Director Of Agriculture vs M.V.Ramachandran
2021 Latest Caselaw 19394 Ker

W.A. No. 1155/2021                   :1:

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                      &

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

      THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943

                              WA NO. 1155 OF 2021

 JUDGMENT DATED 07.04.2021 IN WP(C) 2465/2020 OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS IN W.P.(C):

     1      DIRECTOR OF AGRICULTURE
            VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.

     2      THE KERALA STATE SEED DEVELOPMENT AUTHORITY,
            AYYANTHOLE, THRISSUR, PIN-680 003, REPRESENTED BY ITS
            EXECUTIVE OFFICER, ADDITIONAL DIRECTOR OF AGRICULTURE.

     3      ADDITIONAL DIRECTOR OF AGRICULTURE,
            VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.

     4      STATE OF KERALA
            REPRESENTED BY THE SECRETARY, DEPARTMENT OF AGRICULTURE,
            SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.

            BY ADV SRI. TEK CHAND, SR. GOVERNMENT PLEADER



RESPONDENT/PETITIONER IN W.P.(C):

            M.V.RAMACHANDRAN
            AGED 61 YEARS
            S/O.VISWAMBARAN, MAMBULLI HOUSE, ANTHIKKAD.P.O, THRISSUR
            DISTRICT,PIN-680 641, PROPRIETOR OF M/S. AMS TRANSPORTS,
            ANTHIKKAD, THRISSUR.

            SRI. C.D.DILEEP

      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.09.2021, THE

         COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A. No. 1155/2021                  :2:

                                                                'CR'

                  Dated this the 16th day of September, 2021.

                                  JUDGMENT

SHAJI P. CHALY.

The appeal is preferred by the respondents in W.P.(C) No. 2465

of 2020 challenging the judgment of the learned single Judge dated

07.04.2021, whereby the writ petition was allowed and held as

follows:

11. The conditions of e-tender contained in Ext.P1 would show that the starting point of a lorry for transportation would be taken as the District Headquarters (Principal Agricultural Office) from where the seeds are loaded. The bill of the contractor should contain kilometre readings taken from the starting point and at the destination, separately. Ext.P1 would further show that the bills submitted by the petitioner should be supported by copy of a bill issued by the Authority, issue note from the godown/farm/seed- farm from where the seeds are loaded and seed receipts having seal and signature of Krishi Bhavan.

12. In fact, there is no serious dispute that invoices were sanctioned based on odometer/kilometre readings at the time when the petitioner entered into contract and up to the year 2019. The system of adopting Google map readings for calculation of distance of transportation was introduced for the first time in the year 2019 only. The amount claimed by the petitioner is in respect of transportation invoice prior to the year 2019.

13. Therefore, a system which was not in vogue at the time of entering into contract and which was not included in the terms

of contract between the petitioner and the 2nd respondent, cannot be imposed on the petitioner, thereby denying him his dues in terms of the contract. Since the relation between the petitioner and the 2nd respondent is contractual, any general decision taken by the respondents cannot be thrust upon the petitioner and that too retrospectively.

In the circumstances, the writ petition is allowed and Exts.P7, P10 and P11 are set aside. Respondents 1 and 2 are directed to settle the bills/invoices of the petitioner on the basis of actual distance travelled as per odometer/kilometer readings and without adopting World Wide Web/Google Map for calculation of distance. Balance amount payable shall be disbursed to the petitioner within a period of one month."

2. Material facts for the disposal of the appeal are as follows:

The writ petitioner was a successful bidder in Ext. P1 e-tender

dated 29.01.2015 for transportation of paddy seed in lorries from seed

processing centres of Padaseksharam Samithi (Association of paddy

fields), farms, go-downs under various krishi bhavans to various

krishibhavans and Padasekharam Samithi (associations of paddy

fields) on hire. Admittedly, the writ petitioner has successfully carried

out the contract during the period 2015-2016 and he submitted the

bills for payment. So also, the Kerala State Seed Development

Authority--2nd appellant extended the period further based on the

judgment of this Court in W.P.(C) No. 14124 of 2016 and issued a new

work order, evident from Ext. P3 dated 21.04.2016. Altogether, the

writ petitioner has submitted 37 invoices with connected way bills and

documents. As per the invoices, an amount of Rs. 1,45,19,629.40 was

due to the writ petitioner. However, the second respondent sanctioned

only an amount of Rs.1,25,50,732.35 without assigning any reason for

the deduction of the amount. Therefore, according to the writ

petitioner, an amount of Rs.20,68,897.05 is remaining due to the writ

petitioner.

3. The case of the writ petitioner is that in spite of submission of

several representations, produced as Ext. P5, the appellants have not

taken any action to ventilate the grievances and accordingly, the writ

petitioner has approached this Court and secured Ext. P6 judgment

dated 25th January, 2019 in W.P.(C) No. 2278 of 2019, whereby the

writ court directed the second appellant to consider Ext. P6

representation after hearing the writ petitioner also. Accordingly, the

second appellant conducted hearing on 20.03.2019 and 18.05.2019;

however, the claim of the petitioner was rejected, evident from Ext.

P7. Against Ext. P7 order, the writ petitioner has submitted Ext. P8

appeal before the Director of Agriculture--the first appellant and

consequent to the delay in considering the same, the writ petitioner

again approached this Court by filing W.P.(C) No. 16447 of 2019 and

secured Ext. P9 judgment, whereby the writ court directed the first

appellant to take a decision within three weeks from the date of

receipt of a copy of the judgment. The Director, however, dismissed

the appeal as per Ext. P10 order dated 01.10.2019 and later Ext. P11

order dated 10.10.2019 was also passed. It was, thus, challenging the

proceedings of the appellants that the writ petition was filed.

4. The basic contention advanced in the counter affidavit was

that as per Ext. P12, e-tender notice for transportation of paddy seeds

of the very same authority for the year 2019-2020 dated 11.06.2019,

payments for the services rendered would be made after the security

scrutiny of the bills. It is also specified in Ext. P12 that wherever there

are no variations in the kilometers claimed by the successful bidder

and that of the kilometers displayed by the Google maps, such

amounts were given to the successful bidder in full. Therefore, the

sum and substance of the contentions advanced by the appellants was

that the appellants were liable to pay amounts to the writ petitioner as

per the kilometers displayed by the Google maps and therefore, the

writ petitioner has not made out any case for interference in the writ

jurisdiction, since the action of the appellants were in accordance with

law.

5. However, learned single Judge, after considering the rival

submissions, has arrived at the conclusion that there is no serious

dispute that invoices were sanctioned based on odometer/kilometer

readings at the time when the writ petitioner entered into the contract

and up to the year 2019 and further that the system of adopting

Google map readings for calculation of distance of transportation was

introduced for the first time in the year 2019 only. Accordingly, it was

held that since the contract entered into by and between the writ

petitioner, and the transportation was done prior to the year 2019, the

terms and conditions of the contract entered into by the second

appellant and the writ petitioner would govern the field and it was,

accordingly, that the impugned orders were set aside and directed

appellants 1 and 2 to settle the bills/invoices of the writ petitioner on

the basis of the actual distance travelled as per odometer/kilometer

readings and without adopting world wide web/Google map for

calculation of distance.

6. The paramount contention advanced in the writ appeal is

that the factual aspects involved in the writ petition required an

adjudication on merits by a competent civil court, which was omitted

to be taken note of by the learned single Judge; that the learned single

Judge failed to note that the reliefs sought for by the writ petitioner

was for enforcement of a contractual obligation i.e., payment of a

disputed amount which cannot be enforced through Article 226 of the

Constitution of India; that the Government have not admitted its

liability and therefore, the learned single Judge was not right in

directing appellants 1 and 2 to settle the bills/invoices of the writ

petitioner on the basis of actual distance travelled as per

odometer/kilometer readings; and that the issue as to whether the

writ petitioner is entitled to the amount claimed, can be identified only

after a detailed examination of the terms of the contract and the

evidence as to the actual distance travelled by the vehicle transporting

the goods.

7. We have heard the learned Senior Government Pleader Sri.

Tek Chand for the appellants, and Adv. Sri. C.D. Dilip for the

respondent/ writ petitioner, and perused the pleadings and materials

on record.

8. Learned Senior Government Pleader addressed arguments on

the basis of the submissions discussed above. Awarding of contract to

the writ petitioner, subsequent work order and the execution of the

agreement are all admitted factors. Ext. P1 is the notice inviting tender

dated 29.01.2015 and the clauses 2 and 3 of the terms and conditions

of the contract prescribe the manner in which the distance is to be

calculated. Clause 2 specifies that the departure place of the lorry is

treated to be the District Headquarters (Principal Agriculture Office) of

that place from where the paddy seed is loaded in the lorry, and clause

3 unequivocally states that the kilometers between the departure place

and the arrival place of the vehicle shall be particularly written in the

bill.

9. Ext. P2 agreement executed by and between the parties also

deals with the manner in which the payments are to be effected.

Covenant No. 6(a) specifies that the tenderer agrees that the final

payment will be made only on production of tax clearance certificate

relating to agriculture tax, sales tax and income tax by the tenderer.

Covenant 6(b) specifies that all payment to the tenderer for the

service rendered by him will be made after security scrutiny of his

bills. It is an admitted fact that writ petitioner has submitted the bills

in accordance with the terms and conditions of the notice inviting

tender and the agreement executed by and between the parties.

Admittedly, invoices submitted by the writ petitioner are relating to a

period prior to Ext. P12 e-tender notice specification for transportation

of paddy seeds dated 11.06.2019 and therefore, the said tender

conditions cannot be construed to be binding on the writ petitioner,

who has executed an agreement on the basis of the Ext. P1 notice

inviting tender dated 29.01.2015.

10. The appellants have also no case that the invoices were not

submitted on the basis of the distance calculated in accordance with

the conditions contained under the notice inviting tender and the

agreement executed by and between the parties. We are of the clear

opinion that the appellants are not entitled to rely upon Ext. P12

tender conditions dated 11.06.2019, wherein alone the condition that

irrespective of the actual route undertaken, shortest possible/feasible

route and truck motorable only will be considered for the calculation of

distance, apart from other conditions. For the sake of convenience,

clause No. 14 contained in the e-tender notice dated 11.6.2019 is

extracted hereunder:

14.00. Irrespective of the actual route undertaken, shortest possible/ feasible route and truck motorable only will be considered for the calculation of distance. Also if a full load is to be delivered in parts at different destinations, only such portion of the paddy seeds actually transported on different sections of the route will be considered. Accordingly, there will be no payment for idle running. The KSSDA reserves the right to check the distance claimed by the transporter through suitable means [like verification through various distance calculators available in the world wide web internet]. The actual travel distance will be calculated as the distance travelled from the point of loading to the point of last delivery through the shortest for each truck load. lf further distance has been run; for example from the point of delivery [Krishi-Bnavan to the concerned unloading place of

Padasekhara Samithy of the Krishi Bhavan, a certificate has to be obtained from the concerned Agricultural Officer under seal and sign with regard to the additional kilometres of running. Similarly in the case of lifting of seeds from farmer's field if any additional kilometres has been done a similar certificate shall be produced from the concerned Agricultural Officer."

11. It is not in dispute that such a condition was never part of

Ext. P1 tender notification dated 29.01.2015 and the agreement dated

11th day of June, 2015 nor when the work order was extended on the

basis of the directions of the writ court earlier. To critically analyse the

said contention, we ask a question to ourselves which would be an

answer to itself. How would the amount have been calculated by the

appellants for calculating the distance, if the amount was decided to be

paid prior to 2019, when the method of calculation was changed as

above? Even though the learned Government Pleader submitted that

the writ petitioner has transported the paddy seed in small lorries and

if bigger vehicles were used, there would have been substantial

financial savings to the Government, we are unable to agree with the

said contention for the basic reason that in the notice inviting tender

or in the agreement executed, the type of vehicle to be used was

never insisted upon. To put it simply, parties to a contract are bound

by the terms and conditions of a concluded contract, which cannot be

altered by one party unilaterally to the disadvantage of the other

contracting party, and that too relying upon a document which was

never in existence at the time of execution of the agreement nor put

on notice of the party likely to be affected materially, during the period

of contract. This is more so because there is an offer and acceptance

of the terms and conditions of the contract by and between the parties

and there was a consensus ad idem, which cannot be altered unless

agreed upon by the parties mutually.

12. Taking into account the above undisputed aspects, we are of

the view, merely because a dispute is raised with respect to the

manner in which the distance is to be calculated relying upon a

subsequent tender notice, which is inconsequential to decide the issue,

the same could never have been treated as a dispute in law or facts

disabling a writ court to decide the actual issue raised, if discernible

from materials available on record. As we have pointed out above,

there is no case for the appellants that the writ petitioner has made

the calculation and submitted the bills/invoices deviating from the

conditions contained under Ext. P1 notice inviting tender and the

consequential agreement. The issue was considered by the learned

single Judge taking into account the entire pros and cons of the matter

and arrived at the conclusion that the issues raised by the writ

petitioner on the basis of Exts. P1 and P2 have no disputed factual

circumstances, thus enabling the writ petitioner to get the relief sought

for. We are in absolute agreement with the findings and the directions

issued by the learned single Judge. Therefore, we decline to grant the

relief as is sought for by the appellants. However, fact remains, the

time period of one month granted by the learned single Judge is

already over and therefore, we extend the time period for payment of

the money as directed by the learned single Judge by a month from

the date of receipt of a copy of this judgment.

Writ Appeal is accordingly disposed of with the modification of

the time period as above.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv