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2022 DIGILAW 534 (GAU)

Rose Enterprise v. State of Assam

2022-05-24

MANISH CHOUDHURY

body2022
JUDGMENT : MANISH CHOUDHURY, J. 1. Heard Mr. P.K. Deka, learned counsel for the petitioner; Mr. A. Chaliha, learned Standing Counsel, Finance Department for the respondent no. 1; Mr. N.K. Deb Nath, learned Standing Counsel, Panchayat & Rural Development Department for the respondent nos. 2, 3 & 5; and Ms. R.B. Borah, learned Standing Counsel, Bodoland Territorial Council [BTC] for the respondent nos. 4, 6, 7, 8 & 9. 2. By invoking the extraordinary and discretionary jurisdiction of this Court under Article 226 of India, the petitioner has instituted this writ petition seeking inter alia a direction to the respondent authorities to release an amount of Rs. 96,03,111 which, according to the petitioner, is an outstanding liability against the supply orders executed by him for the respondent authorities in the BTC under various scheme of the MGNREGA during the years: 2014-2015 and 2015- 2016. 3. It is the case of the petitioner that the petitioner is a registered contractor dealing in sand, gravel, stone and other materials. The petitioner has claimed that the respondent no. 9 had issued a number of supply orders on 06.07.2015, 08.07.2015, 02.11.2015, 06.11.2015, 02.01.2016 and 13.01.2016 in its favour and thereby, asked the petitioner to supply materials of different kinds in respect of a total 66 nos. of schemes under the MGNREGA. According to the petitioner, the total value of the entire supply orders was Rs. 1,10,00,800.20. In all the supply orders, the respondent no. 9 mentioned that the supply of materials should be completed within the stipulated period of time mentioned therein in the respective supply orders and the payment would be made through Fund Transfer Orders [F.T.Os], subject to availability of fund from the Government under the MGNREGA materials for the year 2015-2016. The petitioner was asked to submit his bills in duplicate at the office of the respondent no. 9 along with the respective receipt copy of materials from the concerned Junior Engineer [J.E.]/ Accredited Engineer [A.E.] for payment. It is the further case of the petitioner that upon receipt of supply orders issued by the respondent no. 9 from time to time, he had supplied all the materials as per the supply orders to the satisfaction of the respondent authorities and after completion of the supplies, the petitioner had submitted the final bills in duplicate in respect of 62 nos. of schemes to the respondent no. 9 from time to time, he had supplied all the materials as per the supply orders to the satisfaction of the respondent authorities and after completion of the supplies, the petitioner had submitted the final bills in duplicate in respect of 62 nos. of schemes to the respondent no. 9 along with the receipt copies of materials collected from the concerned Junior Engineer [J.E.]/Accredited Engineer [A.E.]. Thereafter on 19.07.2016, the respondent no. 9 wrote to the respondent no. 8 regarding generation of FTOs in connection with supply of materials made by the petitioner under the MGNREGA for the years : 2014 - 2015 and 2015 - 2016. By the said letter, the respondent no. 9 intimated the respondent no. 8 that the payment should be made as per the availability of fund released from the end of the Government. In a statement enclosed with the letter dated 19.07.2016, the respondent no. 9 had mentioned the respective FTO number and the respective amount required to be released in favour of the petitioner against 62 nos. of schemes. The petitioner has averred that the respondent authorities had made payment in respect of 4 [four] nos. of schemes out of those 62 nos. of schemes by crediting an amount of Rs. 8,96,824.20, in the account of the petitioner claiming that an amount of Rs. 96,03,111 is still to be released by the respondent authorities in the BTC in respect of the remaining 58 nos. of schemes, under the MGNREGA. The petitioner with the above grievance, has approached this Court seeking the direction, mentioned above. In order to buttress his claim, the petitioner has made mention of a letter dated 22.11.2017 issued by the respondent no. 3 whereby an amount of Rs. 28,25,000/- was allocated to Debitola Development Block, the Development Block where the petitioner made the supplies in terms of the supply orders. 4. The respondent nos. 4, 6, 7, 8 & 9 have filed a common affidavit in the writ petition, traversing the contentions made in the writ petition. It has been asserted that the then Block Development Officer, Debitola Development Block [the respondent no. 9] viz. Sri. R.R. Ahmed and the then Accountant of Debitola Development Block were responsible for generating Fund Transfer Orders [FTOs] without any authorization in favour of the petitioner when no fund was made available against the supply orders allocated to the petitioner. It has been asserted that the then Block Development Officer, Debitola Development Block [the respondent no. 9] viz. Sri. R.R. Ahmed and the then Accountant of Debitola Development Block were responsible for generating Fund Transfer Orders [FTOs] without any authorization in favour of the petitioner when no fund was made available against the supply orders allocated to the petitioner. It has been asserted that Sri R.R. Ahmed, the then Block Development Officer, Debitola Development Block without taking any feasibility report, generated a huge amount of liabilities through Fund Transfer Orders [FTOs] and he did not make any contract between the vendor and the office of the Block Development Officer, Debitola Development Block. It is also claimed that Sri. R.R. Ahmed, the then Block Development Officer, Debitola Development Block and the then Accountant of the said office by keeping all in dark generated the FTOs in favour of the petitioner due to which no documents could be found available in the office records files. It has been stated that since Sri. R.R. Ahmed, the then Block Development Officer and the then Accountant, Debitola Development Block were involved in financial irregularities, the respondent BTC authorities are not liable to make any payment against the supply orders. It is contended that there is no question of disbursement of any outstanding liability by the respondent BTC authorities with regard to the liability incurred by the erring officials who had committed financial irregularities at their personal capacities. With such assertions, the respondent authorities in the BTC have asserted that the petitioner is not entitled to the payment, as claimed in the petition. 5. Mr. Deka, learned counsel for the petitioner has submitted that the petitioner had executed all the supply orders and as such, the petitioner is entitled to be disbursed the amount of Rs. 96,03,111 in respect of the remaining 62 nos. of schemes under the MGNREGA in respect of which the final bills submitted by the petitioner had been duly acknowledged by the respondent authorities in the BTC. With regard to the maintainability of the writ petition under Article 226 of the Constitution of India in respect of a money claim, Mr. 96,03,111 in respect of the remaining 62 nos. of schemes under the MGNREGA in respect of which the final bills submitted by the petitioner had been duly acknowledged by the respondent authorities in the BTC. With regard to the maintainability of the writ petition under Article 226 of the Constitution of India in respect of a money claim, Mr. Deka, learned counsel for the petitioner has referred to two decisions of the Hon’ble Supreme Court of India in Civil Appeal No. 317/2021 [UNITECH Limited and others vs. Telangana State Industrial Infrastructure Corporation and others], decided on 17.02.2021, and Uttar Pradesh Power Transmission Corporation Limited and another vs. CG Power and Industrial Solutions Limited and another, reported in [2021] 6 SCC 15. 6. Per contra, the learned counsel for the respondents have, in unison, submitted that since the writ petition involves disputed questions of facts which would require determination with the leading of evidence by the parties, the prayer made in this writ petition cannot be allowed. 7. The respective contentions of the petitioner and the respondent authorities in the BTC have given rise to a number of questions of facts, more particularly, in view of the fact that there is denial of liability by the competent authority by filing a counter affidavit. Some of the issues that would require determination are [a] whether the respondent no. 9 who issued the supply orders in the favour of the petitioner, had the authority, delegated or otherwise, to do so?; [b] whether the petitioner had executed the supply orders?; [c] whether the offices of the respondent authorities in the BTC had no records about the supply orders; [d] whether there were financial irregularities in generating the Fund Transfer Orders [FTOs]?; etc. There could be many other issues. As there have arisen many disputed questions of facts, the Court is of the considered view that the materials brought on record by the parties would not be sufficient for this Court to reach findings on many of the disputed questions involved here. 8. It has been settled by a long line of decisions that the jurisdiction of the High Court under Article 226 of the Constitution of India is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. 8. It has been settled by a long line of decisions that the jurisdiction of the High Court under Article 226 of the Constitution of India is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Article. But the exercise of the jurisdiction is discretionary and it is not to be exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will be exercised subject to certain self imposed limitations. It is also settled that the High Court is not deprived of its jurisdiction to entertain a writ petition under Article 226 of the Constitution merely because in order to consider the right of the petitioner to be granted the relief sought for questions of facts are to be determined. In a writ petition under Article 226 of the Constitution, the High Court has jurisdiction to try issues both of fact and law. In the process, the Court has to consider as to what facts are in dispute and what facts are not in dispute and such a stage comes after the exchange of pleadings in the form of affidavits amongst the parties is complete. A writ petition is ordinarily decided on the basis of affidavits. A lis arising out of contractual matter is also not beyond the purview of the judicial review though such purview is limited and the discretionary writ jurisdiction in such matters is to be exercised on sound and firm judicial principles. When a writ petition raises disputed questions of fact and for determination of those, leading of evidence by the parties, would be necessary then it may not be convenient to decide such disputes in a proceeding under Article 226 of the Constitution and then in such a case, the Court may decline to try a writ petition. Though no authority is required to be cited for such settled propositions of law, the decisions of the Hon’ble Supreme Court of India in Gunwant Kaur vs. Municipal Committee Bhatinda, [1969] 3 SCC 769; Noble Resources Ltd. vs. State of Orissa and another, [2006] 10 SCC 236 and State of Kerala and others vs. M.K. Jose, [2015] 9 SCC 433 can be referred to as references. It is also settled, as has been observed by a Constitution Bench of the Hon’ble Supreme Court of India in Thansingh Nathmal vs. The Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419 , that the High Court in its jurisdiction under Article 226 of the Constitution does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. 9. In UNITECH Limited [supra], the original writ petition under Article 226 of the Constitution of India was instituted before the High Court for the State of Telengana by the petitioner therein viz. UNITECH Limited seeking a refund of Rs. 165 Crores together with interest from the date of payment. A learned Single Judge of the High Court allowed the writ petition filed by the UNITECH Limited. When a writ appeal was preferred by the respondent Telangana State Industrial Infrastructure Corporation [TSIIC] and the State of Telangana, the appellate bench of the High Court upheld the order of the learned Single Judge on the liability of TSIIC to refund an amount of Rs. 165 Crores but such refund of the principal sum of Rs. 165 Crores was directed with interest from 14.10.2015 at SBI prime lending rate, as opposed to the dates of payments of installments, beginning from September, 2007. Aggrieved by the judgment of the Division Bench, the civil appeal was preferred before the Hon’ble Supreme Court of India by UNITECH Limited. There was no dispute to the fact that the petitioner UNITECH Limited deposited an amount of Rs. 165 Crores: Rs. 140 Crores towards the cost of land, Rs. 20 Crores towards earnest money deposit and Rs. 5 Crores towards project development expenses after a Letter of Award issued by the then Andhra Pradesh Industrial Infrastructure Corporation Ltd. in favour of UNITECH Limited to develop, design and construct an integrated township project / multi services aerospace park in an area of about 350 acres of land. The question arose in UNITECH Limited [supra] was whether the petitioner UNITECH Limited was entitled to get the refund of Rs. 165 Crore along with interest and if so, what should be the date from which the interest should be paid. The question arose in UNITECH Limited [supra] was whether the petitioner UNITECH Limited was entitled to get the refund of Rs. 165 Crore along with interest and if so, what should be the date from which the interest should be paid. It is in the said context, the Hon’ble Supreme Court of India has made the analysis regarding maintainability of the writ petition under Article 226 of the Constitution of India in paragraph nos. 32 & 33 to which the learned counsel for the petitioner has harped upon to draw support for his case. Unlike the case in UNITECH Limited [supra], the case in hand does not involve any admitted liability on the part of the respondent authorities. 10. The question involved in the case of Uttar Pradesh Power Transmission Corporation Limited [supra] was whether the appellant, Uttar Pradesh Power Transmission Corporation Limited was entitled to collect building cess from the contractor CG Power and Industrial Solutions Limited in respect of a contract executed between them. After analysis of the provisions of Building and Other Construction Workers’ Welfare Cess Act, 1996 [‘the Cess Act’, for short], the Hon’ble Supreme Court of India has observed that the appellant had no power and authority and/or jurisdiction to realise labour cess under the Cess Act by withholding dues in respect of other contracts in the manner it had collected and deducted cess from the contractual dues of the respondent. The Hon’ble Supreme Court of India has observed that the respondent did not commit any breach or default in performance of its contractual liabilities rendering it liable for any damages, costs or expenses. The concerned respondent duly discharged its obligations and accordingly, all payments due to it were cleared. The Hon’ble Supreme Court of India has reached a finding that the terms and conditions of the contract entered between the appellant and the respondent contractor did not enable the appellant to withhold payments or to realise cess by revocation. It is in that context, the writ petition instituted by the respondent contractor was held to be maintainable. The decision in Uttar Pradesh Power Transmission Corporation Limited [supra] is found to be of no assistance to the case of the petitioner. 11. A full bench of this Court in Writ Appeal No. 484/2005 [Tamsher Ali and Ors. It is in that context, the writ petition instituted by the respondent contractor was held to be maintainable. The decision in Uttar Pradesh Power Transmission Corporation Limited [supra] is found to be of no assistance to the case of the petitioner. 11. A full bench of this Court in Writ Appeal No. 484/2005 [Tamsher Ali and Ors. vs. State of Assam and Ors.] and similar other 194 writ petitions reported in 2008 [4] GLT 1 [FB], has observed that a writ petition involving contractual liability can be considered only in the event there is admission of liability certified by the respective Chief Engineer in the Works Department and in respect of other departments by the respective Head of the Departments. As it is noted above, there is no admission of liability by the concerned Head of the Department in the case in hand. 12. Having regard to the scope and ambit of the power of judicial review in a case involving disputed questions of facts, this Court is of the considered view that the present one is such a case which would require determination of several disputed questions of facts through both oral and documentary evidence with examination of witnesses by the parties in a full-fledged trial and the present writ proceeding is found to be not the proper and appropriate proceeding. In such view of the matter, this Court is of the considered view that the disputes involved in the writ petition, as mentioned above, cannot be decided in writ proceedings. As a corollary, the writ petition is not entertained. It is, however, observed that non-entertainment of the writ petition may not preclude the petitioner to resort to any other remedy as may be permitted under the law. There shall be no order as to cost.