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Gauhati High Court · body

2017 DIGILAW 443 (GAU)

Mafatlal Industries Ltd. v. State of Assam

2017-04-07

ARUP KUMAR GOSWAMI

body2017
JUDGMENT : 1. Heard Mr. D. Das, learned senior counsel for the petitioners in both the writ petitions. Also heard Mr. Y. Doloi, learned Additional Advocate General, Assam, appearing for all the respondents in WP(C) No. 1853/2016 and respondent Nos. 1, 3 to 29 in WP(C) No. 2744/2016 and Mr. B. Gogoi, learned counsel, Finance Department, appearing for the respondent No. 2 in WP(C) No. 2744/2016. 2. The subject-matter of the two writ petitions arise more or less out of the same issue and accordingly, the same had been listed together for consideration. As agreed to by the learned counsel appearing for the parties, the two writ petitions are taken up for disposal at the admission stage and by this common judgment and order, the same are being disposed of. 3. The common thread running through both the writ petitions, inter alia, is that the petitioner, which is a public limited company, is one of the largest composite Textile Mills in the country and its main business includes production, manufacturing and supply of yard-dyed-shirting, voiles, prints, linen, bleached white fabrics, rubia, value added and fashion denims, bottom weights, corduroys, school uniforms, corporate/institution uniforms, yams and ready-mades. The petitioner Company is equipped with world class technology manufacturing units at Navsari and Nadiad and it has the capacity to produce various kinds of premium fabrics. 4. The petitioner Company is equipped with world class technology manufacturing units at Navsari and Nadiad and it has the capacity to produce various kinds of premium fabrics. 4. The Director of Handloom & Textiles, respondent No. 2 in WP(C) No. 1853/2016, who is respondent No. 3 in WP(C) No. 2744/2016, vide e-tender dated 7.12.2015, had invited bids from registered manufacturers or their authorised dealers for the purpose of supply of 2/60s Mercerized Bleached Cotton Hank Yam and 2/60s Mercerized Dyed Cotton Hank Yam (Colour fast to sunlight and washing) to the weavers under Chief Minister's Special Programme for the year 2015-16 in 6 categories, namely, A, B, C, D, E, and F. Group A of e-tender was in respect of supply of 2/60s Mercerized Bleached Cotton Hank Yam and 2/60s Mercerized Dyed Cotton Hank Yam (Colour fast to sunlight and washing) for the districts of Tinsukia, Dibrugarh, Sivasagar and Golaghat, Group B for the districts of Jorhat, Nagaon and Morigaon, Group C for the districts of Dhemaji, Lakhimpur, Sonitpur and Udalguri, Group D for the districts of Kamrup, Kamrup (M), Nalbari and Barpeta, Group E for the districts of Bongaigaon, Dhubri, Goalpara, Kokrajhar, Chirang and Baksa, Group F for the districts of Cachar, Hailakandi, Karimganj, Dima Hasao and Karbi Anglong. The last date of submission of tender was 28.12.2015 up to 12:00 Noon and opening of the bid was also fixed on the very same day at 1:00 p.m. 5. The petitioner-company participated in respect of Groups C, D, E and F. The tender was designed on two-bid system, namely, Technical Bid (Part I) and Price Bid (Part II). After evaluation of the tender documents by the respondent-authorities, the petitioner-company was found to be successful in all the Groups that it had participated and accordingly, the Director of Handloom & Textiles issued work order dated 20.1.2016 in respect of the aforesaid Groups mentioning the quantity and the rate, which is the rate quoted by the petitioner. By the said order, the petitioner was requested to make necessary arrangement of supply of the materials within 45 days from the date of issue of the supply order. Pursuant to the aforesaid work order dated 20.1.2016, an agreement was entered into by and between the authorised representative of the petitioner-company and the Director of Handloom & Textiles on that very day. Pursuant to the aforesaid work order dated 20.1.2016, an agreement was entered into by and between the authorised representative of the petitioner-company and the Director of Handloom & Textiles on that very day. It is stated that production work was started immediately and goods were despatched by trucks on different dates and that the last despatch was made on 29.2.2016.60% of the despatched goods were received and acknowledged at the destination points of different Districts/Sub-Divisions of the State of Assam. The remaining 40% of the despatched goods had also reached the destination points for delivery on 4.3.2016. However, delivery was not accepted on 5.3.2016 on the ground that model Code of Conduct for the ensuing Assembly election for the State of Assam had come into effect on 4.3.2016. Because of refusal on the part of the respondent-authorities to accept the yam, the petitioner was compelled to take godowns on rent and was forced to unload the materials there. The petitioner submitted a letter dated 10.3.2016 to the Director of Handloom & Textiles to take a decision with regard to acceptance of unloaded materials kept in the rented godowns after verification but as the same was not done, WP(C) No. 1853/2016 was filed praying for a writ of mandamus to the respondent-authorities to receive the goods/materials supplied by the petitioner Company in terms of the order dated 20.1.2016 as well as the agreement dated 20.1.2016 and to release the payment for goods/materials supplied. In WP(C) No. 1853/2016, it is also stated that due to inability to obtain secured godowns, 60MT of materials was re-booked for its factory units at Gujarat. 6. It appears from the order dated 18.3.2016 passed in WP(C) No. 1853/2016 that the learned Advocate General, Assam, amongst others, had submitted that the Government would have no objection to receive the supply once the poll process was over and that in the interregnum, the goods could be kept in a private warehouse arranged by the supplier at its cost. As an interim measure, the court directed that sanctioned amount of Rs. 50 crores for procurement of yam under the Chief Minister's Special Programme for the year 2015-16 should not be diverted. 7. As the respondent-authorities had refused to accept the balance quantity of materials even after the poll process was over and as the amount of Rs. As an interim measure, the court directed that sanctioned amount of Rs. 50 crores for procurement of yam under the Chief Minister's Special Programme for the year 2015-16 should not be diverted. 7. As the respondent-authorities had refused to accept the balance quantity of materials even after the poll process was over and as the amount of Rs. 28,47,29,028.50 in respect of goods already delivered and received by the respondent-authorities was not paid, WP(C) No. 2744/2016 was filed praying for a writ of mandamus to direct the respondent-authorities to make payment of the aforesaid amount of Rs. 28,47,29,028.50 and to receive the remaining goods lying in the rented godowns. It is stated in the writ petition that the petitioner is paying Rs. 4,40,000 towards rent of the godowns. 8. In the affidavit-in-opposition filed by the Director of Handloom & Textiles, it is stated that in terms of the order dated 20.1.2016, supply was required to be completed by 4.3.2016. In paragraph 7, it is stated that the respondents had received 5,73,790 kg of 2/60s Mercerized Bleached and Dyed Cotton Hank Yam out of 10,07,110 kg and that in terms of Packets, which contains 1.5 kg of 2/60s Mercerized Bleached Cotton Hank Yam and 0.5 kg of Dyed Cotton Hank Yam, the petitioner had supplied 2,86,895 Packets out of 5,03,355 Packets. Though the petitioner had sought for extra time of 5/6 days for supply vide letter dated 3.3.2016, no extra time was granted to the petitioner and, therefore, when materials arrived at the destination after the office hours on 4.3.2016, same were not received by the Officers at the destination. 9. In the affidavit-in-reply filed by the petitioner to the said affidavit, it is stated that supply was completed within 45 days, i.e., within 5.3.2016. On 5.3.2016, only 3 trucks had reached destination points and all other trucks carrying the materials had reached various destination points on 3.3.2016 and 4.3.2016. It is stated that letter dated 3.3.2016 was sent apprehending that due to logistical reasons there might be some delay in transit. It is also stated that due to flood, petitioner's rented godown was also affected by flood waters in Dhubri district as well as in some other places. It is stated that letter dated 3.3.2016 was sent apprehending that due to logistical reasons there might be some delay in transit. It is also stated that due to flood, petitioner's rented godown was also affected by flood waters in Dhubri district as well as in some other places. An additional affidavit-in-opposition was filed on behalf of the respondent No. 3 bringing on record a letter dated 31.8.2016 issued by the Commissioner & Secretary to the Government of Assam, Handloom, Textiles and Sericulture Department indicating that only yam, which is lying undistributed, shall be distributed as is where is basis. It is also indicated that no further yam will be procured even for the constituencies where yarn had not been supplied. 10. In WP(C) No. 2744/2016, on the identical lines, an affidavit was filed by the Director of Handloom & Textiles. It is further stated that the Model Code of Conduct had come into effect on 4.3.2016. It is stated that steps were taken for getting fund through ceiling proposal for an amount of Rs. 28,53,02,818.50 so that payments can be made to the supplier. The respondent No. 2 in WP(C) No. 274 4/2016, i.e., the Commissioner & Secretary to the Government of Assam, Finance (EC-II) Department through the Deputy Secretary had filed an affidavit stating that it had not received any proposal from the Handloom, Textile & Sericulture Department for concurrence towards release of an amount of Rs. 28,47,29,028.50. It is further stated that sanction order dated 14.1.2016, which is annexed as Annexure 2 of the writ petition, was issued by the Handloom, Textile and Sericulture Department with the concurrence of the Finance Department with certain conditions. No amount against the budget provision for procurement of yarn under Chief Minister's Special Programme for the year 2015-16 had been released and that the proposal moved by the Handloom, Textile and Sericulture Department for an amount of Rs. 28,53,02,818.50 was refused on the ground that Head of Account in the budget provision and fixation of ceiling proposal did not tally and that the supply order was not completed due to imposition of model Code of Conduct for Assam Legislative Assembly Election, 2016. Accordingly, the Handloom, Textile and Sericulture Department was requested to re-submit the proposal with proper Head of Account and completion certificate and that no fixation of ceiling proposal had been received by the Finance (Budget) Department. 11. Accordingly, the Handloom, Textile and Sericulture Department was requested to re-submit the proposal with proper Head of Account and completion certificate and that no fixation of ceiling proposal had been received by the Finance (Budget) Department. 11. An additional affidavit-in-opposition was filed by the Director of Handloom, Textile and Sericulture Department bringing on record the letter dated 31.8.2016, which was also placed by way of an additional affidavit in WP(C) No. 1853/2016. 12. In the affidavit-in-reply, stand taken in the affidavit-in-reply filed by the petitioner against the affidavit-in-opposition of the Director of Handloom & Textiles in WP(C) No. 1853/2016, is reiterated. Additionally, it is stated that on the basis of an application dated 23.6.2016 filed under the Right to Information Act, 2005 (‘RTI Act’), the petitioner could learn that pursuant to a tender notice dated 30.10.2015 for supply of polar blankets, the respondent-authorities had accepted the supplied articles beyond the time stipulated, on 24.2.2016, pursuant to the work order dated 8.1.2016, though supply was to be completed within a period of 45 days on 22.2.2016. 13. Mr. D. Das, learned senior counsel for the petitioner submits that the respondent-authorities acted illegally and arbitrarily in refusing to accept the materials supplied by the petitioner within the due date, which is 5.3.2016, by wrongly construing that the period of 45 days expired on 4.3.2016. In support of his aforesaid submission, learned senior counsel placed reliance on section 9 of the General Clauses Act, 1897 (‘GC Act) as well as a decision of the Hon’ble Supreme Court in the case of Tarun Prasad Chattarjee v. Dinanath Sharma, (2000) 8 SCC 649 . The learned senior counsel submits that though initially a letter dated 3.3.2016 was issued stating that there may be some delay in delivering the goods, no such extension of time was required and all the materials had reached the destination points on 4.3.2016, save and except materials contained in 3 trucks, which reached on 5.3.2016, which is also within the period of 45 days. He submits that it is nowhere disputed in the affidavits that supplies were not effected on or before 5.3.2016 and what is highlighted in the affidavits, according to Mr. Das, is that materials, which reached the destination after 4.3.2016, cannot be accepted. He submits that it is nowhere disputed in the affidavits that supplies were not effected on or before 5.3.2016 and what is highlighted in the affidavits, according to Mr. Das, is that materials, which reached the destination after 4.3.2016, cannot be accepted. The learned Advocate General had made a statement before the court that the State would accept the materials after the Code of Conduct was over and he also suggested that in the interregnum period, the petitioner might keep the material in private warehouse at its own cost. The petitioner, accordingly, had kept the materials in the godowns at its own expense. It is submitted that the State cannot resile from the statement made by the Advocate General during the course of the proceedings and in support of his submission, the learned senior counsel places reliance on the judgment of the Supreme Court in the case of Periyar & Pareekanni Rubbers Ltd. v. State of Kerala, (1991) 4 SCC 195 . 14. Mr. Doloi, learned Additional Advocate General, Assam has submitted that the petitioner had failed to supply some materials within the stipulated period of 45 days time and, therefore, the State has got no obligation under the terms of the agreement to accept the materials beyond the stipulated period of 45 days. It is further submitted that the Scheme under which the tender was issued for supply of yam is no longer in existence and, therefore, presently there is no budget allocation in respect of such Scheme. It is submitted that there is no materials on record to indicate that the Advocate General was instructed to submit as he did as recorded in the order of this court dated 18.3.2016 and, therefore, such statement made by the Advocate General cannot bind the State. 15. Mr. B. Gogoi, learned standing counsel, Finance Department has abided by the stand taken in the affidavit. 16. Much argument is advanced by the learned counsel for the parties with regard to the date on which the stipulated period of 45 days will expire from the date of Supply Order. While the petitioner contends that 45 days will expire on 5.4.2016, the stand of the respondents is that it expired on 4.4.2016. 16. Much argument is advanced by the learned counsel for the parties with regard to the date on which the stipulated period of 45 days will expire from the date of Supply Order. While the petitioner contends that 45 days will expire on 5.4.2016, the stand of the respondents is that it expired on 4.4.2016. Clause 15.1(a) of the Tender document, which deals with delayed supply, is reproduced below for better appreciation: “15.1 Delayed supply : (a) If the Bidder fails to supply the quantity as per supply schedule or if the bidder fails to complete the supply works within 45 days from the date of issue of supply order, then the supply order for balance quantity is liable for cancellation and forfeiture of pro rata security deposit and the competent authority shall have the liberty to place order for supply to any eligible bidder for any quantity.” 17. In the aforesaid context, clause 11.6 of the Bid Document is also required to be reproduced and the same reads as follows: “11.6 The supply order will have to be carried out and completed within 45 days from the date of issue of supply order as per schedule of supply, failing which the competent authority shall have the liberty to place order for supply to any tenderer for any quantity.” 18. Section 9 of the GC Act, 1897 reads as follows: “9. Commencement and termination of time. — (1) In any Central Act or regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word ‘from’ and, for the purpose of including the last in a series of days or any other period of time, to use the word ‘to’.” 19. While explaining section 9 of the GC Act, the Supreme Court in Tarun Prasad Chattarjee (supra) observed that when a period is delimited by a statute or rule, which has both a beginning and an end and the word from is used indicating the beginning, the opening day is to be excluded and if the last day is to be excluded the word to is to be used. The Supreme Court also held that in the context of section 81 of the Representation of the People Act, 1951 (‘1951 Act’), the words from and within do not express any contrary intern. The question that had arisen for consideration in the aforesaid case was as to whether in computing the period of limitation, as provided in section 81 of the 1951 Act, the date of election of the returned candidate should be excluded or not and also as to whether election petition was filed within time from the date of election of the returned candidate. The date of election of the returned candidate was 28.11.1998 and election petition was filed on 12.1.1999. By excluding the first day for computing the period of limitation, the Supreme Court held that the election petition was filed in time, i.e., within 45 days from the date of the election. 20. In Halsbury's Laws of England, 37th Edition, Volume-3, Page-92, it is stated as follows: “Days included or excluded — When a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last-mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as ‘from such a day’ or ‘until such a day’ are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day.” 21. The Supply Order dated 20.1.2016 provides for supply of the materials within 45 days from the date of issue of the Supply Order. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day.” 21. The Supply Order dated 20.1.2016 provides for supply of the materials within 45 days from the date of issue of the Supply Order. Clause 15.1(a) provides that in case of failure to complete the supply work within 45 days from the date of issue of the Supply Order, the Supply Order for balance quantity will be liable for cancellation and forfeiture of product security deposit and the competent authority shall have the liberty to place order for supply to any eligible bidder for any quantity. Clause 15.1.4 of the Deed of Agreement provides that the petitioner, who was the 2nd Party therein, is to carry out and complete supply within 45 days from the date of issue of the supply order, failing which the competent authority shall have the authority to place the order for supply to any tenderer/bidder for any quantity. Clause 11.6 provides that Supply Order will have to be carried out and completed within 45 days from the date of issue of Supply Order as per schedule of supply, failing which the competent authority shall have to liberty to place order for supply to any tenderer for any quantity. Clause 16.7(i) provides that the Director of Handloom and Textiles, Assam, Guwahati has the right to terminate the supply order/contract without any notice if the successful bidder fails to supply the ordered quantity within the stipulated time and that the tender committee may also consider black listing of the bidder. At this juncture, it may be put on record that it is not the stand of the State respondents that the Supply Order for balance quantity was cancelled. 22. Section 9 of the GC Act, stricto sensu, cannot be applied to a contract arrived at in between the parties. As a general rule, as indicated in the Halsbury's Laws of England, while defining a period the first day is excluded. Thus, it seems that the principle of section 9 of the G.C. Act is also the general rule in the context of a contract and, therefore, first day has to be excluded while determining a period. Viewed in that context, the supply was to be completed by the petitioner on 5.3.2016. Thus, it seems that the principle of section 9 of the G.C. Act is also the general rule in the context of a contract and, therefore, first day has to be excluded while determining a period. Viewed in that context, the supply was to be completed by the petitioner on 5.3.2016. Accordingly, this court is of the considered opinion that the stand taken before the court that the respondents are not obliged to accept the materials, which were supplied after office hours on 4.3.2016, is not tenable in law. 23. There is another facet of the case, which is the statement made by the learned Advocate General, Assam as reflected in the order dated 18.3.2016. It will be appropriate to extract hereinbelow the relevant portion of the order dated 18.3.2016. The same reads as follows: “M1. A.C. Buragohain, the learned Advocate General, Assam submits that these Yams are intended for distribution amongst the poor section of the society and the Government has no objection to receive the supply once the poll process is over in Assam and in the interregnum, the goods can be kept in a private warehouse, arranged by the supplier at their cost.” Thus, it is manifest that the learned Advocate General, Assam had categorically stated that the Government will have no objection to receive the supply once the poll process was over. 24. The stand taken by the learned Advocate General would indicate that because of Code of Conduct for the ensuing election to the Assam Legislative Assembly, 2016 having come into play, there was difficulty in accepting the materials. No argument was advanced that supply had not been effected within a period of 45 days in terms of the supply order and on the contrary, an unequivocal stand was taken that after the poll process is over, supply will be accepted and received. In view of the above categorical stand of the learned Advocate General, even if it is held for argument sake that the 45 days expired on 4.3.2016, such non-delivery beyond 4.3.2016 loses its consequences. 25. In the case of Periyar & Pareekanni Rubbers Ltd. (supra), the Supreme Court had occasion to consider a concession made by the learned Advocate General on behalf of the State. 25. In the case of Periyar & Pareekanni Rubbers Ltd. (supra), the Supreme Court had occasion to consider a concession made by the learned Advocate General on behalf of the State. It is held that any concession made by the Government Pleader in the High Court cannot bind the Government unless it is in writing on instructions from the responsible officer as it is unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State. At the same time, it was held that the same yardstick cannot be applied when the learned Advocate General makes a statement across the bar since the learned Advocate General makes a statement with all responsibility. The Supreme Court had held that the High Court was not justified in not taking into account the concession made by the learned Advocate General. The aforesaid judgment illustrates that a submission and/or concession made by the learned Advocate General binds the State. 26. In view of the above discussion, I am of the considered opinion that the State cannot take a stand contrary to the stand taken by the learned Advocate General, as recorded in the order of the court dated 18.3.2016 passed in WP(C) No. 1853/2013. It is a well settled principle of law that statements of fact as to what transpired at the hearing and recorded in the order of the court are conclusive of the facts so stated and no one can contradict such statements by affidavit. 27. There was an order dated 18.3.2016 not to divert the amount of Rs. 50 crores sanctioned for procurement of yarn under the Chief Minister's Special Programme for the year 2015-16 and, therefore, even if currently the aforesaid Programme is not in force, the same will not have any bearing in the outcome of these cases. 28. It is on record that the steps were taken by the respondents for payment of an amount of Rs. 28,47,29,028.50 to the petitioner. The said amount shall be paid within a period of 3 months. The respondents are also directed to receive the balance quantity of yam. 28. It is on record that the steps were taken by the respondents for payment of an amount of Rs. 28,47,29,028.50 to the petitioner. The said amount shall be paid within a period of 3 months. The respondents are also directed to receive the balance quantity of yam. However, as the yam is lying in different godowns and as some yam had also been sent back to the factory at Gujarat, petitioner is directed to file a representation before the Additional Chief Secretary to the Government of Assam, Handloom, Textiles and Sericulture Department along with a copy of this order for a fresh delivery schedule and within a period of 3 weeks from the date of receipt of such representation, the Additional Chief Secretary to the Government of Assam, Handloom, Textiles and Sericulture Department will inform the petitioner the fresh delivery schedule. It goes without saying that before acceptance of the materials, the respondents will be at liberty to inspect the yam sent for delivery. 29. The writ petitions stand disposed of in terms of the above directions and observations. No cost.