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2024 DIGILAW 1694 (GAU)

Genmachines v. State Of Nagaland

2024-12-02

MANISH CHOUDHURY

body2024
JUDGMENT : The instant review petition is preferred seeking review of an Order dated 01.10.2024, whereby, a writ petition, W.P.[C] no. 10/2024 after hearing, has been disposed of with certain observations and directions. It is relevant to mention that in the writ petition, W.P.[C] no. 10/2024, the present review petitioner was the writ petitioner. 2. I have heard Mr. N. Longkumer, learned counsel for the review petitioner and Mr. Imti Imsong, learned State counsel for all the respondents. 3. Before dilating on the grounds on which the instant review petition is preferred, it appears appropriate to extract the contents of the Order dated 01.10.2024 passed in the writ petition, W.P.[C] no. 10/2024, for better appreciation, :- 2. The projected case of the petitioner, in brief, is that it is a registered supplier and contractor and has earned its reputation in execution of small hydro electric project, design, supply, erection, commissioning, total building management system, testing, servicing of power plants, etc. and it has the experience of executing a number of hydro project works in various parts of the country. 2.1. On 09.12.2015, the office of the Chief Engineer [T&G], Department of Power, Nagaland [the respondent no. 4] published a Short Notice Inviting Tender [SNIT] inviting sealed bids from reputed Manufacturers, Authorized Distributors and Engineering Procurement and Construction [EPC] Contractors for construction of ‘Ponglefo Hydro Electric Project’ [‘the Project’, for short] at Salomi village under Kiphire District of Nagaland at an approximate cost of Rs. 16.00 crores. In response to the SNIT which was widely published in the local newspapers, the petitioner along with others submitted its sealed bid. After evaluation, the petitioner was selected and was awarded an Work Order dated 06.02.2016 for construction of the Project, that is, Ponglefo Hydro Electric Project, 2 x 500 kw and the petitioner was directed to execute a Contract Agreement within 15 days from the date of issue of the Work Order. A Contract Agreement was thereafter, executed between the petitioner and the respondent no. 4 on behalf of the Government of Nagaland on 14.03.2016 after complying with all the formalities. The details of the Project was set forth in the said Contract Agreement. A Contract Agreement was thereafter, executed between the petitioner and the respondent no. 4 on behalf of the Government of Nagaland on 14.03.2016 after complying with all the formalities. The details of the Project was set forth in the said Contract Agreement. After issuance of the Work Order and the execution of the Contract Agreement, the petitioner proceeded to execute the Project, Ponglefo Hydro Electric Project in a remote area in Kiphire District which does not have proper road connectivity and other infrastructure. 2.2. It is the further case of the petitioner that despite the hardships and difficulties faced by it apart from unprecedented monsoon rains and natural calamities, the petitioner was able to complete the Project, Ponglefo Hydro Electric Project. The petitioner has asserted that the Ponglefo Hydro Electric Project was successfully erected, tested and technically commissioned on 27.08.2020. After completion of the Project, the petitioner had intimated the respondent authorities regarding completion of the Project vide a Letter dated 30.11.2022 with a request to make payment of its outstanding bill amount against the Project. 2.3. When the respondent authorities failed to pay the outstanding bill amount, the petitioner stated to have sent reminders on 03.04.2023 and 19.05.2023 for payment of the outstanding bill amount. When despite the reminders, the respondent authorities failed to make the payment, the petitioner sent a Legal Notice on 30.10.2023 to the respondent authorities demanding payment of the outstanding bill amount within thirty days from the date of receipt of the notice. 2.3. In response to the Legal Notice, the petitioner was furnished a copy of the Letter dated 22.11.2023 sent by the respondent no. 4 to the Commissioner & Secretary to the Government of Nagaland, Department of Power [the respondent no. 2] inviting attention of the respondent no. 2 that a proposal was already submitted for provisioning fund amounting to Rs. 617.38 lakhs as outstanding liabilities to the contractor, that is, the petitioner against the Project, Ponglefo Hydro Electric Project and the respondent no. 2 was requested to necessary action from his end. Thereafter on 23.11.2023, the respondent no. 4 vide his Letter of even date informed the petitioner that the completion DPR amounting to Rs. 617.38 lakhs as outstanding liabilities to the contractor, that is, the petitioner against the Project, Ponglefo Hydro Electric Project and the respondent no. 2 was requested to necessary action from his end. Thereafter on 23.11.2023, the respondent no. 4 vide his Letter of even date informed the petitioner that the completion DPR amounting to Rs. 617.38 lakhs for the outstanding liabilities for the Project, Ponglefo Hydro Electric Project had already been prepared and taken up with the Government for provisioning of additional fund and the petitioner was requested to withdraw the Legal Notice. 2.4. The petitioner has canvassed that it has already completed the Project after successfully testing and commissioning it on 27.08.2022 and to complete the Project, it had to incur huge investment in procuring construction materials, machineries and labour by raising fund from various sources. Due to non-release of its outstanding liabilities, the petitioner has been facing difficulties. With such projection, the petitioner has preferred the instant writ petition seeking inter alia a direction to the State respondents to release the admitted outstanding contractual liability amounting to Rs. 617.38 lakhs and also to pay an interest @ 12% per annum from the date of completion of the Project. 3. The State respondents through the Secretary to the Government of Nagaland, Department of Power has filed a counter affidavit. It has been stated therein that as regards the funding of a project, the process has to undergo through various stages at the Government level. It is stated that the Department of Power initiated the process for securing the fund vide its Letters, dated 31.10.2023 and dated 22.11.2023, but the process of securing the necessary fund could not be materialized during 2023-2024. It is further stated that the outstanding liability of the contractor has been approved and secured by provisioning Rs. 617.38 lakhs in the sectoral outlay of the Department for 2024-2025. The State respondents have stated that the Project was initially started with an estimated cost of Rs. 2295.00 lakhs in 2016-2017 but the cost escalated to Rs. 3217.33 lakhs due to unprecedented natural calamities at the time of the Project completion in 2022. Due to such natural calamities, some additional works were awarded to the contractor and as a result, the cost of the Project had increased. 2295.00 lakhs in 2016-2017 but the cost escalated to Rs. 3217.33 lakhs due to unprecedented natural calamities at the time of the Project completion in 2022. Due to such natural calamities, some additional works were awarded to the contractor and as a result, the cost of the Project had increased. The State respondents have opposed the claim of the petitioner for interest @ 12% per annum on the ground that nowhere in the Contract Agreement, the claim for interest was agreed upon. 3.1. Mr. Imchen, learned State counsel appearing for the State respondents has submitted that the claim of the petitioner is under consideration of the State respondents and provisioning of fund amounting to Rs. 617.38 lakhs has already been approved and secured in the sectoral outlay of the Department for 2024-2025 and the said amount will be disbursed to the contractor within a reasonable period of time. Mr. Imchen has, however, contended that the claim of interest by the petitioner is unjust and the same cannot be agreed upon. 4. In response, Mr. Chishi, learned counsel for the petitioner has submitted that if the State respondents disburse the admitted outstanding amount within a reasonable and agreed period of time, the petitioner would not make any claim for interest. He has further submitted that if the State respondents fail to disburse the admitted outstanding amount within the agreed period of time, then the petitioner should have the liberty to take recourse to appropriate proceeding to claim interest on the contract amount. 5. In view of such submission advanced by the learned counsel for the petitioner, Mr. Imchen, learned State counsel has submitted that the State respondents would be in a position to disburse the entire admitted outstanding amount of Rs. 617.38 lakhs to the petitioner within a period of 6 [six] months. 6. From the above discussion, it has emerged that the petitioner was awarded the Project, Ponglefo Hydro Electric Project after a tender process and execution of a Contract Agreement. In the counter affidavit filed by the State respondents through the Secretary to the Government of Nagaland, Power Department, it has been admitted that the petitioner had executed the Project. The assertion of the petitioner to the effect that the petitioner had successfully erected, tested and technically commissioned the Project on 27.08.2022 has not been denied by the State respondents. In the counter affidavit filed by the State respondents through the Secretary to the Government of Nagaland, Power Department, it has been admitted that the petitioner had executed the Project. The assertion of the petitioner to the effect that the petitioner had successfully erected, tested and technically commissioned the Project on 27.08.2022 has not been denied by the State respondents. In the counter affidavit, the State respondents have admitted its outstanding liability to the extent of Rs. 617.38 lakhs against the Project. It has been projected that though the said amount could not be disbursed during the year 2023-2024, the said amount has been approved and secured in the sectoral outlay in the Department of Power during 2024-2025. 7. In view of admission of outstanding liability to the extent of Rs. 617.38 lakhs and having regard to the submission of the learned State counsel that the State respondents will be in a position to disburse the said admitted outstanding amount within a period of six months, this writ petition can be disposed of with a direction to the State respondents to complete all the necessary steps for disbursal of the said amount and thereafter, to disburse the admitted outstanding amount of Rs. 617.38 lakhs as expeditiously as possible, within an outer limit of six months from the date of submission of a certified copy of this order by the petitioner at the office of the respondent no. 2. It is accordingly ordered. It is further observed that in the event of failure to disburse the said amount within such period of six months, the petitioner would be at liberty to initiate appropriate proceeding claim interest on the contract amount before the appropriate forum in accordance with law. 8. This order disposes of the writ petition. No cost. 4. It is relevant to mention that the writ petition, W.P.[C] no. 10/2024 was preferred seeking inter-alia directions to the respondent authorities, firstly, to release a contract bill amount of Rs. 647.57 lakhs to the petitioner within a specified period of time; and secondly, to pay an interest @ 12% per annum from the date of completion of the contract-work till final realization. 5. It has been averred in the review petition and also contended by the learned counsel for the review petitioner that in the writ petition, a prayer was made for release of the pending contract bills amounting to Rs. 5. It has been averred in the review petition and also contended by the learned counsel for the review petitioner that in the writ petition, a prayer was made for release of the pending contract bills amounting to Rs. 647.57 lakhs within a stipulated period of time. But the Court by the Order dated 01.10.2024, had directed the respondent authorities only to clear the outstanding admitted pending bills amounting to Rs. 617.38 lakhs and as such, there is a discrepancy between the amount claimed by the petitioner and the amount directed to be released by the Court. The learned counsel for the review petitioner-writ petitioner has contended that the State respondents in their counter affidavit, filed in the writ proceedings, had not denied about the pending contract bills amounting to Rs. 647.57 lakhs claimed by the petitioner. It has been urged that the State respondents had stated that the outstanding bills of the petitioner could not be cleared in view of non-availability of fund and the concerned department had sought for an additional fund amounting to Rs. 617.38 lakhs for clearing the pending bills to the petitioner. With such projections, the review petitioner has urged that if the Order dated 01.10.2024 is not modified or recalled, irreparable loss would be caused to the review petitioner-writ petitioner. 6. The learned State Counsel appearing for the respondents has submitted that though in the writ petition, the writ petitioner had sought for a direction to release an amount of Rs. 647.57 lakhs against execution of the Project named Ponglefo Hydro Electric Project but the State respondents in the counter affidavit filed therein, had admitted liability only to the extent of Rs. 617.38 lakhs. He has, thus, contended that there is no manifest and palpable error in the Order dated 01.10.2024 necessitating a review or its recall. He has contended that a review is maintainable only where a glaring omission or patent mistake or grave error has occurred. As the Order dated 01.10.2024 was passed on the basis of admission of liability by the State respondents in its counter affidavit in a writ petition involving a money claim, which kind of writ petition is not ordinarily to be entertained, the instant review petition is not liable to be admitted. The entertainment of such review petition would otherwise, amount to a re-hearing of a writ petition involving claim of a disputed amount. The entertainment of such review petition would otherwise, amount to a re-hearing of a writ petition involving claim of a disputed amount. He has, thus, urged for dismissal of the review petition. 7. I have duly considered the submissions of the learned counsel for the parties and have also examined the grounds on which the review of the Order dated 01.10.2024 passed in the writ petition, W.P.[C] no. 10/2024 has sought for. The contents of the Order dated 01.10.2024 have already been extracted hereinabove. 8. From the prayer part of the writ petition, it is noticed that the writ petition was preferred seeking a direction to the State respondents to release an amount of Rs. 647.57 lakhs which amount, according to the writ petitioner-review petitioner, was due against the contract works executed by the writ petitioner-review petitioner for the Project named Ponglefo Hydro Electric Project. It may be stated that in paragraph 2.4 of the Order dated 01.10.2024, it was mentioned that the writ petition was preferred seeking a direction to the State respondents to release an admitted outstanding contractual liability amounting to ‘Rs. 617.38 lakhs’, instead of ‘Rs. 647.57 lakhs’, as prayed in the prayer portion of the writ petition. Such mention of the amount was made in the Order dated 01.10.2024 when the learned counsel for the writ petition had submitted, as extracted in paragraph 4 of the Order dated 01.10.2024, that he would limit his submission for release of an amount of Rs. 617.38 lakhs, which had been already admitted by the State respondents in their counter affidavit, instead of what had been claimed in the writ petition. Be that as it may. 9. 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 jurisdictions which are expressly provided in Article 226 itself. But the exercise of the jurisdiction is discretionary and it is not to be exercised merely because it is lawful to do so. In a writ petition under Article 226 of the Constitution of India, the High Court has jurisdiction to try issues both of fact and law. But the exercise of the jurisdiction is discretionary and it is not to be exercised merely because it is lawful to do so. In a writ petition under Article 226 of the Constitution of India, the High Court has jurisdiction to try issues both of fact and law. In the process, the High 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 pleading 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 but the scope of judicial review in a writ petition involving money claim especially which pertains to contractual matter, is limited and the discretionary jurisdiction in such matter is to be exercised on sound judicial principles. When in a writ petition disputed questions of fact are raised and involved requiring appreciation of evidence, oral and/or documentary, then it may not be convenient to decide such disputes in a proceeding under Article 226 of the Constitution and in such a case, the Court may decline to try a writ petition with regard to such disputed questions of fact, relegating the writ petitioner to an appropriate forum for determination of such disputed questions of fact in a proper and appropriate proceeding. 10. The Hon’ble Supreme Court in Joshi Technologies International Inc. vs. Union of India, [2015] 7 SCC 728, has observed that money claims per se particularly arising out of contractual obligations are normally not to be entertained, except in exceptional circumstances, in a writ petition. It has been held in Union of India and others vs. Puna Hinda, [2021] 10 SCC 690, to the effect that a dispute regarding payment allegedly due as against a contract-work could not be raised by way of a writ petition on disputed questions of fact. It has been further held that though the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory favour, those are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether any amount is payable or not and/or how much amount is payable are disputed questions of fact. The dispute as to whether any amount is payable or not and/or how much amount is payable are disputed questions of fact. In the event there is no admission on the part of the respondents to infer that the amount claimed stands crystallized, no right would accrue to the writ petitioner. A Full Bench of this Court in Tamsher Ali and others vs. State of Assam and others, 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 by the Head of the Departments in respect of other departments. 11. When the writ petition, W.P.[C] no. 10/2024 was taken up for consideration, the Court had taken note of the stand taken by the State respondents in the counter affidavit filed through the Secretary to the Government of Nagaland, Power Department. In the said counter affidavit, it was admitted that the petitioner had executed the Project named Ponglefo Hydro Electric Project by not denying the assertion of the petitioner to the effect that the petitioner had successfully erected, tested and technically commissioned the Project on 27.08.2022. The Court had also taken note of the fact that in the counter affidavit, the State respondents had admitted its outstanding liability to the extent of only Rs. 617.38 lakhs against the Project. It was stated in the counter affidavit that the said amount could not be disbursed during the year : 2023-2024 and the said amount had been approved and secured in the Sectoral Outlay in the Department of Power during the year : 2024-2025. It was in view of such admission of outstanding liability to the extent of Rs. 617.38 lakhs by the State respondents in their counter affidavit, the writ petition was disposed with a direction to the State respondents to disburse the admitted outstanding amount of Rs. 617.38 lakhs, in the manner observed therein. 12. It is true that nothing in Article 226 of the Constitution of India precludes a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Yet, there are limits to the exercise of power of review. 12. It is true that nothing in Article 226 of the Constitution of India precludes a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Yet, there are limits to the exercise of power of review. The power of review may be exercised to the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made. The power may also be exercised where some mistakes or error apparent on the face of the record is found. It may also be exercised on any analogous ground. But, the power of review is not to be exercised on the ground that the decision was erroneous on merit as that would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the court wherefrom the appealable order has arisen. 13. It is not a case of the review petitioner that other than the admission of liability to the extent of Rs. 617.38 lakhs by the State respondents in the counter affidavit filed in the proceedings of the writ petition, W.P.[C] no. 10/2024, there is admission of liability of any further amount, say either Rs. 647.57 lakhs or any amount beyond Rs. 617.38 lakhs, by the State respondents. The Court had made the direction in the Order dated 01.10.2024 to the State respondents to disburse the admitted outstanding amount of Rs. 617.38 lakhs only after being conscious of the fact of admission of liability for that amount by the State respondents and after taking into consideration the fact that the right of the writ petitioner therein against his claim of Rs. 647.57 lakhs, had been crystallized only to the extent of Rs. 617.38 lakhs in view of admission of liability by the State respondents in their counter affidavit, which was filed through the Secretary to the Government of Nagaland, Power Department. 647.57 lakhs, had been crystallized only to the extent of Rs. 617.38 lakhs in view of admission of liability by the State respondents in their counter affidavit, which was filed through the Secretary to the Government of Nagaland, Power Department. In view of the position of law as regards adjudication of a money claim made in a writ petition, as highlighted in the decisions mentioned above, this Court is of the unhesitant view that the review petitioner has failed to make out any case for review or recall of the Order dated 01.10.2024 passed in the writ petition, W.P.[C] no. 10/2024. 14. Before parting with, this Court would like to make it clear that the Court while passing the Order dated 01.10.2024 in the writ petition, W.P.[C] no. 10/2024, has not made any observation on merits as regards the claim of the petitioner for any amount beyond Rs. 617.38 lakhs as the State respondents, in their counter affidavit filed therein, did not make any admission of liability beyond Rs. 617.38 lakhs, thereby, making the petitioner’s claim beyond Rs. 617.38 lakhs to fall in disputed arena requiring the writ petitioner-review petitioner to establish its claim beyond Rs. 617.38 lakhs in an appropriate proceeding, albeit not in a writ proceedings, before an appropriate forum. 15. In view of the above discussion and for the reasons assigned therein, the review petition having been found bereft of any merits, stands dismissed, with the observations made above. There is no order as to cost.