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2023 DIGILAW 453 (JHR)

Gopal Prasad Mahanty v. state of Jharkhand

2023-03-29

ANANDA SEN, SANJAYA KUMAR MISHRA

body2023
ORDER : (Ananda Sen, J.) 1. This intra-court appeal under Clause 10 of the Letters Patent has been filed by the appellants-writ petitioners challenging the order dated 11.8.2021 passed in W.P.(C) No. 3002 of 2002, whereby, the learned Single Judge has held that the dispute being contractual in nature, writ petition under Article 226 of the Constitution of India is not entertainable. However, liberty was granted to the petitioner to take appropriate recourse for enforcing the terms and conditions of the agreement and for payment of the alleged dues, if permissible under law. 2. The appellant-writ petitioner, who appears in person, submits that the writ petition could not have been dismissed in the manner as stated above. The writ petition was filed in the year 2002, but as the same was entertained and admitted for final hearing vide order dated 6.8.2003, on technical grounds, the same could not have been dismissed. According to the appellant-writ petitioner the dues are admitted and on false pretext, the same is being denied to the petitioner. He further submits that at no point of time, the petitioner has accepted any payment without protest rather, the payment was accepted under protest. As per him, the learned Single Judge should have decided the issue rather than relegating the petitioner before any other appropriate forum for claiming money, when the matter was pending since 2002, without there being any serious dispute of fact. 3. Learned counsel for the respondent-State submits that the writ petition is not maintainable, as the same arises out of contractual obligation. He further submits that the appellants-writ petitioners have accepted the amount, which was fixed in a meeting, thus they are barred from raising any further claim. The revised price of bee keeping set was fixed Rs.8,965/-per set and the writ petitioners accepted the said rate and also the final payment was made on 23.3.2001 for the supply of 55 bee keeping sets. Since the petitioners had accepted the revised rate, this writ petition is not maintainable. 4. The petitioners filed the writ petition being WPC No. 3002/2002 challenging the action of the respondent authorities whereby, in arbitrary manner, the payment has been deducted/withheld in relation to supply of bee keeping sets. Since the petitioners had accepted the revised rate, this writ petition is not maintainable. 4. The petitioners filed the writ petition being WPC No. 3002/2002 challenging the action of the respondent authorities whereby, in arbitrary manner, the payment has been deducted/withheld in relation to supply of bee keeping sets. The respondent -State called for an offer in the month of January 2000 to supply bee keeping sets for distribution of the same to the beneficiaries under the MADA and Non-MADA Scheme. The appellants-petitioners quoted the rate of Rs.14,900/-per set to the beneficiaries and also for operating and maintaining the same, which was the lowest. The offer was accepted by the respondent-State as Rs.14,900/-per set and on 9.3.2000 the decision of the competent authority was communicated to the petitioners. It is further case of the petitioners that they have supplied the materials. The petitioners furnished the bills after supplying the materials but his entire payment was not made, but some ad hoc payments were released. It is their further case that the contract rate was reduced whimsically by the respondents, which is absolutely arbitrary and illegal. 5. In the counter affidavit, the State had taken a plea that after full payment of 32 sets as per the rate of 14,900/-, it was found that the petitioners supplied inferior bee keeping sets, thus an enquiry was conducted. As per them, it was settled between the parties that rest supply of 55 sets will be paid till final revised rate. The rate of bee keeping set was revised, due to inferior bee keeping set, which was supplied by the petitioners. Accordingly, the petitioners supplied 55 bee keeping sets. In paragraphs 10 to 12 of the counter affidavit, the respondents have taken plea that they had enquired the actual rate of bee keeping sets from one Muzaffarpur Zila Khadi Gramodog Sangh and the respondents found that the price of set is much less. It is there case that that thereafter in the meeting it was decided to revise the rate of sets at Rs.8,965/-each for three sets and final payment was made on 23.3.2001 for the aforesaid supply of 55 sets and the petitioners did not raise any objection, thus there was no ground to entertain the writ petition. 6. After this writ petition was filed, the same was entertained and admitted on 6.8.2003 and rule was made returnable. 6. After this writ petition was filed, the same was entertained and admitted on 6.8.2003 and rule was made returnable. On 17.11.2009, the learned Single Judge dismissed the writ petition holding that since the petitioner had received the payment of supply of remaining 55 bee keeping sets without any objection, he cannot be allowed to raise the very same dispute taking the ground of illegal deduction. This order was challenged by the petitioners in LPA No. 20 of 2010. The said Letters Patent Appeal was allowed on 23.6.2010 holding that the writ petitioner in the rejoinder affidavit explained the circumstances in which, the payment was received and it has been specifically averred that the payment was accepted by the petitioner under protest. The Division Bench held that dismissal of the writ petition primarily on the aforesaid ground was bad. Thus, the the said appeal was allowed directing the writ Court to re-consider the matter. The matter was thereafter placed before the learned Single Judge. The learned Single Judge ultimately vide order dated 11.8.2021 dismissed the petition being WP(C) No. 3002 of 2002 holding that the dispute being contractual in nature, this writ petition under Article 226 of the Constitution of India is not entertainable. However, liberty was granted to the petitioner to take appropriate recourse for enforcing the terms and conditions of the agreement and for payment of the alleged dues. 7. The impugned rejection is on the ground that the claim of the petitioners is not admitted, moreover the dispute is contractual in nature, for which the writ petitioners may take appropriate recourse for enforcing the terms and conditions of the agreement for payment of dues. 8. The Hon'ble Supreme Court in the case of Kanak (Smt.) and Another Vs. U.P. Avas Evam Vikas Parishad and Others, reported in (2003) 7 SCC 693 , in paragraph 29 while deciding the maintainable of the writ petition has held as follows:- “29. Furthermore, this writ petition was entertained. The appellants herein filed a counter affidavit. The matter was argued on merit and in that view of the matter it is too late in the day to contend that the respondent herein should have availed of the alternative remedy.” 9. Further, the Hon'ble Supreme Court in the case of State of Rajasthan and Ors. Vs. The appellants herein filed a counter affidavit. The matter was argued on merit and in that view of the matter it is too late in the day to contend that the respondent herein should have availed of the alternative remedy.” 9. Further, the Hon'ble Supreme Court in the case of State of Rajasthan and Ors. Vs. Lord Northbrook and Ors., reported in 2019 SCC Online SC 1117 in paragraph 138 has held that when a writ petition has been entertained and kept pending for years, it would not be appropriate to reject the writ petition only on the ground of existence of an alternative remedy. Further, in paragraph 143 of the aforesaid judgment, relying upon the judgment delivered in the case of Kanak (Smt.) and Another(supra), it has further been held that once a writ petition is entertained, and the matter is argued at length on merit, it would be too late in the day to contend that the writ petitioner should avail the alternative remedy. 10. In the instant case, this writ petition was filed on 13.5.2002 and the same was admitted on 6.8.2003 for final hearing. Once after dismissal, the same was remanded by the Hon'ble Division Bench for consideration and the matter was kept pending till August 2021. Thus, the writ petitioner should not have been relegated to take alternative recourse for payment of dues. 11. Now the question is to be decided as to whether there was any serious disputed question of fact or not. As the observation made earlier, the petitioner claimed his dues on the ground that he supplied bee keeping sets. It is the case of the petitioner that he has not been paid the amount at the rate, which was agreed initially when the supply order was issued, which forced him to approach this Court. The respondent authorities denying the claims, has raised two grounds; (i) the material supplied was of inferior quality, (ii) later on, they verified the rates from one Muzaffarpur Zila Khadi Gramodog Sangh and found that the rate of the petitioner is higher. 12. To address the issue, we have gone through Annexure 4 of the writ petition, which is an order issued by the respondents. 12. To address the issue, we have gone through Annexure 4 of the writ petition, which is an order issued by the respondents. From the aforesaid order, it is clear that the District Purchase Committee who was the competent authority, has fixed the price of bee keeping set @ Rs.14,900/-per set and it is also evident from the aforesaid document that the petitioners agreed to supply the sets on the aforesaid rate. Thus, the petitioners were allowed to supply the aforesaid material at the rate fixed by the Competent Authority. 13. Admittedly, the petitioners supplied those materials, which were received by the beneficiaries. Annexure-A to the counter affidavit is a report which suggests that during enquiry, some of the beneficiaries stated that bees have died, thus the boxes are of no use. Some of them stated that the bees are alive and boxes are there. There is no document nor any statement of any of the beneficiaries which could remotely suggest that boxes, which were supplied, were defective. Thus, the ground taken by the respondent authorities, according to us, is not tenable. 14. So far as second ground of rejection is concerned, we find that the respondents in their counter affidavit in paragraph 10 has made the following averments. “10. That the Deputy Commissioner, Bokaro asked the actual rate of Bee Keeping Sets from the Muzaffarpur, Zila Khadi Gramodyogh and the Muzaffarpur Zila Khadi Gramodyogh Sangh send the rate of Bee Keeping Set. On perusal of the rate of Muzaffarpur Zila Khadi Gramadyogh Sangh it is clear that the rate of the petitioner is much higher.” 15. This ground is also not tenable as because Annexure-4, which is the decision of the Committee to allot the work at the rate fixed is dated 9.3.2000 whereas the document on whose basis, the respondents are claiming that the petitioners have charged at much higher rate is dated 31.7.2000. When the work order was issued at particular rate, the respondents could not have called for a fresh rate from some other external sources and thereafter could not have concluded that the rate charged by the petitioners is on the much higher side. 16. Be it noted that Annexure 4, which is the minutes of meeting of the Purchase Committee, clearly suggests that the Committee itself decided that the rate would be 14,900/-and the petitioners agreed to supply at the said rate. 16. Be it noted that Annexure 4, which is the minutes of meeting of the Purchase Committee, clearly suggests that the Committee itself decided that the rate would be 14,900/-and the petitioners agreed to supply at the said rate. When the issue of rate had already been crystallized and the petitioners have supplied the materials at the rate, fixed by the respondent, it is most unfair on the part of the respondents to compare the rate by making an enquiry at much later stage when the work order was already issued. If at all they had an intention to compare the rate, it should have been done prior to issuance of the work order. Thus this ground has also got no legs to stand. 17. The issue as to whether the petitioners have accepted the payment without protest or not has already been decided by the Division Bench in L.P.A. No. 20 of 2010 wherein the Division Bench had already held that the amount was accepted by the petitioners under protest. Thus it cannot be said that the petitioners have agreed to the revised rate. 18. Considering from what has been held above, we find merit in this appeal and also in the writ petition. The impugned order dated 11.8.2021 passed by the learned Single Judge is set aside. This appeal is allowed. Consequently, the writ petition also stands allowed. 19. The respondents are directed to pay the balance amount considering the rate, which was fixed by the respondent authorities at the time of issuing the work order in terms of Annexure-4 of the writ petition.