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2020 DIGILAW 116 (GAU)

Lemka Pharmacy v. State Of Nagaland

2020-02-03

NELSON SAILO

body2020
JUDGMENT 1. Heard Mr. Tongpok Pongener, learned counsel appearing for the petitioner in both the writ petitions. Also heard Mr. K. Wotsa, learned Sr. Government Advocate appearing for respondent Nos. 1 to 3 and Mr. N. Mozhui, learned Standing counsel, National Health Mission, Nagaland appearing for respondent No.4. 2. Since the issue involved in the 2 writ petitions are similar, they are being disposed of by this common judgment and order. For the sake of brevity the facts involved in respect of W.P.(C) 28/2019 is being narrated. 3. The petitioner who claims to be a registered Pharmacy was given supply order for procurement of Drugs and Consumables under the JSSK (MH) by the Mission Director, NHM Nagaland (respondent No.4) vide supply order dated 19/12/2017. Items to be supplied was listed in the enclosed Annexures 1 and 2 amounting to Rs.75,82,300/- (Rupees Seventy five thousand eighty two thousand three hundred). The Drugs and Consumables were to be supplied within a period of 60 days from the date of issue of the supply order. 4. According to the petitioner, after receiving the supply order, the required materials were procured and the petitioner proceeded from Dimapur to Kohima to deliver it to the Department on 30/01/2018. However, the Mission Director informed the petitioner that owing to lack of sufficient storage space, the Department sought for allotment of some rooms for storage of Drugs and Consumables from the PWD and PHED and as such, asked the petitioner to wait for a few days to deliver the supply items. The petitioner therefore, took back the truck load of supply items back to Dimapur and was also compelled to take on rent a special room for storing the Drugs and Consumables pending further instruction from the Mission Director. 5. While the petitioner was waiting further instructions, the respondent No.4 to the surprise of the petitioner issued the impugned circular dated 06/02/2018 informing all Contractors and Suppliers of various items/equipments for which orders have been placed and were yet to be supplied to put on hold the supplies till such time fund for the same was released by the Government of India and credited to NHM account. Thereafter, while the petitioner was waiting for further instruction to deliver the Drugs and Consumables in terms of the supply order, the respondent No.4 to the surprise of the petitioner vide the impugned communication dated 12/09/2018 cancelled the supply order dated 19/12/2017. In the impugned cancellation order, the grounds for cancellation of the supply order was that it was due to the failure on the part of the petitioner to supply the items within the stipulated period. Aggrieved with the said order the petitioner submitted a representation before the respondent No.4 on 20/12/2018 requesting the said authority to cancel the impugned cancellation notice dated 12/09/2018 and to allow the petitioner to deliver the medicine without further delay. However, the respondent No.4 neither considered the representation nor disposed of the same and the petitioner therefore being highly aggrieved is before this Court. 6. Mr. Tongpok Pongener, learned counsel for the petitioner submits that the impugned circular dated 06/02/2018 and the impugned cancellation notice dated 12/09/2018 cannot be sustained in law and they have been issued most arbitrarily by the respondent authorities concerned and further it lacks the application of mind. The learned counsel also submits that there is gross violation of the principles of natural justice. 7. Referring to the affidavit-in-opposition filed by the respondent No.4, the learned counsel submits that according to the said respondent, one of the reason for cancellation of the supply order is due to the fact that there was enough stock of Drugs and Consumables under JSSK (MH) with the NHM since a supply order had been issued to a firm earlier on 19/04/2017. Mr. Tongpok submits that on the other hand, the reason given in the impugned cancellation notice was due to the failure on the part of the petitioner to supply Drugs and Consumables within the time specified in the supply order. Therefore, the stand of the respondent No.4 in the affidavit-in-opposition is only contradictory and appears to be an after thought. He submits that the further contention of respondent No.4 that the cancellation of the supply order was also due to non release of the approved fund under the JSSK (MH) also cannot be accepted inasmuch as the same has not been reflected in the impugned order i.e. the cancellation notice dated 12/09/2018. He submits that the further contention of respondent No.4 that the cancellation of the supply order was also due to non release of the approved fund under the JSSK (MH) also cannot be accepted inasmuch as the same has not been reflected in the impugned order i.e. the cancellation notice dated 12/09/2018. In this connection, the learned counsel relies upon the decision of the Apex Court rendered in Mohinder Singh Gill vs Chief Election Commissioner, (1978) 1 SCC 405 which was further relied upon by the Apex Court in Rashmi Metaliks Limited and Another vs Kolkota Metropolitan Development Authority and Others, (2013) 10 SCC 95 . He submits that the Apex Court has clearly held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of an affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. He therefore submits that the ratio laid down by the Apex Court squarely applies to the present case and the respondents cannot be allowed to improve their stand by coming up with further justification of the impugned supply cancellation notice by filing affidavit-in-opposition. Under the circumstances, the learned counsel submits that Court may interfere in the matter and pass appropriate orders. 8. Mr. N. Mozhui, learned counsel for the respondent No.4 submits that the writ petition is not maintainable on the ground of delay and laches and on account of the petitioner having made misleading statements. Referring to the affidavit-in-opposition filed by the respondent No.4 on 22/08/2019, the learned counsel submits that the cancellation notice was issued on 12/09/2018 whereas, the petitioner submitted a representation only on 20/12/2018 after more than 3 months. Thereafter, the petitioner filed the writ petition after a period of about 3 months i.e. in the month of March 2019. There is no explanation from the petitioner as to why the writ petition was filed after about 6 months from the date of issuance of the cancellation notice. Therefore, under the circumstances the writ petitions are liable to be dismissed on this ground alone. 9. Mr. There is no explanation from the petitioner as to why the writ petition was filed after about 6 months from the date of issuance of the cancellation notice. Therefore, under the circumstances the writ petitions are liable to be dismissed on this ground alone. 9. Mr. N. Mozhui, learned counsel further submits that although the petitioner claimed to have approach the respondent No.4 or his office for delivery of the Drugs on 30/01/2018, in fact the petitioner did not approach the respondent authorities at any point of time to deliver the Drugs and Consumables. He submits that at any rate the petitioner is not supposed to approach the respondent No.4 directly for delivery of the goods since there are responsible persons such as the Storekeeper and Store in-charge of the NHM, Kohima to take delivery of the supply goods. In fact the 2 officials have given a certificate which is to the effect that neither the petitioner nor its representative did not approach the NHM office for delivery of Drugs and Consumables at any point of time. Therefore, the two writ petitions not being maintainable on the two (2) preliminary grounds, they may be rejected and dismissed. 10. Mr. N. Mozhui, learned counsel further submits that contention of the petitioner that delivery of Drugs and Consumables was not taken on 30/01/2018 owing to lack of storage space in the Department is most unbelievable and totally unacceptable. He submits that even assuming that the petitioner purchased the drugs and consumables as contended, the petitioner has not produced any documentary evidence such as purchase challan, cash memos etc in support of the claim. He further submits that during the relevant time, the respondent Department had already issued a supply order on 19/04/2017 and there was enough stock available with the Department. Further, non release of approved amount by the Government of India under the JSSK (MH) was also another factor for issuing the impugned circular dated 6/2/2018./ He submits that under the facts and circumstances, there is no cause of action against the respondents and the writ petitions may be dismissed. 11. Mr. K. Wotsa the learned State counsel submits that although the respondent Nos. 1, 2 and 3 have not filed a separate affidavit, he relies upon the affidavit of the respondent No.4 and adopts the arguments of Mr. N. Mozhui. 12. 11. Mr. K. Wotsa the learned State counsel submits that although the respondent Nos. 1, 2 and 3 have not filed a separate affidavit, he relies upon the affidavit of the respondent No.4 and adopts the arguments of Mr. N. Mozhui. 12. I have heard the submissions of the learned counsel for the parties and I have perused the materials available on record. 13. As may be seen, the grievance of the petitioner is that two (2) separate supply orders for supply of Drugs and Consumables was given in its favour by the respondent No.4 but when the petitioner went to deliver the Drugs and Consumables on 30/01/2018, delivery of the same was not accepted by the concerned Department on the ground that there was no storage space available and that delivery would be taken later on and so the petitioner was asked to wait for a few days to deliver the supply items. This averment is made by the petitioner at paragraph 3 of the writ petition. However, the respondent No.4 in response to the said averment has denied the statement in toto at paragraph 5 of the affidavit-in-opposition dated 22/08/2019. Also in support of the statements, the respondent No.4 has also enclosed 2 certificates both dated 23/04/2019 given by the Storekeeper and Store in-charge of NHM, Kohima. Therefore, it is clear that there are disputed questions of fact involved. The learned counsel for the petitioner no doubt is correct in submitting that the respondents cannot improve their stand by filing an affidavit-in-opposition to supplement what is already mentioned in the impugned cancellation notice. Further, the petitioners counsel is also correct to submit that the principles of natural justice has been violated due to non issuance of any prior notice before cancellation of the supply order. However, what cannot be ignored is that the petitioner although having claimed to have taken the supplies for delivery at Kohima from Dimapur on 30/01/2018, the respondent No.4 has categorically denied the same. Therefore, as there is clearly disputed questions of fact involved, this Court is of the considered view that the grievance of the petitioner cannot be adjudicated under the writ jurisdiction of this Court. Having come to such a finding, both the writ petitions are dismissed. However, dismissal of the writ petitions will not debar the petitioner from claiming appropriate relief before a competent forum. 14. Having come to such a finding, both the writ petitions are dismissed. However, dismissal of the writ petitions will not debar the petitioner from claiming appropriate relief before a competent forum. 14. Under the facts and circumstances there will be no order as to cost.