M/S Data Tech vs The State Of Jharkhand Through Its ...
2021 Latest Caselaw 4002 Jhar

                             1




 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No.162 of 2021
                     ------

M/s Data Tech, a proprietorship concern represented through its Proprietor namely Alok Kumar Dubey, aged about 57 years, son of Late Narad Prasad Dubey, resident of: H1/76, Near Central Bank of India, Harmu Housing Colony, P.O: Harmu, P.S: Argora, District-

 Ranchi, Jharkhand                              .....    .... Appellant


                             Versus

1. The State of Jharkhand through its Chief Secretary, having its office at Project Building, P.S: Jagannathpur, P.O: Dhurwa, Town and District-Ranchi, Jharkhand

2. Deputy Commissioner, Lohardaga, P.O, P.S & District-Lohardaga, State-Jharkhand

3. Deputy Development Commissioner, P.O, P.S & District-Lohardaga, State-Jharkhand ...... ..... Respondents

CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

------

For the Appellant : Mr. Ravi Prakash Mishra, Advocate For the Resp.-State : Mr. Gaurang Jajodia, A.C. to S.C.-I

------

ORAL JUDGMENT 04/Dated: 26.10.2021

The instant intra-court appeal, preferred under Clause-10 of Letters

Patent, is directed against the order/judgment dated 21.01.2021 passed

by the learned Single Judge of this Court in W.P.(C) No.1592 of 2020,

whereby and whereunder, the order as contained in memo no.220 dated

8th June, 2020 issued by the Deputy Commissioner, Lohardaga by which

the writ petitioner was blacklisted forfeiting the security amount of rupees

3 lakhs and an order has been passed not to pay the remaining amount of

Rs.9,45,000/- for installation of CCTV Surveillance System in Lohardaga

Town, the work claimed to have been done by the writ petitioner three

years back, has been declined to be interfered with. However, the order of

blacklisting has been quashed by the learned Single Judge with a liberty

to take fresh steps towards blacklisting/debarment of the writ petitioner

following the principles of natural justice but so far as the order of

forfeiture of security amount of Rs.3 lakhs and payment of the balance

agreement amount of Rs.9,45,000/- are concerned, the writ petitioner has

been given liberty to take appropriate recourse against the same as per

Law.

2. The brief facts of the case as per the pleading made in the writ

petition are required to be enumerated which reads hereunder as:-

The writ petitioner has participated in the notice inviting tender

issued for installation of IP based CCTV Surveillance System in

Lohardaga town by depositing a sum of Rs.3 lakhs as security deposit

vide demand draft no.79565 dated 20th September, 2016. The bid of the

writ petitioner along with others has been considered by the District

Purchase Committee, Lohardaga in its meeting held on 07th October,

2016. The writ petitioner was declared to be successful in the said tender

process and was awarded the work vide work order as contained in memo

no.411 dated 21st October, 2016 and administrative approval to the extent

of Rs.46.90 lakhs was finalized by the Deputy Commissioner, Lohardaga

for the said purpose. The writ petitioner has completed the work within the

prescribed time and accordingly, has informed the concerned respondent

vide letter dated 13th January, 2017 with a request to make payment of

Rs.46.90 lakhs for completion of the work, however, the payment was not

made. In the meantime, the writ petitioner has started providing service in

terms of warranty clause of the technical bid in respect of CCTV cameras

installed by it. The respondent no.2-Deputy Commissioner, Lohardaga

called for a technical report regarding installation of CCTV cameras which

was submitted by the District Informatics Officer, National Informatics

Centre, Lohardaga vide letter no.41/NIC/17 dated 19th December, 2017,

wherein, it was reported that there were 32 locations where 72 CCTV

cameras found to be installed and thereafter the payment of Rs.23.45

lakhs and Rs.14.00 lakhs were released to the writ petitioner against the

said work vide memo no.393 dated 18th October, 2017 and memo no.266

dated 1st September, 2018 respectively but the rest due amount to the

extent of Rs.9,45,000/- was kept pending.

It has also been reported that an enquiry committee was constituted

vide memo no.16 dated 17th January, 2020 under the Chairmanship of the

District Transport Officer, Lohardaga and the said committee submitted its

report as contained in letter no.34 dated 22nd January, 2020 to the effect

that 32 cameras were working whereas 40 cameras were not working.

The Deputy Development Commissioner, Lohardaga-respondent no.3,

vide letter no.186 dated 20th June, 2020, has directed the writ petitioner to

make all the CCTV cameras functional within ten days, failing which, on

the ground of violation of Request for Proposal (RFP) as well as the work

order dated 21st October, 2016, the work would be considered as

substandard and the remaining amount would not be paid by forfeiting the

security deposit as well. The writ petitioner vide letter dated 22nd May,

2020 denied all the allegations and stated that all the CCTV cameras were

functioning properly at the time of installation and in the report dated 19th

December, 2017 submitted by the District Informatics Officer, Lohardaga

as well as the joint enquiry report of District Transport Officer, Lohardaga,

Deputy Superintendent of Police (HQ), Lohardaga and District Informatics

Officer, Lohardaga vide letter no.266 dated 1st September, 2018, wherein,

it was mentioned that all the cameras were found as per the technical

specification. It was also stated that the physical damage and theft of the

CCTV cameras by the anti-social elements during rally in relation to CAA

protest was not covered under warranty and as such the writ petitioner

requested the respondent no.3 to provide all stolen and damaged items

and to release the balance agreement amount, informing that all the

CCTV cameras would be repaired thereafter. However, concerned

respondent i.e., respondent no.2 without considering the request of the

writ petitioner, blacklisted it vide order as contained in memo no.220 dated

08th June, 2020 and its earnest money deposit of Rs.3 lakhs was

forfeited, moreover, the balance amount of Rs.9,45,000/- was also not

ordered to be paid.

The writ petitioner, in consequence thereof, has approached this

Court by filing the writ petition being W.P.(C) No.1592 of 2020 under

Article 226 of the Constitution of India.

The learned Single Judge, having heard the concerned parties, has

disposed of the writ petition by quashing the order of blacklisting on the

ground that the order of blacklisting is for indefinite period, however, with a

liberty to the authority to take fresh steps towards blacklisting/debarment

of the writ petitioner following the principles of natural justice but has

refused to interfere for disbursement of the security amount of Rs.3 lakhs

and payment of the balance agreement amount of Rs.9,45,000/- by

granting liberty to the writ petitioner to take appropriate recourse against

the same as permissible under the Law, which is the subject matter of the

present intra-court appeal.

Learned counsel for the appellant writ petitioner, in course of

argument, has confined prayer only pertaining to refusal to issue a

direction upon the concerned respondent to disburse the amount

pertaining to security deposit and the amount in lieu of the work performed

by the writ petitioner. However, he is not satisfied with the order of the

learned Single Judge pertaining to quashing of the order of blacklisting

with a liberty to the authority to proceed in accordance with Law following

the principles of natural justice.

3. Mr. Ravi Prakash Mishra, learned counsel appearing for the

appellant writ petitioner, has submitted that the learned Single Judge has

not considered the fact about the specific report submitted by the District

Informatics Centre, Lohardaga, whereby and whereunder, it has been

reported that the entire work was completed as per the specification of the

tender. But without considering the aforesaid report, the claim of the writ

petitioner has been rejected on the garb of the fact that the issue pertains

to money claim being disputed by the respondent, there cannot be any

direction by the writ Court sitting under Article 226 of the Constitution of

India in a case of disputed money claim .

According to the learned counsel for the appellant writ petitioner,

once the report has been submitted by the District Informatics Centre, the

money claim cannot be said to be a disputed one but the learned Single

Judge has failed to appreciate this aspect of the matter.

4. Mr. Gaurang Jojodia, learned AC to SC-I appearing for the

respondent State of Jharkhand has defended the order passed by the

learned Single Judge by making submission that there is no error in the

order impugned as because the learned Single Judge has considered the

subsequent report, whereby and whereuner, it transpires to the authority

that the writ petitioner has not completed the entire work so far it relates to

installation of CCTV camera which was 72 in numbers rather the writ

petitioner has only installed 32 CCTV cameras leaving apart 40 CCTV

cameras and therefore, learned Single Judge has considered these

aspects of the matter is correct in coming to the conclusion that there

cannot be any direction by way of mandamus sitting under Article 226 of

the Constitution of India for release of security amount and the amount

pertaining to the work performed by the writ petitioner as claimed.

He further submits that in case, the money claim is in dispute, there

cannot be any direction by the writ Court sitting under Article 226 of the

Constitution of India, it is for the reason that the same requires

adjudication by leading evidence which is not possible under a summary

proceeding like Article 226 of the Constitution of India and therefore, the

order passed by the learned Single Judge requires no interference.

5. We have heard the learned counsel for the parties, perused the

documents available on record as also the finding recorded by the learned

Single Judge.

6. This Court, at the outset, on consideration of the submission made

by the learned counsel appearing for the appellant writ petitioner that the

main grievance in the present appeal is for refusal of the prayer of the writ

petitioner pertaining to disbursement of the amount of the security deposit

and release of the amount in lieu of the work performed by the writ

petitioner and therefore, is only proceeding to examine the legality and

propriety of the said part of the order passed by the learned Single Judge.

The fact leading to this case is that the writ petitioner has

participated in the process of bid which was issued by the competent

authority of the District of Lohardaga for installation of 72 CCTV cameras.

The writ petitioner claims to have installed 72 CCTV cameras but when

the amount has not been disbursed even in spite of the submission of bid

as also the amount pertaining to security deposit, therefore, the claim has

been made and in pursuant thereto, the claim of the writ petitioner has

been disputed but however, the District Informatics Centre has submitted

its report, wherein, the work of the writ petitioner has found to be in

completion as per the work of specification as stipulated under the tender

document but in the subsequent report, it has been stated that out of 72

CCTV cameras, only 32 CCTV cameras have been installed leaving apart

40 CCTV cameras.

The said aspect of the matter was brought to the notice of the

learned Single Judge by way of counter affidavit and taking into

consideration the said aspects of the matter, the learned Single Judge

considering the fact that under Article 226 of the Constitution of India there

cannot be any mandamus in case of disputed money claim, has refused to

pass any positive direction in favour of the writ petitioner, however, liberty

has been granted to the writ petitioner to agitate the said issue as

permissible under the Law.

7. It is the settled position of Law that the money claim which is

undisputed, there cannot be any hesitation in issuing direction by the High

Court sitting under Article 226 of the Constitution of India but the matter

would be quite different if the claim is disputed by the concerned

respondent and in such situation, there cannot be any direction by the writ

Court under Article 226 of the Constitution of India to issue direction upon

the State authority to release the said amount. It is for the simple reason

that in case of disputed money claim it requires adjudication by leading

and then appreciation of evidence which is not permissible under Article

226 of the Constitution of India rather the appropriate Forum would be

competent court of civil jurisdiction where the evidence, if led, can well

be considered for reaching to the rightful conclusion as has been held by

the Hon'ble Apex Court in Haryana Urban Development Authority and

Anr. Vrs. Anupama Patnaik, (2000) 10 SCC 649. Relevant passage is

extracted from the aforesaid judgment and reproduced as under :-

"3. It is rather strange that a simple claim for money was made in a writ petition and was entertained by the High Court and allowed. There are several disputed questions of fact. Each party is alleging that the other party is guilty of violation of the terms of the allotment. The matter is not covered by any statutory provisions. The writ petition itself was misconceived and not ought to have been entertained. Accordingly, this appeal is allowed and the judgment of the High Court is set aside. No costs."

Further, in Punjab National Bank and Ors. Vrs. Atmanand Singh

and Ors., (2020) 6 SCC 256, at paragraph-22 it has been held as under:-

"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 party concerned 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."

This Court, after applying the aforesaid principle as laid down by the

Hon'ble Apex Court has considered the facts of the given case, wherein,

even though in the first report it has been submitted that the writ petitioner

has completed work but in the subsequent report it transpires that out of

72 CCTV cameras, only 32 CCTV cameras were installed leaving apart 40

CCTV cameras and therefore, the aforesaid fact clearly disputes the claim

of the writ petitioner and as such, in such circumstances, it would not be

appropriate for the writ Court in exercise of power conferred under Article

226 of the Constitution of India to issue direction upon the State authority

to disburse the amount either pertaining to security deposit or in lieu of the

work performed by the concerned party.

8. The argument which has been advanced on behalf of the learned

counsel for the appellant putting reliance upon the first report even upon

the same, no relief can be granted taking into consideration the

subsequent report which is incomplete wherein it has been reported that

out of 72 CCTVs, only 32 CCTVs have been installed and rest CCTVs

have not been installed. However, the same has been disputed by the writ

petitioner by taking the plea that all 72 CCTVs were installed but in the

CAA protest the same has been destroyed and there is no condition in the

agreement to maintain the CCTVs after installation. But upon this also, no

relief can be granted for the reason that the same also requires

adjudication by going through the terms and conditions and to corroborate

the fact as to whether the rest 40 CCTVs claimed to have been not

installed were actually installed or not and hence, the adjudication requires

appreciation of evidence.

9. Learned Single Judge after considering the aforesaid settled legal

position where the claim of the writ petitioner has been disputed, is correct

in coming to the conclusion that there cannot be any direction by the writ

Court under Article 226 to direct the respondent State to release the said

amount.

10. This Court, on the basis of the discussion made hereinabove as

also after going through the proposition laid down by the Hon'ble Apex

Court as referred above, is of the view that the order passed by the

learned Single Judge requires no interference.

11. In the result, the instant appeal fails and is dismissed.

12. Pending Interlocutory Application(s), if any, stand disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.)

Rohit/-A.F.R.

.