Jharkhand High Court
Gopal Prasad Mohanty vs The State Of Jharkhand on 11 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No.3002 of 2002
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1. Gopal Prasad Mohanty
2. Gautam Mohanty
3. Rupali Mohanty .......... Petitioners.
-Versus-
1. The State of Jharkhand
2. The Deputy Commissioner, Bokaro.
3. Mr. G.P.A. Kujur, Deputy Development Commissioner, Bokaro.
.......... Respondents.
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CORAM : HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioners : Mr. G. M. Mishra, Advocate
For the State : Mr. J.F. Toppo, S.C.VII
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Order No.18 Date: 11.08.2021
1. This case is taken up through video conferencing.
2. The present writ petition has been filed for issuance of direction upon
the respondents to release the dues amounting to Rs.3,25,825/- and
the security deposit of Rs.10,000/- to the petitioners in respect of
supply of "Bee Keeping Sets" to the beneficiaries as per the direction
of the respondents.
3. The learned counsel for the petitioners submits that the respondents
had published a tender invitation notice in a local daily newspaper,
namely, Prabhat Khabar, on 29.01.2000, offering supply of "Bee
Keeping Sets" for distribution to the selected beneficiaries i.e. poor
tribal families of all blocks of Bokaro district with a view to enhance
their income under productive schemes of Mineral Area Development
Authority (in short 'MADA')/non-MADA. The petitioners' establishment,
namely, Urmila Agro Farm was found the lowest bidder and the offer
relating to supply of Bee Keeping Set @ Rs.14,900/- including the
training for bee keeping was to made to it. The said materials were
supplied by the petitioners' establishment to the concerned
beneficiaries selected by the district authorities in the respective blocks
and also imparted bee keeping training to them. The ex. representative
of Urmila Agro Farm, namely, Vijay Kumar Mittal, being an authorized
signatory, submitted bill dated 11.04.2000 for supply of 32 Bee
Keeping Sets to the Deputy Development Commissioner, Bokaro-
respondent no.3 amounting to Rs.4,76,800/- and the said amount was
paid in full. Thereafter, the petitioners' establishment supplied 24 Bee
Keeping Sets (13 sets in Kasmar block and 11 sets in Jaridih Block) for
which a bill of Rs.3,57,600/- dated 24.05.2000 (later on shown in the
bills as Rs.3,57,000/-) was raised by the said ex. representative of
Urmila Agro Farm. The petitioners' establishment further supplied 31
Bee Keeping Sets for which a bill of Rs.4,61,900/- dated 07.08.2000
was raised. The ex. representative of the petitioners' establishment
repeatedly represented the respondent no.2 and also sent legal notice
to him to release the payment of the outstanding bills, however,
instead of making full payment, an ad-hoc payment was released to
the tune of Rs.4,93,075/-, which was received under protest and a sum
of Rs.3,25,825/- as well as security deposit of Rs.10,000/- is still due
to be paid. It is further submitted that after due deliberation, the bid
price was fixed by the Purchase Committee of the respondents and the
price offered by Urmila Agro Farm was not only the lowest but the
same was also competitive when compared with the price paid for such
sets in other districts. The required training for operation and
maintenance of such sets was also imparted by it to the beneficiaries,
who mostly belonged to tribal community. It is further submitted that
the respondents unilaterally reduced the bid price by misusing their
power and such arbitrary action on their part is violative of the principle
of natural justice, as no opportunity of hearing was provided to the
petitioners before reducing the bid price. It is further submitted that
the respondents were making payment of the bill amount in piecemeal
manner and when the last instalment was being paid, the petitioners
were threatened that no further amount would be paid and as such
they received the last payment under protest. It is wrong to say that
the petitioners did not raise objection at the time of payment. It is also
submitted that Bee Keeping Sets supplied by the petitioners were
received without any objection as to the quality of the material and,
therefore, the respondents cannot raise any such objection after
completion of the work successfully. The price quoted by the
petitioners was accepted by the District Purchase Committee and as
such the same cannot be changed by any other committee that too
when the contract/work is already completed. Even in fixation of the
revised price, the respondents did not take into account several
important and relevant factors i.e. distribution cost at different blocks
situated in scattered locations, interest on capital, interest on overdue
bills, entrepreneur's remuneration, reasonable profit, training cost,
cost of supplying live bees including queen bee, hidden cost and
overheads. It is further submitted that the petitioners never agreed to
the revised rate, as would be evident from the several representations
and legal notices sent to the respondents.
4. The learned counsel appearing on behalf of the respondent-State
submits that the after payment of 32 sets of Bee Keeping Sets, it was
found that the same were of inferior quality. The respondent no.2 set
up an enquiry regarding actual value of the Bee Keeping Sets supplied
by the petitioners. The said enquiry was entrusted to Smt. Meena
Thakur, Deputy Collector-cum-Assistant Project Officer, DRDA, Bokaro.
In the meantime, it was settled between the respondent no.3 and the
petitioners that the rest supply of 55 sets including training bill would
be paid at final revised rate and on such condition the petitioners
supplied 55 Bee Keeping Sets. The enquiry officer submitted the
enquiry report to the respondent no.3 vide letter no.1140 dated
12.06.2000, which reflected that the petitioners supplied inferior Bee
Keeping Sets, the cost of which could be evaluated between Rs.2,000/-
to Rs.2,500/-. The respondent no.2 asked the actual rate of the Bee
Keeping Sets from the Muzaffarpur Zila Khadi Gramodyog Sangh and
it was found that the rate of the petitioners was much higher. The
district authority held a meeting on 05.03.2001 under the
Chairmanship of the respondent no.2 in presence of the petitioners, in
which, it was decided to revise the rate of the Bee Keeping Sets as
Rs.8,965/- for three sets. The petitioners did not raise any objection
to the same and as such the final payment was made on 23.03.2001
for 55 Bee Keeping Sets and hence they are not entitled to any relief.
5. Heard the learned counsel for the parties and perused the materials
available on record. Earlier, the present writ petition was heard by a
Bench of this Court and the same was dismissed vide order dated
17.11.2009, observing that once the petitioners had already received
the payment for supply of remaining 55 Bee-Keeping sets without any
objection, they by filing the writ petition cannot be allowed to raise the
same dispute on the ground that the deduction was made arbitrarily,
which was factually incorrect. However, L.P.A No.20 of 2010 preferred
by the petitioners was allowed vide order dated 23.06.2010, holding
inter alia that from the copy of rejoinder affidavit filed along with the
said appeal, it was revealed that the payment was accepted by the
petitioners under protest. Hence, the impugned order dated
17.11.2009 was set aside observing that the learned Single Judge
would re-consider the matter.
6. Before coming to the merit of the present case, it would be appropriate
to refer the judgments relied upon by the parties in support of their
respective contentions.
7. In the case of Punjab National Bank and Others Versus
Atmanand Singh and Others, reported in (2020) 6 SCC 256,
the Hon'ble Supreme Court after discussing several judgments has
summarized the law dealing with the scope of intervention by the writ
court in the matter involving money claim, relevant paragraphs of
which are quoted herein below:-
"19. The appellant-Bank has rightly invited our attention to the Constitution
Bench decision of this Court in Thansingh Nathmal (supra). In paragraph 7, the
Court dealt with the scope of jurisdiction of the High Court under Article 226 of
the Constitution in the following words:--
"7. ... The jurisdiction of the High Court under Article 226 of the
Constitution 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 Articles. But the exercise of
the jurisdiction is discretionary: it is not exercised merely
because it is lawful to do so. The very amplitude of the jurisdiction
demands that it will ordinarily be exercised subject to certain
self-imposed limitations. Resort that jurisdiction is not intended
as an alternative remedy for relief which may be obtained in a suit
or other mode prescribed by statute. Ordinarily the Court will not
entertain a petition for a writ under Article 226, where the
petitioner has an alternative remedy, which without being unduly
onerous, provides an equally efficacious remedy. Again the High
Court 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. The High Court does
not therefore act as a court of appeal against the decision of a
court or tribunal, to correct errors of fact, and does not by
assuming jurisdiction under Article 226 trench upon an
alternative remedy provided by statute for obtaining relief.
Where it is open to the aggrieved petitioner to move another
tribunal, or even itself in another jurisdiction for obtaining
redress in the manner provided by a statute, the High Court
normally will not permit by entertaining a petition under Article
226 of the Constitution the machinery created under the statute
to be bypassed, and will leave the party applying to it to seek
resort to the machinery so set up.
(emphasis supplied)
20. Similarly, another Constitution Bench decision in Suganmal (supra) dealt
with the scope of jurisdiction under Article 226 of the Constitution. In
paragraph 6 of the said decision, the Court observed thus:--
"6. On the first point, we are of opinion that though the High
Courts have power to pass any appropriate order in the exercise
of the powers conferred under Article 226 of the Constitution,
such a petition solely praying for the issue of a writ of mandamus
directing the State to refund the money is not ordinarily
maintainable for the simple reason that a claim for such a refund
can always be made in a suit against the authority which had
illegally collected the money as a tax. ... We do not find any good
reason to extend this principle and therefore hold that no petition
for the issue of a writ of mandamus will be normally entertained
for the purpose of merely ordering a refund of money to the
return of which the petitioner claims a right."
(emphasis supplied)
And again, in paragraph 9, the Court observed as follows:--
"9. We therefore hold that normally petitions solely praying for
the refund of money against the State by a writ of mandamus are
not to be entertained. The aggrieved party has the right of going
to the civil court for claiming the amount and it is open to the
State to raise all possible defences to the claim, defences which
cannot, in most cases, be appropriately raised and considered in
the exercise of writ jurisdiction."
(emphasis supplied)
21.In Smt. GunwantKaur (supra) relied upon by the respondent No. 1, in
paragraph 14, the Court observed thus:--
"14. The High Court observed that they will not determine
disputed question of fact in a writ petition. But what facts were
in dispute and what were admitted could only be determined
after an affidavit in reply was filed by the State. The High Court,
however, proceeded to dismiss the petition in limine. The High
Court is not deprived of its jurisdiction to entertain a petition
under Article 226 merely because in considering the petitioner's
right to relief questions of fact may fall to be determined. In a
petition under Article 226 the High Court has jurisdiction to try
issues both of fact and law. Exercise of the jurisdiction is, it is
true, discretionary, but the discretion must be exercised on sound
judicial principles. When the petition raises questions of fact of a
complex nature, which may for their determination require oral
evidence to be taken, and on that account the High Court is of the
view that the dispute may not appropriately be tried in a writ
petition, the High Court may decline to try a petition. Rejection of
a petition in limine will normally be justified, where the High
Court is of the view that the petition is frivolous or because of the
nature of the claim made dispute sought to be agitated, or that
the petition against the party against whom relief is claimed is
not maintainable or that the dispute raised thereby is such that it
would be inappropriate to try it in the writ jurisdiction, or for
analogous reasons."
(emphasis supplied)
22. We restate the above position that when the petition raises questions of fact
of complex nature, such as in the present case, which may for their
determination require oral and documentary evidence to be produced and
proved by the concerned party and also because the relief sought is merely for
ordering a refund of money, the High Court should be loath in entertaining such
writ petition and instead must relegate the parties to remedy of a civil suit. Had
it been a case where material facts referred to in the writ petition are admitted
facts or indisputable facts, the High Court may be justified in examining the
claim of the writ petitioner on its own merits in accordance with law."
8. In the case of Joshi Technologies International Inc. Vs. Union
of India and others, reported in (2015) 7 SCC 728, the Hon'ble
Supreme Court has held as under:-
"69.3. If there are very serious disputed questions of fact which
are of complex nature and require oral evidence for their
determination.
69.4. Money claims per se particularly arising out of
contractual obligations are normally not to be entertained except
in exceptional circumstances."
9. In the aforesaid judgments, the Hon'ble Supreme Court has held that
a writ petition cannot be maintained merely for the reason that refund
of money is claimed by the petitioner against the State as the claim for
money can always be made by filing a civil suit. When the refund of
money is claimed by filing a writ petition and the question of facts as
raised is so complex in nature which requires production of documents
and leading of evidences then in such case, the High Court must
relegate the parties to the remedy of a civil suit. However, in case of
admitted facts the High Court may grant relief to the petitioner by
examining the case on its own merit.
10. The learned counsel for the petitioner has put reliance on the judgment
of the Hon'ble Supreme Court rendered in the case of Papatrao
Vyankatrao Patil Vs. The State of Maharashtra & Others,
reported in 2020 SCC OnLine SC 291. I have perused the said
judgment, the relevant paragraphs of which are quoted herein below:-
"11. No doubt that, normally, when a petition involves disputed questions of
fact and law, the High Court would be slow in entertaining the petition under
Article 226 of the Constitution of India. However, it is a rule of self-restraint and
not a hard and fast rule. In any case, this Court in ABL International
Ltd. v. Export Credit Guarantee Corpn. of India Ltd. has observed thus:
"19. Therefore, it is clear from the above enunciation of law that
merely because one of the parties to the litigation raises a dispute
in regard to the facts of the case, the court entertaining such
petition under Article 226 of the Constitution is not always bound
to relegate the parties to a suit. In the above case of Gunwant
Kaur [(1969) 3 SCC 769] this Court even went to the extent of
holding that in a writ petition, if the facts require, even oral
evidence can be taken. This clearly shows that in an appropriate
case, the writ court has the jurisdiction to entertain a writ petition
involving disputed questions of fact and there is no absolute bar
for entertaining a writ petition even if the same arises out of a
contractual obligation and/or involves some disputed questions
of fact"
12. While summing up the conclusions in the aforesaid case, this Court
concluded thus:
"27. From the above discussion of ours, the following legal
principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an
instrumentality of a State arising out of a contractual obligation
is maintainable.
(b) Merely because some disputed questions of fact arise for
consideration, same cannot be a ground to refuse to entertain a
writ petition in all cases as a matter of rule. (c) A writ petition
involving a consequential relief of monetary claim is also
maintainable.
28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the
Constitution of India, the court should bear in mind the fact that
the power to issue prerogative writs under Article 226 of the
Constitution is plenary in nature and is not limited by any other
provisions of the Constitution. The High Court having regard to
the facts of the case, has a discretion to entertain or not to
entertain a writ petition. The Court has imposed upon itself
certain restrictions in the exercise of this power. (See Whirlpool
Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1].) And this
plenary right of the High Court to issue a prerogative writ will not
normally be exercised by the Court to the exclusion of other
available remedies unless such action of the State or its
instrumentality is arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other valid and
legitimate reasons, for which the Court thinks it necessary to
exercise the said jurisdiction."
13. It could thus be seen, that even if there are disputed questions of fact which
fall for consideration but if they do not require elaborate evidence to be
adduced, the High Court is not precluded from entertaining a petition under
Article 226 of the Constitution. However, such a plenary power has to be
exercised by the High Court in exceptional circumstances. The High Court would
be justified in exercising such a power to the exclusion of other available
remedies only when it finds that the action of the State or its instrumentality is
arbitrary and unreasonable and, as such, violative of Article 14 of the
Constitution of India. In any case, in the present case, we find that there are
hardly any disputed questions of facts.
17. In view of the undisputed position, that in spite of the appellant being the
highest bidder and in spite of him depositing the entire amount of auction, since
the possession of the sand block was not given to him for reasons not
attributable to him and he could not excavate the sand, he will be entitled to
get refund of the amount deposited by him."
11. In the aforesaid case also, the Hon'ble Supreme Court has observed
that the plenary power under Article 226 of the Constitution of India is
to be exercised in exceptional circumstances when from the facts of
any given case, it appears that there is no requirement of adducing
elaborate evidence to decide the issue in question.
12. The learned counsel appearing on behalf of the respondent-State has
also relied upon the judgment of the Hon'ble Supreme Court rendered
in the case of M/s Radha Krishna Agarwal & Others Vs. State of
Bihar & Others, reported in (1977) 3 SCC 457. The relevant
paragraphs of the said judgment are quoted herein below:-
"11. In the cases before us the contracts do not contain any statutory terms or
obligations and no statutory power or obligation which could attract the
application of Article 14 of the Constitution is involved here. Even in cases
where the question is of choice or consideration of competing claims before an
entry into the field of contract facts have to be investigated and found before
the question of a violation of Article 14 could arise. If those facts are disputed
and require assessment of evidence the correctness of which can only be tested
satisfactorily by talking detailed evidence, involving examination and cross-
examination of witnesses, the case could not be conveniently or satisfactorily
decided in proceedings under Article 226 of the Constitution. Such proceedings
are summary proceedings reserved for extraordinary cases where the
exceptional and what are described as, perhaps not quite accurately,
"prerogative" powers of the Court are invoked. We are certain that the cases
before us are not such in which powers under Article 226 of the Constitution
could be invoked.
12. The Patna High Court had, very rightly, divided the types of cases in which
breaches of alleged obligation by the State or its agents can be setup into three
types. These were stated as follows:
"(i) Where a petitioner makes a grievance of breach of promise
on the part of the State in cases where on assurance or promise
made by the State he has acted to his prejudice and predicament,
but the agreement is short of a contract within the meaning of
Article 299 of the Constitution;
(ii) Where the contract entered into between the person
aggrieved and the State is in exercise of a statutory power under
certain Act or Rules framed thereunder and the petitioner alleges
a breach on the part of the State; and
(iii) Where the contract entered into between the State and the
person aggrieved is non-statutory and purely contractual and the
rights and liabilities of the parties are governed by the terms of
the contract, and the petitioner complains about breach of such
contract by the State."
15. It then, very rightly, held that the cases now before us should be placed in
the third category where questions of pure alleged breaches of contract are
involved. It held, upon the strength of Umakant Saran v. State of Bihar [(1973)
1 SCC 485] and Lekhraj Satramdas v. Deputy Custodian-cum-Managing
Officer [AIR 1966 SC 334] and B.K. Sinha v. State of Bihar [AIR 1974 Pat 230]
that no writ or order can issue under Article 226 of the Constitution in such
cases "to compel the authorities to remedy a breach of contract pure and
simple".
13. In the aforesaid judgment, the Hon'ble Supreme Court has held that
where a contract entered into between the State and a private party,
is purely contractual and the rights and liabilities of the parties are
governed by the terms of the contract, a writ under Article 226 of the
Constitution of India cannot be issued to the authorities for redressal
of the alleged breach of the contract by the State.
14. Reverting back to the facts of the present case, let us see whether it
is a fit case to exercise extraordinary writ jurisdiction, keeping in view
the nature of dispute involved, directing the respondents to release
the dues as claimed by the petitioners.
15. It transpires that an agreement was arrived between the respondents
and the petitioners for supply of Bee Keeping Sets @ 14,900/- per set.
It is admitted fact that a bill dated 11.04.2000 for supply of 32 Bee
Keeping Sets amounting to Rs.4,76,800/-was paid in full. However, for
remaining 55 Bee Keeping Sets supplied by the petitioners, they were
paid Rs.4,93,075/- which was received under protest and a sum of
Rs.3,25,825/- as well as the security deposit of Rs.10,000/- is due to
be paid.
16. The contention of the respondent-State is that after payment of 32
Bee Keeping Sets, it was found that the same were of inferior quality
and as such an enquiry was conducted by Smt. Meena Thakur, Deputy
Collector-cum-Assistant Project Officer, DRDA, Bokaro and in the
meantime it was settled between the respondent no.3 and the
petitioners that the remaining supply of 55 Bee Keeping Sets including
training Bill would be paid at final revised rate and on such condition
the petitioners supplied the aforesaid 55 Bee Keeping Sets. As per the
enquiry report submitted by the Deputy Collector-cum-Assistant
Project Officer, DRDA, Bokaro subsequently, the Bee Keeping Sets
supplied by the petitioners were of inferior quality and cost of each
supplied set was evaluated between Rs.2000/- to 2,500/- and as such
the respondent no.2 enquired the actual rate of the Bee Keeping Sets
from the Muzaffarpur Zila Khadi Gramodyog Sangh. In the meeting
dated 05.03.2001 held under the Chairmanship of the respondent no.2
in which the petitioners were also present, it was decided to revise the
rate of the Bee Keeping Sets as Rs.8965/- for three sets and an amount
of Rs.4,93,075/- was paid to them and according to the respondents,
the petitioners did not make any objection to the same. Thus, the claim
of the respondents is that after supply of 32 Bee Keeping Sets, the rate
was revised by the parties and the payment was made on the revised
rate. It is thus evident that the amount so claimed by the petitioners
is not an admitted one, rather the same has out rightly been denied
by the respondents on the basis of the sequence of events explained
by them in the counter affidavit.
17. Moreover, the dispute raised by the petitioners is purely a contractual
in nature which is governed by the terms and conditions of the
agreement and no public law element is involved in the present case.
In view of the ratio laid down by the Hon'ble Supreme Court in the
case of M/s Radha Krishna Agarwal (Supra.), a writ under Article
226 of the Constitution of India should not be issued in such type of
cases.
18. Keeping in view the nature of the dispute raised in the present writ
petition, the same is not entertainable under Article 226 of the
Constitution of India. However, the petitioners may take appropriate
recourse for enforcing the terms and conditions of the agreement and
for payment of the alleged dues, if permissible under law.
(Rajesh Shankar, J.)
Sanjay/AFR
