M/S POOJA HARDWARE v. THE STATE OF ASSAM AND 8 ORS

Advocate for the Petitioner : MR. B GOGOI Advocate for the Respondent : SC, P H E BEFORE HON’BLE MR. JUSTICE MANASH RANJAN PATHAK

09.03.2022 O R D E R Heard Ms. D. Das, learned counsel for the petitioner and Mr. K.P.Pathak, learned Standing Counsel, Public Health Department for the respondent Nos. 1, 2, 3, 7 & 9. Also heard Mr. S.R.Rabha, learned Standing Counsel, BTC for respondent Nos. 4, 5, 6 & 8. 2) Petitioner is a registered Hardware firm represented by its proprietor and is duly registered under the Public Works Department, Government of Assam for executing various works under it within different districts of Assam as well as within the BTC area. Page No.# 3/6 3) Pursuant to its quotation dated 29.09.2009 and in pursuance of the Government’s approval vide No. PHED-714/2008/127 dated 06.02.2010, the Chief Engineer (PHE), Sanitation, Assam, Hengrabari, Guwahati vide his Order No. PHE/CE/CC/CSC/651/09-10/7355 dated

11.02.2010 issued work order in favour of the petitioner for “supply, installation/erection and O&M (operation and maintenance) up to five years of Stand Alone Water Purification System at site under Jalmani Scheme” @ of Rs. 19,975/- per unit with total value of the work at Rs. 1,46,61,650/-. The petitioner accordingly supplied and installed such Stand Alone Water Purification System under the said Jalmani Scheme pursuant to the above detail work order dated

11.02.2010 in different places of Assam like, Dhubri, Gossaigaon, Kokrajhar, Baksa, Mushalpur, Nalbari, Tangla, Tezpur, Biswanath Chariali etc. 4) Though the petitioner supplied and installed Stand Alone Water Purification System under Jalmani Scheme at different places, noted above and raised bills from June 2010 to February 2011 before the concerned divisions of the places wherever it supplied and installed such water purification systems, all amounting to Rs. 86,13,064/- but the respondents in the PHE are yet to pay him the said amount. Petitioner submitted representations before the Chief Engineer (PHE), Sanitation, Assam on 13.06.2011, 26.02.2012 and 20.05.2014. But there was no response from the authority concerned. 5) Petitioner also approached the authorities concerned in the PHE Department, Government of Assam and accordingly, the authorities concerned on 06.03.2012 wrote to the Chief Engineer (PHE), Sanitation, Assam directing it to take appropriate action in the matter at its earliest convenience, even then, the authorities in the PHE Department did not consider to pay and release the bill amount payable to the petitioner for supply and installation of Stand Alone Water Purification System under Jalmani Scheme at different places of Assam, noted above. 6) Hence, this writ petition by the petitioner praying amongst others for a direction to the respondent authorities to release and pay him the said amount of Rs. 86,13,064/-payable to him for execution of the work in terms of the work order dated 11.02.2010 issued by the Chief Engineer (PHE), Sanitation, Assam, Guwahati. 7) With regard to the payment of admitted amount of contractor’s bill, a Single Bench of this Court on 31.05.2005 in WP (C) No. 8995/2004 (Jatin Pathak Vs. State of Assam and Others) has laid down the following principle: Page No.# 4/6 "(1) The public Works Department of the State of Assam shall prepare a list of contractors, in each of its Division, to whom money is admitted to be due on account of the contract works performed whether under orders of the Court or otherwise. (2) Such lists will be prepared Division-wise in strict chronological order on the basis of the date on which payment is due. (3) In drawing of the aforesaid list, the names of the contractors may be arranged under the separate Heads of Accounts that may be involved. (4) That funds received by the Public Works Department under the particular Heads of Accounts and against the Division will be applied for discharge of the admitted dues in the order in which the list is prepared and maintained. (5) All the contractors who claim money to be due will be a liberty to have their names registered in the concerned Division, which registration will be effected by the concerned authority after due verification of their entitlement to the payment claimed." 8) Accepting the said principle/guideline laid down in the case of Jatin Pathak (supra), the State Government through its Chief Secretary filed an affidavit in the case of Tamsher Ali and Others -Vs- State of Assam and Others (W. A. 484 Of 2005), reported in 2008 (4) GLT 1 stating that in the manner of processing the claims, which are admitted to be due, subject however, to the following conditions: "i) All claims for payment of outstanding dues would be entertained for consideration provided the same are admitted by the respective departments. The admissions of liability shall have to be certified by the respective Chief Engineer in respect of Works Departments and in respect of other departments by the Head of the departments. ii) All claims for payment of admitted outstanding dues would be entertained for payment provided the claims are lodged before the competent authority within a period of three years from the date of the payment becoming due. iii) All claims for payment of admitted outstanding dues in respect of which the contractors intend or have approached the Hon'ble Court, in such cases, the contractors must approach the Hon'ble High Court within a period of 3 years from the date of the payment becoming due. This view has been taken as the Hon'ble Apex Court in the State of Madhya Pradesh Vs. Bhailal Bhai and Others, reported in AIR 1964 SC 1006 at Para 21 has observed that though provisions of Limitation Act do not as such apply to proceedings under Article 226, the period of Limitation prescribed by Limitation Act for instituting a civil action may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. " 9) As the Government of Assam with regard to payment of admitted amount of contractor’s bill has agreed for disposal of the writ petitions in terms of their broad agreement to abide by the Page No.# 5/6 guidelines formulated in Jatin Pathak's case with the aforesaid terms and conditions, a Full Bench of this Court in the case of Tamsher Ali and Others (supra) disposed of the said matter along with other connected cases. 10) Inspite of the direction issued to the respondents in the PHE since 22.12.2021, the respondents though took time on 25.01.2022 & 25.02.2022, but the respondent authorities neither filed any affidavit in the matter nor filed any instruction before the Court regarding the status of payment of such dues payable to the petitioner by the respondents in the PHE in respect of the work done by it pertaining to said work order dated 11.02.2010 issued by the Chief Engineer (PHE), Sanitation, Assam, Guwahati. 11) Upon hearing the learned counsels for the parties and considering the observations made in the cases of Jatin Pathak (supra) as well as Tamsher Ali and Others (supra), this writ petition is disposed of directing the respondent authorities in the PHE, more particularly, the Commissioner and Secretary, Public Health Department, Government of Assam, respondent No. 1 as well as the Chief Engineer (PHE), Sanitation, Assam, respondent No. 2 to make the necessary process towards sanction and for payment of the admitted amount of dues payable to the petitioner with regard to the work executed by it relating to supply and installation of Stand Alone Water Purification System under ‘Jalmani Scheme’ at different places of Assam in pursuance of the work order No. PHE/CE/CC/CSC/651/09-10/7355 dated 11.02.2010 issued by the Chief Engineer (PHE), Sanitation, Assam, as per its entitlement, following the due procedure and in accordance with law and the direction of the Court issued in the cases of Jatin Pathak (supra) as well as Tamsher Ali and Others (supra), if there is no other impediment in releasing such amount payable to it. 12) Petitioner shall submit certified copy of this order before the Commissioner and Secretary, Public Health Department, Government of Assam, respondent No. 1 and the Chief Engineer (PHE), Sanitation, Assam, respondent No. 2, obtaining necessary acknowledgment from them in that regard. 13) With the above observation and direction, this writ petition stands disposed of. JUDGE Page No.# 6/6 Comparing Assistant