC 557 , the Hon'ble Supreme Court has observed thus, 15. “The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled.…............Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play.
These principles are well settled.…............Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time...................”. 9. In the counter-affidavit, the respondents have disclosed another reason for directing the petitioner to suspend supply of sugar. The said reason is disclosed in paragraph nos. 13 and 14 of the counter-affidavit which are extracted below : 13. “That it is humbly stated and submitted that sugar prices have crashed down throughout the country and buying at the old rates will be a huge drain in the state exchequer in the prevailing market situation. 14. That it is humbly stated and submitted that distribution of sugar to the PDS beneficiaries is a welfare scheme and, therefore, extra benefits accruing out of fall in prices should be shared with the state also.” 10. There cannot be a doubt that once price has been fixed through negotiations and a contract has been signed, the same cannot be altered on the ground of a subsequent development. Moreover, the State cannot take such a plea against an individual who naturally expects the State to protect the rights of its citizen. The State in all its actions, must display fairness to the citizen. If terms of contract are permitted to be altered for the reasons disclosed in paragraph 13 and 14 of the counter-affidavit, it would create a chaos in the system. The State must respect and maintain the sanctity of the Agreements executed by it. 10. In view of the aforesaid discussions, impugned order dated 28.07.2015 which is a non-speaking order, cannot be sustained in law and accordingly, it is quashed. The petitioner is directed to make representation to the respondent no. 2 on 11.08.2015, undertaking compliance of time-schedule and the respondent no. 2 shall determine reasonable penalty to be imposed upon the petitioner for default in the month of June and July, 2015. In the meantime, the petitioner shall be permitted to supply 2653.5 MT sugar which is lying at Jasidih. 11. The writ petition stands allowed, in the above terms. Petition allowed.