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2018 DIGILAW 164 (GAU)

BHASKAR KIRAN v. UNION OF INDIA

2018-01-30

SUMAN SHYAM

body2018
JUDGMENT & ORDER : 1. Heard Mr. N. Dutta, learned Sr. counsel appearing for the writ petitioner. Also heard Mr. S.C. Keyal, learned ASGI appearing on behalf of the respondents. 2. The facts of this case lie in a narrow campus and may be noticed as follows. The writ petitioner is an empanelled producer for undertaking commissioned programmes in the Doordarshan Kendra. Pursuant to an advertisement notice inviting Expression of Interest (EOI) for production of programme from the empanelled producers under the Northeast Special Package (Revenue Plan) for the year 2010-11, the writ petitioner had submitted his proposal for the commissioned programme entitled "Kailash Nath" in Assamese in the category of fiction, consisting of 04 episodes, each of the duration of 22 minutes and 30 seconds. The offer made by the petitioner was accepted by the authorities where-after, by the letter dated 01-06-2011 the petitioner was informed about the decision of the authorities to accept his offer. 3. The letter dated 01-06-2011 contained the terms and conditions which the petitioner would have to fulfill. As per Clause- (b) of the terms and condition contained in the letter dated 01-06-2011, the writ petitioner would have to furnish 100% irrevocable bank guarantee from scheduled/ nationalized/ public sector bank for release of 50% advance payment of total budget sanction. Be it mention herein that for the programme sought to be produced by the petitioner, the amount per episode was fixed at Rs. 2,20,000/- making the total amount due and payable as Rs. 8,80,000/-. 4. The writ petitioner had produced total 04 episodes of the serial "Kailash Nath" by obtaining financial assistance from private sources without availing the 50% advance payment from the respondents but when the episodes were submitted before the respondent authorities, they refused to accept the same on the ground that the writ petitioner, having carried out the shooting of the programme without availing the 50% advance by depositing 100% irrevocable bank guarantee as per the condition No. (b) contained in the letter dated 01-06-2011, had violated the terms and condition of the work order. 5. The respondents have filed counter affidavit disclosing the reason as to why the programme of the writ petitioner could not be commissioned. 5. The respondents have filed counter affidavit disclosing the reason as to why the programme of the writ petitioner could not be commissioned. From a perusal of the averments made in the affidavit, it is apparent that the only ground on which the petitioners production was declined by the respondent is that he did not availed the 50% advance by submitting the irrevocable bank guarantee. 6. Clause- (b) of the letter dated 01-06-2011 would be relevant for the purpose of adjudicating the contentious issue involved in this writ petition and therefore, the same is reproduced herein below: "(b) 50% advance payment of the total budget sanction will be released against submission of 100% irrevocable Bank Guarantee from the Scheduled/ Nationalized/ Public Sector Bank and after receipt of confirmation of the concerned Bank. The Validity period of Bank Guarantee will be 6 (six) months beyond the period specified below for submission of the final Programme. The Bank Guarantee will be received from the concerned Bank only. No Bank Guarantee will be received from the Producer by hand. The agreement should be signed on or before 15-06- 2011 and the last date of receipt of Bank Guarantee is 21-06-2011. A plain reading of the aforesaid condition goes to show that the petitioner had the option to avail 50% advance payment of the total budget subject to furnishing 100% irrevocable bank guarantee from a scheduled/ nationalized/ public sector bank. There is, however, no condition contained in the said letter or else-where providing that the petitioner would be bound to avail the 50% advance for the purpose of production of the programme. 7. Mr. Keyal, learned ASGI submits that there is no dispute as to the quality of the programme or completion time of the same but the sole ground on which the petitioners programme has been rejected is on account of contravention of Clause-b of the letter dated 01- 06-2011. Mr. Keyal further contends that 79 out of the 80 short listed producers have complied with Clause-b of the letter dated 01-06-2011 and there is no justifiable ground for the petitioner to deviate therefrom. Since it is a clear case of violation of the condition No. (b) imposed by the Doordarshan, according to Mr. Keyal, petitioners production cannot be accepted by the respondents and to that extent the petitioner does not have any right that can be enforced in this writ petition. 8. Since it is a clear case of violation of the condition No. (b) imposed by the Doordarshan, according to Mr. Keyal, petitioners production cannot be accepted by the respondents and to that extent the petitioner does not have any right that can be enforced in this writ petition. 8. Mr. Dutta, learned Sr. counsel appearing for the petitioner has, however, vehemently argued that the petitioner was entitled to proceed with the production with the help of resources from his private sources inasmuch as the cash component that is required to obtain a bank guarantee from a nationalized bank was not readily available with the writ petitioner. The learned Sr. counsel further contends that most of the production work had been executed by the petitioner by availing credit on the basis of personal goodwill, as a result of which, there was no necessity for him to seek advance payment from the respondent authorities. 9. I have considered the submission made by the learned counsel for the parties and have also examined the materials available on record. As noted above the respondents have declined to accept the petitioners programme relying upon the Clause-b of the letter dated 01-06-2011 but after hearing the learned counsel for the parties, I am of the view that the said clause does not in any way impose any condition upon the petitioner to compulsorily avail the 50% advance for his production activities. Rather, this Court is of the opinion that the same was an option available to the petitioner, which he choose not to avail, which he was entitled to under the contract. Therefore, in the absence of any mandatory condition providing that the petitioner was bound to avail the advance payment, the mere fact that other producers have availed the benefit of advance payment under Clause-b cannot be a ground to forfeit the petitioners production. This Court fails to appreciate as to how the petitioner has violated the condition of the work order by completing his production without availing the advance amount from the Doordarshan. 10. Under the circumstances, I am of the view that the stand of the respondent authorities are completely arbitrary and irrational and does not merit acceptance by this Court. Consequently, this writ petition must succeed and is hereby allowed. 11. 10. Under the circumstances, I am of the view that the stand of the respondent authorities are completely arbitrary and irrational and does not merit acceptance by this Court. Consequently, this writ petition must succeed and is hereby allowed. 11. Respondents are directed to forthwith accept the production of the petitioner entitled "Kailash Nath" and release the payment of the amount of Rs. 8,80,000/-. If the said amount is not released within a period of one month from the date of receipt of the certified copy of this order, the amount would carry interest @ 12% per annum with effect from the date of this order until realization. 12. Writ petition is accordingly disposed of. There would be no order as to cost.