High Court
Case Details
WP(C) 4286/2010 BEFORE HON’BLE MR JUSTICE B. K. SHARMA By means of this writ petition the petitioner has prayed for a direction to the respondents to release the amount of Rs.24,52,248/-(Rupees twenty four lakhs fi fty two thousand two hundred forty eight) only stated to be payable to the petit ioner for execution of the contractual work pertaining to preparation and supply of Electoral Photo Identity Cards (EPIC). Prior to filing of the instant writ p etition the petitioner had also approached this Court by filing another writ pet ition being WP(C) No. 820/2007, with the same prayer. The writ petition was disp osed of by order dated 23.02.2007, with the following direction:-
Decision
(cid:28)In view of the above and as agreed to by the learned counsel for the pa rties, the writ petition is disposed of with a direction to the respondents to e xamine the claim of the petitioner and upon such examination, if, it is found th at the petitioner is entitled to the aforesaid amount of rs.24,52,248/- for the contract work, which he allegedly carried out under the respondents in terms of Annexure-1 order, the same shall be disbursed to the petitioner. The entire exer cise shall be carried out within a period of four months from the date of receip t of the certified copy of this order, which the petitioner shall furnish to the respondents along with a copy of the writ petition and its enclosures. The respondents may also verify as to whether the petitioner executed th e works in question at all if so, whether as per the specification of the work o rder and to the satisfaction of the respondents. The respondents may also examine as to whether the claim made by the pet itioner is barred by limitation. (cid:29) After the aforesaid order of this Court, Annexure-H series communication s had been made on 06.08.2007, 16.08.2007 and 25.08.2007 by the authorities, whi ch were to receive the EPIC. By the said communications, it was pointed out that the supply of EPIC (part only) was not as per the specification and that there was delay in making the supply. For a ready reference the relevant portions of t he letter, dated 06.08.2007 and 25.08.2007 are quoted below: (cid:28)The M/S Pragati Supply & Contract co-op. Society Ltd. had executed the works t otally unsatisfactory as the defects as pointed out were not removed by the firm as follows: i. ii. Miniature are not supplied in duplicate. Correction as done by this office on the Photo Identity Cards also exist in the PICs only correction has been made in some PICs by pasting small piece o Errors in respect of sex of the elector also exist in the PICs which oug f paper on the PICs. iii. ht to be Male instead of (cid:28)M (cid:29) and Female instead of (cid:28)F (cid:29). iv. The name of Constituency Karimganj North had not been corrected in place of (cid:28)N Karimganj (cid:29). v. Photo of elector pasted on the PICs horizontally in most of PICs. The Respondent (Deputy Commissioner, Karimganj) was not satisfied with the works of the Executing Firm M/S Pragati Supply & Contract Co-op. Society Ltd. in view of the facts stated above in para-3 The position of laminated PICs as delivered by M/S Pragati Supply & Contract Co- op Society Ltd. as follows. A. Total no of laminated PICs delivered -90,372 nos. B. C. Total no of error free PICs found- 29,409 nos. Total no of PICs found with Defects as pointed out in column -(ii to v)32,204 nos. TOTAL: B+C=61,613 nos. Total no of PICs found with full of error- 28,759 nos. (cid:29) D. (cid:28) It may be stated that a total no of 36,694 EPICs had been delivered by the Exe cuting Agency to the ERO 91 Hojai LAC against 80 nos of polling stations out of total of 134 nos of polling stations in respect of 91 Hojai LAC. On verification of the delivered cards as mentioned above, it is found t hat the Executing Agency had not submitted Miniature Cards as required for all t he EPICs delivered. A list indicating polling station wise no of EPICs and Minat ure Cards received from Agency is enclosed as annexure-C. The quality of the EPICs delivered appears to be as per specifications. As mentioned at Paragraph 1(one) above, the Executing Agency had failed to abide by the time frame fixed for completion of preparation of EPICs in the A greement as well as in the Work Order. (cid:29) The petitioner was entrusted with the work vide work order, dated 04.11.1995. By the said letter the petitioner was entrusted with the work of preparation and s upply of EPIC for three legislative constituencies, namely, No.3, Karimganj Nort h, 16 Haflong (ST) and 91 Hojai. The time limit for preparation and supply of EP IC was fixed on 10.12.1995 subject to extension, up to maximum period of 60 days from the date of issue of the work order. Such extension was to be granted afte r assessing the performance. Admittedly the petitioner could not prepare and sup ply the EPIC within the aforesaid time limit fixed. It is also an admitted fact that supply continued after 2002 on piece mill basis. However as noted above, th ere was no complete supply and the EPIC’s were not as per the specifications. Mr. Y.S. Mannan, learned counsel appearing for the petitioner submits that since the petitioner was allowed to make the supply, it is entitled to receive the pa yment and the respondents cannot withhold the same. On the other hand, Mr. D. Ba ruah, learned counsel representing the respondent No.2 submits that there being failure on the part of the petitioner to abide by the terms and conditions of th e contract and the conditions of the work order, there is no question of making any payment to the petitioner and that too on defective preparation and supply o f EPIC beyond the time limit fixed in the work order. He had also referred to th e above quoted order of this Court passed in 23.02.2007 in WP(C) 820/2007 by whi ch while directing the respondents to examine the case of the petitioner, it was also provided that they would do so taking note of the fact as to whether the w ork was completed as per the specification and also as to whether the claim made by the petitioner was barred by limitation. In the counter affidavit filed by the respondents it has been stated tha t there being failure on the part of the petitioner to prepare and supply the EP IC in respect of the three Legislative Constituencies, the respondents are not l iable to make any payment to the petitioner. In the reply affidavit filed by the petitioner it has referred to the Annexure-2 letter dated 20.05.2003 by which t he Deputy Commissioner, NC Hills appraised the Government in the Election Depart ment regarding supply of EPIC by another party with the request to make the paym ent in respect of the said supply. The letter has been referred to by the petiti oner to take the plea that the petitioner being similarly situated, is also enti tled to similar treatment at the hands of the respondents. The aforesaid order, dated 23.02.2007, passed in WP(C) 820/2007, has att ained its finality. By the said order dealing with the plea of the petitioner th at it was entitled to Rs.24,52,248/-(Rupees twenty four lakhs fifty two thousan d two hundred forty eight) only, direction was issued to examine the claim of th e petitioner. While doing so, the respondents were also granted the liberty to v erify as to whether the work was executed as per the specifications of the work order and also whether the claim of the petitioner was barred by limitation. It is in this context Mr. D. Baruah, learned counsel for the respondent No.2 has su bmitted that the petitioner has failed to make the supply as per the specificati on and its claim is also barred by limitation and hence, there is no obligation as per the work order indicated above. The petitioner was to complete the work by 10.12.1995 subject to extension up to maximum period of 60 days from the date of issue of the work order. Thus, the p etitioner was entitled to get time up to 10th February, 1996, to execute the wor k. It is true that it continued to prepare the EPIC even beyond the said date, b ut the question that necessity will arise as to whether without any written cons ent of the respondents, the petitioner could have continued with the work. The petitioner submitted its bills on 10.03.1999, 29.05.2000, 22.03.2002, 22.10. 2002 followed by letter dated 10.02.2005 asking for payment of the entire amount . It was thereafter, the petitioner filed the aforesaid writ petition in which t he above quoted order dated 23.02.2007 was passed. After the aforesaid order of this Court, the Annexure-H series communications da ted 06.08.2007, 16.08.2007 and 25.08.2007 referred to above had been made by the authorities concerning the three Legislative Assemblies for which the supply of EPIC was to be made. On perusal of the said communications, what has transpired is that apart from the fact that the petitioner could not supply the whole quan tity of the EPIC, the same were also defective. As per the terms and conditions of the work order, the EPIC had to be prepared a nd supplied by 10th December, 2005, extendable up to 60 days (Clause-6). It was also provided in the terms and conditions that on default of the terms, the agre ement would stand cancelled and the Executing Agency i.e. the petitioner would b e liable to pay penalty up to 10 per cent of the total amount. In Clause 10 of t he condition it was provided thus: (cid:28)If the work done by the Executing Agency is found to be not as per specificatio n, the whole lot shall be rejected and the expenditure and loss incurred by the State Government in the preparation of those cards shall be recovered from the E xecuting Agency. (cid:29) In clause 11, 21, 17 of the said conditions it was provided as follows: (cid:28)The bill for payment for a minimum of 10,000/- (Ten thousand) completed in all respects and supplied Identity Cards with duplicate miniatures thereof for a pa rticular Legislative Assembly Constituency with a certificate of the Electoral R egistration Officer to the effect that the said numbers of Identity Cards and du plicate miniature thereof have been received will be submitted by the Executing Agency to the District Election Officer concerned, who, after verification shall make payment after observing all formalities. At the stage when less then 10,000(ten thousand) cards and miniature duplicates thereof remained to be made, bill for payment for a minimum of 25% of this remai ning number completed in all respects and supplied Identity Cards and duplicate miniatures thereof may be presented by the Executing Agency to the District Elec tion Officer concerned following the same procedure as mentioned earlier in this paragraph for payment. If at any subsequent stage, any card or miniature thereo f is found to be defective in any respect, the Executing Agency shall be bound t o make and supply a fresh correctly prepared Photo Identify Card and miniature d uplicate thereof at their cost before any payment for any of the bills presented by it subsequently is considered by the District Election Officer. (cid:29) The admitted portion is that the petitioner could not complete the work within t he stipulated period of time and started submitting bills from 10.03.1999 as aga inst the completion of work schedule by 10th February, 1996. Nothing could be shown in the writ petition that there was any response from the respondents acknowledging the claim of the petitioner. It was only on the basis of the aforesaid order of this court, the matter was examined and by the Annexu re-8 series letters, information was furnished. Apart, the fact that the petitio ner could not supply the entire quantity of the EPIC, the same were also defecti ve. Exercising the power of judicial review under Article 226 of the Constitution of India, this Court cannot issue direction to the respondent for payment of the a foresaid amount on disputed facts. It will be entirely up to the respondents to make payment, if found payable, on account of the non-defective EPICs . With the above observation this writ petition is disposed of.