Bilifang Mushahary vs The Bodoland Territorial Council ...
2022 Latest Caselaw 725 Gua

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GAHC010016732019




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : WP(C)/577/2019

         BILIFANG MUSHAHARY
         S/O RUDRA MUSHAHARY
         VILL- AUBARI, P.S. AND P.O. SAUGPUR
         DIST. BAKSA, ASSAM
         PIN - 781364.

         VERSUS

         THE BODOLAND TERRITORIAL COUNCIL AND 4 ORS.
         REP. BY THE SECRETARY TO THE BODOLAND TERRITORIAL COUNSEL,
         BODOFA NWGWR, KOKRAJHAR, ASSAM, IN - 783370.

         2:THE ADDITIONAL DIRECTOR AND CHD
          SOIL CONSERVATION DEPARTMENT
          BODOFA NWGWR
          KOKRAJHAR
         ASSAM
          PIN - 783370.

         3:THE DIVISIONAL OFFICER
          BAKSA SOIL CONSERVATION DIVISION
          MUSHALPUR (BTAD)
          DIST. BAKSA
         ASSAM
          PIN - 781343.

         4:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
         WPT AND BC DEPARTMENT
          DISPUR
         ASSAM
          PIN - 781006.

         5:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
          FINANCE DEPTT. DISPUR
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             ASSAM
             PIN -78100

Advocate for the Petitioner   : MR. M SARANIA

Advocate for the Respondent : GA, ASSAM


                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                           ORDER

Date : 02-03-2022

Mr. Hikavi H. Kinimi, learned counsel appearing for the petitioner; Mr. B. Choudhury, learned Standing Counsel, Bodoland Territorial Council [BTC] for the respondent nos. 1-3; Mr. R. Dhar, learned Standing Counsel, WPT&BC Department for the respondent no. 4; and Mr. A. Chaliha, learned Standing Counsel, Finance Department for the respondent no. 5.

2. The subject-matter in this writ petition is execution of a contract work viz. 'G.C. Project at Magurmari Village under Goreswar S.C. Range' [the Contract-Work] and non-disbursal of an amount of ₹ 13.06 lakhs in favour of the petitioner which the petitioner has claimed to be due from the authorities in the BTC.

3. The case projected by the petitioner in this writ petition, in brief, is that Administrative Approval for the Contract-Work was accorded on 29.11.2019 [Annexure-1 to the writ petition]. Thereafter, the Technical Sanction was accorded on 14.02.2015 [Annexure-2 to the writ petition] for the Contract-Work. The petitioner has asserted that after compliance of requisite formalities, he proceeded to execute Contract-Work as per the specifications, drawings and agreement and completed the same on 09.03.2016. The authorities in the respondent BTC physically verified the Contract-Work and found that the Contract-Work had been completed as per the specifications, drawings, and agreement. In that connection, the respondent no. 3 had issued a Completion Report [Annexure-4 to the writ petition]. After completion of the Contract-Work, the respondent no. 1 i.e. the Secretary, BTC by his letter no. BTC/SC[TFC]02/2016/01 dated 20.12.2016 wrote to the respondent no. 4 i.e. the Page No. 3/5

Commissioner & Secretary to the Government of Assam, WPT&BC Department with a

progress report of the Soil Conservation Department schemes under Award of 13 th Finance Commission. The respondent no. 1 had thereby requested the respondent no. 4 for release of fund against the schemes out of allocated fund of ₹ 1250.00 lakhs for the year 2014-2015. Amongst the scheme included therein was the Contract-Work executed by the petitioner for an amount of ₹ 13.06 lakhs. As the said amount of ₹ 13.06 lakhs has not been disbursed till date, the petitioner has approached this Court by this writ petition seeking a direction to the respondent authorities to disburse the amount.

4. Mr. Choudhury, learned Standing Counsel, BTC has submitted that though from the documents annexed to this writ petition, it is prima facie reflected that the petitioner had completed the Contract-Work and a part of the final bill amount has been released but still there is requirement for verification of the matter. It is submitted that a decision has been taken by the respondent BTC authorities to examine all the pending claims relating to contract works and to that effect the respondent no. 2 has passed an order on 15.11.2021. As per the said order, the respondent BTC authorities have undertaken to examine all the cases relating to outstanding liabilities within a period of 6 [six] months from the date of issuance of the said order. Mr. Choudhury has placed a copy of the said order before this Court.

5. The order bearing No. BTC/F[Audit]/49/2021/Pt-I/1] dated Kokrajhar, the 15 th November, 2021 reads as under :-

         "                 BODOLAND TERRITORIAL COUNCIL SECRETARIAT
                                   BODOFA NWGWR::KOKRAJHAR

         No. BTC/F(Audit)49/2021/Pt-I/1            Dated-Kokrajhar, the 15th November, 2021

                                               ORDER

WHEREAS it has been noticed that huge number of outstanding liabilities have been created by the erstwhile BTAD authority since 2011 to February, 2020 through contractual work orders to the Contractors/Suppliers, etc. under various entrusted Page No. 4/5

departments of BTC without corresponding budget provisions

WHEREAS the outstanding liabilities created by the erstwhile BTAD authority are required to undergo detail examination and verification in the context of proposals of such works made, NIT, selection of successful bidders, quality of works, completion of works, fund position, part payment, etc.

WHEREAS it is further noticed that a good number of court cases have been filed before the Hon'ble Gauhati High Court as well as in the District Courts of respective District Jurisdictions under BTAD by the Contractors/Suppliers, etc. praying for release of payments to the Contractors/Suppliers, etc. against their respective work orders

WHEREAS, reportedly, out of the aforesaid contractual works, some part payments also made against portion of works completed by the Contractors/Suppliers, etc. by the erstwhile BTAD authority in certain cases. However, such fund flow does not follow any rationale and is found to be arbitrant

AND THEREFORE, in view of the above facts and circumstances, the BTC has decided to verify all such works by conducting comprehensive audit, financial verification and physical verification wherever applicable, against all such contractual works in the Govt. level and further to complete the whole exercise in this regard within 6 (six) months from the date of issue of this order. After verifying the same, if it is found that the claims are admissible after following all established financial norms, the same shall be processed in accordance with law and as per decision contained in Tamsher Ali and others vs. State of Assam and others reported in 2008 (4) GLT 1 accordingly. Furthermore, if instances of wrongdoing or misappropriation are found during such comprehensive audit, financial verification and physical verification wherever applicable, appropriate legal action would be taken against the persons/agencies/firms concerned in accordance with the applicable laws.

This order shall come into force with immediate effect."

6. Mr. Dhar, learned Standing Counsel, WPT&BC Department and Mr. Chaliha, learned Standing Counsel, Finance Department for the respondent nos. 4 and 5 have also endorsed Page No. 5/5

the said submission.

7. Mr. Kinimi, learned counsel for the petitioner having gone through the order dated 15.11.2021, has submitted that the process regarding payment of the outstanding dues to the petitioner shall be completed within the stipulated time period as mentioned in the said order.

8. Having considered the contents of the said order dated 15.11.2021 and the decision of the Full Bench judgment of this Court, rendered on 29.09.2008, 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], it is considered appropriate that the respondent authorities in the respondent BTC shall undertake the exercise in terms of the said order dated 15.11.2021 in respect of the claims of the petitioner also and complete the exercise within the time frame mentioned in the order. If after such exercise, the petitioner is found entitled to the amount of ₹ 13.06 lakhs or any other amount, the same shall be released in favour of the petitioner forthwith thereafter. The petitioner shall submit a certified copy of this order to the Secretary, Bodoland Territorial Council [BTC], Kokrajhar i.e. the respondent no. 1 within 7 [seven] days from today for his doing the needful.

9. The writ petition stands disposed of in terms of the above observation and direction.

JUDGE

Comparing Assistant