Jharkhand High Court
Pinki Kumari vs The State Of Jharkhand on 22 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 834 of 2020
With
W.P.(C) No. 815 of 2020
With
W.P.(C) No. 835 of 2020
With
W.P.(C) No. 846 of 2020
With
W.P.(C) No. 1014 of 2020
With
W.P.(C) No. 1057 of 2020
With
W.P.(C) No. 1143 of 2020
With
W.P.(C) No. 1144 of 2020
Pinki Kumari ... ... Petitioner
[In W.P.(C) No. 834/2020]
Babita Devi ... ... Petitioner
[In W.P.(C) No. 815/2020]
Arti Devi ... ... Petitioner
[In W.P.(C) No. 835/2020]
Lalita Devi ... ... Petitioner
[In W.P.(C) No. 846/2020]
Nutan Sinha ... ... Petitioner
[In W.P.(C) No. 1014/2020]
Binod Singh @ Binod Kumar Singh ... ... Petitioner
[In W.P.(C) No. 1057/2020]
Purnima Devi ... ... Petitioner
[In W.P.(C) No. 1143/2020]
Pappu Kumar ... ... Petitioner
[In W.P.(C) No. 1144/2020]
Versus
1. The State of Jharkhand
2. The Secretary, Rural Development Department (Panchayati Raj),
Jharkhand, Ranchi
3. The Deputy Commissioner, Hazaribagh
4. The District Panchayati Raj Officer, Hazaribagh
5. The Certificate Officer-cum-Sub-Divisional Officer, Barhi, Hazaribagh
6. The Block Development Officer, Chouparan, Hazaribagh
... ... Respondents
[In all the writ petitions]
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
-----
For the Petitioner : Mr. Rajeev Kumar Sinha, Advocate
Mr. Vishnu Kumar Mahto, Advocate
For the Respondents : Mr. Rahul Saboo, GP-II
Mr. Kunal Chandra Suman, AC to GP-II
Mr. Saurav Mahto, AC to GP-II
Mr. Shashank Shekhar, AC to AAG-V
Mr. Binit Chandra, AC to AAG-III
Mr. Shivam Anand Pathak, AC to SC-III
Mr. Vineet Prakash, AC to SC-IV
-----
Order No. 10 Dated: 22.08.2023
W.P.(C) No. 834 of 2020 has been filed for quashing
Certificate Case No. 57/2019 instituted under Section 5 of the Bihar
and Orissa Public Demands Recovery Act, 1914 (hereinafter referred
to as "the Act, 1914") pending in the court of the respondent no. 5 -
the Certificate Officer-cum-Sub-Divisional Officer, Barhi, Hazaribagh
as well as the impugned show cause notice dated 22.01.2020 issued
under Section 7 of the Act, 1914 to the petitioner in the said
certificate case for recovery of an amount of Rs.5,32,032/-.
2. W.P.(C) No. 815 of 2020 has been filed for quashing
Certificate Case No. 68/2019 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned show cause notice dated 22.01.2020 issued under Section
7 of the Act, 1914 to the petitioner in the said certificate case for
recovery of an amount of Rs.5,10,192/-.
3. W.P.(C) No. 835 of 2020 has been filed for quashing
Certificate Case No. 39/2019-20 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned show cause notice dated 23.11.2019 issued under Section
7 of the Act, 1914 to the petitioner in the said certificate case for
recovery of an amount of Rs.2,12,960/-.
4. W.P.(C) No. 846 of 2020 has been filed for quashing
Certificate Case No. 52/2019 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned show cause notice dated 22.01.2020 issued under Section
7 of the Act, 1914 to the petitioner in the said certificate case for
recovery of an amount of Rs.4,22,496/-.
5. W.P.(C) No. 1014 of 2020 has been filed for quashing
Certificate Case No. 36/2019-20 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned show cause notice dated 23.11.2019 issued under Section
7 of the Act, 1914 to the petitioner in the said certificate case for
recovery of an amount of Rs.5,06,396/-. Further prayer has been
made for quashing the letter as contained in memo no. 1207 dated
20.07.2019 issued by the respondent no. 6 - the Block Development
Officer, Chouparan, Hazaribagh to the petitioner as well as 'Mukhiya'
of twenty four panchayats situated within Block-Chouparan, whereby
they along with the petitioner have been asked to deposit the excess
amount incurred in purchasing solar street lights in block Nazarat
within 2 days as per the detailed chart annexed with the said letter,
failing which certificate case would be instituted for recovery of the
said amount.
6. W.P.(C) No. 1057 of 2020 has been filed for quashing
Certificate Case No. 53/2019 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned show cause notice dated 22.01.2020 issued under Section
7 of the Act, 1914 to the petitioner in the said certificate case for
recovery of an amount of Rs.1,40,832/-. The petitioner has also
challenged the aforesaid letter as contained in memo no. 1207 dated
20.07.2019 issued by the respondent no. 6.
7. W.P.(C) No. 1143 of 2020 has been filed for quashing
Certificate Case No. 37/2019-20 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned show cause notice dated 23.11.2019 issued under Section
7 of the Act, 1914 to the petitioner in the said certificate case for
recovery of an amount of Rs.3,99,897/-. The petitioner has also
prayed for quashing the aforesaid letter as contained in memo no.
1207 dated 20.07.2019 issued by the respondent no. 6.
8. W.P.(C) No. 1144 of 2020 has been filed for quashing
Certificate Case No. 43/2019 instituted under Section 5 of the Act,
1914 pending in the court of the respondent no. 5 as well as the
impugned notice dated 23.11.2019 issued under Section 7 of the Act,
1914 to the petitioner in the said certificate case for recovery of an
amount of Rs.3,96,384/- as well as has put challenge to the aforesaid
letter as contained in memo No. 1207 dated 20.07.2019 issued by the
respondent no. 6.
9. Learned counsel for the petitioners submits that the
petitioners are 'Mukhiya' of different panchayats situated within
Chouparan Block of District-Hazaribagh. It is further submitted that in
compliance of the direction as contained in letter no. 1010 dated
17.03.2016 issued by the Director-cum-Special Secretary, Rural
Development Department (Panchayati Raj), Government of
Jharkhand to all District Panchayati Raj Officers of Jharkhand, also
communicating the copies of the said letter to all Deputy
Commissioners/Deputy Development Commissioners-cum-C.E.O, Zila
Parishads, Jharkhand, solar street lights were required to be installed
at several places of respective panchayats for making proper lighting
arrangement in villages utilizing the fund granted under 14th Finance
Commission. In the said process, 'Gram Sabha' were held in
respective panchayats and after approval of the said scheme,
quotations from different suppliers and agencies were invited. On
consideration of the quotations of the suppliers and after verifying
the quality and reasonability of cost, the petitioners along with
Panchayat Secretaries of the respective panchayats purchased solar
street lights as per their requirement.
10. It is also submitted that the petitioners purchased solar
street lights with full transparency following the applicable rules and
regulations, however, as per the respondent no. 2 - the Secretary,
Rural Development Department (Panchayati Raj), Jharkhand, the real
cost of the said solar street lights per unit should have been
Rs.16,852/- i.e., the price fixed by Jharkhand Renewable Energy
Development Agency (JREDA). Accordingly, the respondent no. 2
directed the respondent no. 6 for recovery of differential amount paid
in excess from the 'Mukhiya' of all twenty four panchayats situated
within Chouparan Block including the present petitioners. Thereafter,
the respondent no. 6 prepared a chart and issued letters to the
petitioners vide impugned memo no. 1207 dated 20.07.2019 for
recovery of the differential amount mentioned in the said chart.
11. It is further submitted that the petitioners brought the
relevant documents to notice of the respondent authorities, however,
they instituted the certificate cases against them in a mechanical
manner and further issued the impugned notices under Section 7 of
the Act, 1914 in the respective certificate cases for recovery of the
alleged amount. On bare perusal of price fixed vide letter dated
17.03.2017 by the Ministry of New & Renewable Energy (MNRE),
Government of India, it would be evident that revised benchmark
cost of solar street light has been fixed as Rs. 340/- per watt peak
(Wp) and since each solar street light purchased in the concerned
panchayats was of 100 watt peak (Wp), its price would come to
Rs. 34,000/- per unit excluding VAT and transportation.
12. It is also submitted that the payment for purchase of solar
lights were made through cheques signed by both 'Mukhiya' and
Panchayat Secretary and the amount was directly credited in the
account of the suppliers. Under the said circumstance, the petitioners
cannot be held liable for any excess payment made to the suppliers.
13. Learned counsel further contends that Mukhiya of one of
the panchayats of Chouparan Block made an application under Right
to Information Act, 2005 before the respondent no. 6 seeking several
documents concerning with the guidelines for installing solar street
lights, however, the same were not supplied on the pretext that those
were not available in the block office. This clearly indicate that no
specific guideline was issued for 'Mukhiya' of the concerned
panchayats with respect to purchase/installation of solar street lights.
14. It is also submitted that the respondent no. 2 vide letter
no. 889 dated 09.03.2017 asked all Deputy Commissioners,
Jharkhand, Deputy Development Commissioners-cum-Chief Executive
Officers, Zila Parishad, Jharkhand to form committee under the
Chairmanship of Deputy Commissioner with regard to fixing uniform
rate of articles to be purchased in panchayats. Thus, there was no
specific guidelines for purchase of solar street lights in the year 2016
i.e., the period during which the same were purchased by the
petitioners, rather the government subsequently vide letter dated
09.03.2017 directed the district authorities to form a committee for
the said purpose. Moreover, the amount mentioned in the certificate
cases is not a public demand, as the said dues are not properly
ascertained. Hence, the certificate cases instituted against them for
recovery of the alleged amount are not tenable. Further, the payment
for purchase of the solar lights was made in the year 2016 and the
impugned notices with regard to the certificate cases were issued to
the petitioners after more than three years.
15. On the contrary, learned counsel for the respondents
submits that the petitioners purchased the solar street lights without
verifying the benchmark cost of the units prescribed by the
government agency i.e., Jharkhand Renewable Energy Development
Agency (JREDA) and they imprudently decided to purchase the solar
street light units at approximately double the approved rate and
thereby caused monetary loss to the government exchequer. The
petitioners were asked to reply to the show cause notices relating to
financial irregularities committed during purchase of the solar street
lights, however, they failed to respond the same and as such, the
respondent no. 4 - the District Panchayati Raj Officer, Hazaribagh
issued letter no. 40 dated 10.01.2019 to the respondent no. 6 asking
him to recover the excess amount paid in purchase of solar street
lights from 'Mukhiya' of all the panchayats situated within Chouparan
Block.
16. It is further submitted that in the case in hand, the
dispute is with respect to purchase of solar street lights utilizing the
fund granted under 14th Finance Commission i.e., provided from the
exchequer of the Government of India through the Panchayati Raj
Department to the concerned panchayats of Chouparan Block which
falls within the ambit of public money. Thus, the same has to be
recovered under the provisions of the Act, 1914. The certificate
proceedings initiated against the petitioners are valid in law as the
post of 'Mukhiya' comes under the category of public servant as per
Section 142 of the Jharkhand Panchayat Raj Act, 2001 (hereinafter
referred to as "the Act, 2001") which clearly states that every office
bearer of panchayat and its every officer or servant shall be
considered 'Public Servant' defined under Section 21 of the Indian
Penal Code. Moreover, Section 108 of the Act, 2001 makes it clear
that every member, office-bearer or servant of a Gram Panchayat
including 'Mukhiya' shall be personally liable for the loss or
misappropriation of any fund. There is also a provision for recovery to
compensate the said loss or misappropriated amount.
17. It is also submitted that Para 2.13.8 of the Guidelines for
Gram Panchayat Development Project issued by the Rural
Development Department (Panchayati Raj), Government of
Jharkhand vide notification no. 1010 dated 23.03.2017 clearly
provides that for execution of various schemes, the technical
materials like solar street lights etc. have to be purchased only from
the government agency i.e., JREDA. However, ignoring the said
direction, the petitioners purchased the said solar street lights from
the open market at exorbitant rate.
18. It is further submitted that Para-3 of Schedule 1 of the
Act, 1914 provides that any money which is declared by any law for
the time being in force to be recoverable or realizable as an arrear of
revenue or land revenue or by the process authorized for the
recovery of arrears of revenue or of the public revenue or of
government revenue, is a public demand. Section 108 of the Act,
2001 states that every member, office bearer, officer or servant of a
Gram Panchayat, Panchayat Samiti and Zila Parishad shall be
personally responsible for any loss, wastage or misappropriation of
any money or property belonging to them which will be recovered by
the prescribed authority. Otherwise also, the petitioners have
alternative/statutory remedy of appeal under Section 60 of the Act,
1914 and without exhausting the said statutory remedy, they have
filed the present writ petitions and as such, the same are liable to be
dismissed.
19. Heard learned counsel for the parties and perused the
materials available on record. The petitioners have challenged
initiation of certificate proceedings against them for recovery of the
excess amount allegedly paid while purchasing the solar street lights
from the funds of 14th Finance Commission as well as the impugned
notices issued to them under Section 7 of the Act, 1914 in the
respective certificate cases. Some of the petitioners have also
challenged memo no. 1207 dated 20.07.2019 issued by the
respondent no. 6, whereby they along with others have been directed
to deposit the excess payment made in purchase of the solar street
lights.
20. Learned counsel for the petitioners has contended that at
the time of purchase of the solar street lights, there were no
rules/regulations/ guidelines in vogue and the petitioners have
purchased the solar street lights by inviting quotations from different
suppliers and as such, they have maintained transparency while
purchasing the same.
21. Per contra, learned counsel for the respondents has
submitted that the solar street lights have been purchased by the
petitioners at approximately double the rate approved by JREDA and
as such, they have misused the public fund which is liable to be
recovered from them.
22. Learned counsel for the respondents has put reliance on
the judgment rendered by this Court in the case of "Pintu Rani Vs.
The State of Jharkhand & Ors." reported in 2020 SCC OnLine
Jhar 820, wherein the petitioner of that case who was Mukhiya of
Adra Gram Panchayat, Hazaribagh and had put challenge to the order
of the District Panchayat Raj Officer, Hazaribagh, whereby recovery of
Rs.3,77,016/- was sought to be made from her alleging that she had
purchased the solar street lights at a higher rate than prescribed by
the JREDA without following the procedure specified by the
Department of Finance, Government of Jharkhand. The said writ
petition was dismissed by this Court observing as under:
7. Learned counsel for the respondent-State has put
reliance on resolution no. 221 dated 03.02.2011
issued by the Department of Finance, Government of
Jharkhand and has submitted that in view of the said
resolution, if the purchase was to be made having
value of more than 1,50,000/-, the petitioner was
required to invite tender by way of making publication
in daily newspaper. However, the said resolution was
not followed by her. The applicability of the said
resolution has not been put in question by the learned
counsel for the petitioner, however it has been
submitted that the said violation is not intentional as
she was not made aware of the said resolution by the
state authorities.
8. In the case of Nagar Nigam Vs. Al Faheem Meat
Exports (P) Ltd. reported in (2006) 13 SCC 382, the
Hon'ble Supreme Court has held as under:
"The law is well settled that contract by the
State, its corporations, instrumentalities and
agencies must be normally granted through
public auction/public tender by inviting tenders
from eligible persons and the notification of the
public auction or inviting tenders should be
advertised in well-known dailies having wide
circulation in the locality with all relevant details
such as date, time and place of auction, subject-
matter of auction, technical specifications,
estimated cost, earnest money deposit, etc. The
award of government contracts through public
auction/public tender is to ensure transparency
in the public procurement, to maximise economy
and efficiency in government procurement, to
promote healthy competition among the
tenderers, to provide for fair and equitable
treatment of all tenderers, and to eliminate
irregularities, interference and corrupt practices
by the authorities concerned. This is required by
Article 14 of the Constitution. However, in rare
and exceptional cases, for instance during
natural calamities and emergencies declared by
the Government; where the procurement is
possible from a single source only; where the
supplier or contractor has exclusive rights in
respect of the goods or services and no
reasonable alternative or substitute exists; where
the auction was held on several dates but there
were no bidders or the bids offered were too
low, etc., this normal rule may be departed from
and such contracts may be awarded through
"private negotiations". (see Ram and Shyam Co.
v. State of Haryana [(1985) 3 SCC 267: AIR 1985
SC 1147].) .
18. The law is, thus, clear that ordinarily all
contracts by the Government or by an
instrumentality of the State should be granted
only by public auction or by inviting tenders,
after advertising the same in well-known
newspapers having wide circulation, so that all
eligible persons will have an opportunity to bid in
the bid (sic auction), and there is total
transparency. In our opinion this is an essential
requirement in a democracy, where the people
are supreme, and all official acts must be
actuated by the public interest, and should
inspire public confidence."
9. It is thus well settled that ordinarily the State
instrumentalities should not give contracts on the
basis of private negotiations, rather the same should
be done by way of open public auction/tender on wide
publicity. The purpose behind this is to maintain
transparency in public purchase on competitive rate.
10. Coming back to the present writ petition, learned
counsel for the petitioner has tried to convince the
Court that violation of the resolution dated 03.02.2011
issued by the Department of Finance, Government of
Jharkhand was not intentional, rather the same was
due to ignorance of the petitioner as she was never
made aware of the said resolution. I do not find any
substance in the said contention of the learned
counsel for the petitioner. Since the petitioner being
the Mukhiya was holding a statutory post, it was
expected from her that she would know the
manner/procedure in which public purchase was to be
made while exercising the financial powers. Moreover,
the stand of the respondent-State is that the
petitioner by making purchase of 24 solar street lights
from a private dealer on higher rate than prescribed
put the state exchequer to loss.
12. One of the contentions of the learned counsel for
the petitioner is that the procurement of solar street
lights has been made at a reasonable rate by inviting
quotation from three different dealers. On the
contrary, the contention of the learned counsel for the
State respondent is that the petitioner made purchase
of solar street lights @ Rs.31,900/- per unit i.e. much
higher than the rate fixed by JREDA i.e. @ Rs.16,191/-
per unit and thereby the petitioner caused revenue
loss to the State exchequer. In my view, the matter
regarding public purchase is to be considered strictly
by the Court. The petitioner by giving examples of
purchase of solar street lights in different districts on
the higher rates cannot justify the purchase of
concerned solar street lights @ Rs.31,900/-
particularly when she admittedly did not follow the
resolution dated 03.02.2011 issued by the Department
of Finance, Government of Jharkhand.
23. Learned counsel for the respondents has also relied upon
another judgment of this Court rendered in the case of "Ashok Das
Vs. The State of Jharkhand & Ors." [W.P.(C) No. 6543 of
2019], wherein the Mukhiya and Panchayat Secretary of Shankardih
Panchayat under Dumri Block within Giridih District were directed to
deposit the differential amount of purchasing the solar street lights
out of the fund given under 13/14th Finance Commission. In the said
case, it was held as under:
"Be that as it may. The fact remains that an
enquiry has already been conducted by the Sub-
Divisional Officer, Dumri, Giridih in which different
Panchayats under Dumri Block (Giridih District) have
been issued similar letters for depositing the excessive
expenditure made for purchasing the street solar
lights. I find substance in the submission of learned
A.C to A.G appearing on behalf of the State of
Jharkhand that it is a case of misappropriation of
Government fund. Hence, I am not inclined to exercise
the extraordinary writ jurisdiction in the present case
which otherwise is plenary in nature."
24. The facts and circumstances of the present case are
similar to the cases cited by learned counsel for the respondents. In
the present case also, it is an admitted position that open tender was
not invited by the petitioners while purchasing the solar street lights
and thus, they violated the resolution of the Finance Department,
Government of Jharkhand issued vide letter no. 221 dated
03.02.2011, whereby administrative and financial power of Head of
all the departments conferred under Rule 235 and 241 of the Bihar
(now Jharkhand) Finance Rules was amended to the effect that they
were not required to publish tender having value up to Rs.1,50,000/-
in the newspaper, rather such tender was to be published on the
notice board, however, if the purchase was to be made having value
of more than Rs.1,50,000/-, there was requirement of inviting tender
by making publication in daily newspaper.
25. The petitioners have claimed that the solar street lights
were purchased at a reasonable rate, however, this Court is of the
view that since the petitioners did not invite tender, they violated the
settled procedure of granting contract by the State agencies. The
purpose of notification of the public auction or inviting tenders is to
ensure healthy competition, transparency in grant of public contract,
to provide fair and equitable treatment to all tenderers and to
eliminate irregularities, interference and corrupt practices by the
authorities concerned. Thus, even if the argument of learned counsel
for the petitioners to the extent that notification no. 1010 dated
23.03.2017 relied upon by the respondents came in existence after
purchase of the solar street lights by the petitioners, they were
obliged to invite the open tender for the said purchase. So far as the
challenge to the letter as contained in memo no. 1207 dated
20.07.2019 issued by the respondent no. 6 is concerned, it is evident
that before issuing the said letter, explanations were asked from the
petitioners, however, they failed to respond the same and only
thereafter the said letter was issued by the respondent no. 6 and as
such, I do not find any infirmity in issuing the said letter.
26. The petitioners have further claimed that though the
Panchayat Secretaries of the concerned panchayat were also involved
in purchase of the solar street lights, however, they have not been
held liable for the alleged excessive payment made in purchasing the
same. The petitioners have also challenged the initiation of the
certificate proceedings as well as the impugned notices issued under
Section 7 of the Act, 1914. I am of the view that the petitioners have
opportunity to reply the said notices denying their liability by taking
all available points with them which shall be decided by the
respondent no. 5 under Section 10 of the Act, 1914 and while doing
so, the said respondent may take evidence (if necessary) to
determine whether the certificate-debtors are liable for the whole or
any part of the amount for which the respective certificates have
been signed and may set aside, modify or vary the certificates
accordingly. Further, the final order as may be passed by the
respondent no. 5 is appealable under Section 60 of the Act, 1914.
Under such circumstance, I do not find any ground to entertain the
present writ petitions filed under Article 226 of the Constitution of
India.
27. The writ petitions are accordingly dismissed. The
petitioners are, however, at liberty to file their objections before the
respondent no. 5 taking all available points with them whereafter the
said objections shall be decided by the said respondent in accordance
with law.
(Rajesh Shankar, J.)
Manish/AFR
