Netwind Softlabs Pvt. Ltd v. State of Jharkhand through Chief Secretary, Government of Jharkhand, Ranchi

SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. --------- Mr. Subhashis R. Soren, Advocate For the Petitioner: For the Respondents: Mr. Piyush Chitresh, A.C. to A.G. Mr. Shadab Bin Haque, Advocate Mr. Manoj Tandon, Advocate --------- 04/Dated: 19.07.2023 Upon hearing the learned counsel for the parties, this Court passed the following, (Per, Sanjaya Kumar Mishra, C.J.) ORDER

1. By filing this writ application, the petitioner has mainly prayed for the following reliefs:- “i) For issuance of an appropriate Writ/Rule/Direction particularly a writ in the nature of certiorari quashing the Memo No. 942 dated

23.06.2023 issued by Administrator, Municipal Corporation, Giridih [ANNEXURE-10] whereby and whereunder the said administrator had cancelled the work order of Toll Tax Collection; ii) For issuance of an appropriate Writ/Rule/Direction particularly a writ in the nature of certiorari quashing the Advertisement [ANNEXURE-15] bearing number PR301131 Urban Development (23-24)D issued by Administrator, Municipal Corporation, Giridih iii) For issuance of an appropriate Writ/Rule/Direction particularly a writ in the nature of mandamus and direct the Respondent No.4 authorities to give effect to the agreement dated executed on

14.10.2022 [ANNEXURE-3] as well as the Memo No. 365 dated 2

18.03.2023 [ANNEXURE-5] and the Letter vide Memo no. 500, dated

15.04.2023 issued by Respondent No. 4 [ANNEXURE-6]; iv) Direct the Respondent No.2 to set up enquiry for erring officials of Giridih Municipal Corporation along with Respondent No. 4 in terms of Clause 4.23 of Appendix-2, Jharkhand Municipal Procurement Guidelines of Jharkhand Municipal Accounts Manual Part-4; v) Direct the Respondent No.4 to compensate the Petitioner.”

2. The facts of the case leading to filing of this writ application may be enumerated as follows: The petitioner, a company incorporated under the Companies Act, 2013 has filed this writ application through its Director. On

18.08.2022, the Giridih Municipal Corporation had floated an advertisement for collection of tax and fees under Bazar (excluding holding tax, water user charges, trade license fees, solid waste user charges) under Bazar Shakha in the municipal area of Giridih vide NIT No. UDD/GMC/01/2022-23 of the aforesaid date. On 14.10.2022 the petitioner was declared the successful bidder in consortium with M/s. Ad. Victoriam Marketing Solution Private Limited. On that day, they entered into an agreement with the Deputy Municipal Commissioner, Giridih Municipal Corporation. On 28.08.2022, M/s Netwind Softlabs Private Limited in Consortium with M/s. Ad. Victoriam Marketing Solution Private Limited have entered in a Memorandum of Understanding and constituted a consortium for the purpose of jointly participating in the bidding process for the Project. On 18.03.2023, the Giridih Municipal Corporation issued a letter to the Director, M/s Netwind Softlabs Private Limited and intimated the work order for collection of toll tax under Giridih Municipal Corporation Area and ordered to maintain a minimum average collection of Rs. 1,00,000/- on a daily basis, summing up to an amount of Rs.3,65,00,000/- annually. On the basis of the aforesaid agreement, a 3 letter vide Memo No. 500 has been issued on 15.04.2023 directing the petitioner’s Company to start work of collection of toll charges under the Giridih Municipal area from 17.04.2023 and also issued a letter dated 16.04.2023, prescribing certain terms and conditions for such collection of toll tax. It is alleged by the petitioner that respondent no. 4 demanded Rs.2 lakhs as she was going to Raipur for a meeting but, the petitioner refused to honour her and then she threatened him to blacklist and cancel the tender. On 13.06.2023, respondent no. 4 allegedly threatened the Director of the petitioner-Company to submit an affidavit stating that he is unable to continue the work order of the toll tax collection and this had been informed by the petitioner to his consortium partner. On 14.06.2023, respondent no. 4 gave further pressure to submit such an affidavit. On 15.06.2023, respondent no. 4 continued her pressure through her WhatsApp., on which he sent unsigned affidavit and she also stated to make another affidavit on

16.06.2023 contending that he has not signed the affidavit and wishes to continue work of tax collection but, she put pressure not to submit the same unless she instructs. On 17.06.2023 respondent no.4 along with the D.D.C., Chaibasa asked the Director of the petitioner- Company to visit the home of respondent no.4 and where she put pressure to sign on the letter dated 15.06.2023 and threatened that if he does not sign then she would blacklist and ensure that they cannot work in the entire Jharkhand. On 19.06.2023, after receiving the letter from the consortium partner, she became furious and threatened the consortium partner over phone for which audio recording can be produced, as pleaded by the petitioner, and also the petitioner. Respondent No. 4 called the consortium partner and had finally told that she will now show her power of being the Deputy Municipal 4 Commissioner. This incident took place on 20.06.2023. On

23.06.2023, the consortium partner met with his lawyer and this factum respondent no.4 was got to know, consequent to which, on the same date, she issued office order vide Memo No. 942 dated

23.06.2023 wherein, they cancelled the work order of Toll Tax Collection from the petitioner basing the reason on letter dated

15.06.2023 issued by the petitioner and had further ordered for blacklisting and forfeiting the performance security. However, the said Memo No. 942, dated 23.06.2023 was sent to the petitioner on his mail. Thus, it lead to the filing of the writ application.

3. It is apparent from Annexure-9, which is in the form of affidavit (शपथ प(cid:361)) and duly notorised, that the petitioner-Company through its Director on 15.06.2023 intimated the Deputy Municipal Commissioner that: … …. ….. “ With grief regret we would like to state that, we have been finding huge difficulties in the collection process of the toll charges under Giridih Municipal Corporation as we have been under enormous pressure through various political representatives through different parties since we have started the collection process. I am a person of peaceful nature and would not like to take unwanted pressure which is not related with the performance of my work. ….. …. …” On the basis of the Deputy Municipal Commissioner issued the impugned Annexure of cancellation of the work awarded in his favour as well as directed for forfeiture of the security deposits and blacklisting of the petitioner.

4. Learned counsel for the petitioner would submit that in the original tender, the work of collection of toll tax was not included and it has been included by means of the residuary provision, i.e., Clause XXV, which reads as follows: “XXV. Any other scope with regards to collection and recovery of taxes or fee under the bazar shakha can be included under the scope with a written order the Dy. Municipal Commissioner of Giridih Municipal Corporation.” 5

5. Thus, it is clear that the collection of toll tax though was not initially included in the duties of the petitioner, it was by virtue of the residuary clause, awarded in his favour and that he wants to withdraw from such responsibility.

6. Learned counsel for the petitioner in course of hearing, was pointedly asked that as the petitioner has made specific allegation of threat and demand of money against respondent no. 4 whether such documents are available and filed as Annexures the writ application, learned counsel for the petitioner would submit that the petitioner has copies of the WhatsApp. messages sent by respondent no.4 but, those documents have not been annexed to the writ application. He would further submit that there is a phone recording but, that is not available in the Court with the petitioner’s counsel and it cannot be produced. Thus, it is apparent from the record that though serious allegations have been made against the public officials, such allegations are not supported by any document worth the name, except the affidavit annexed to the writ application. It is also apparent from the records that the petitioner has himself filed an application for withdrawal from certain responsibilities, which was arising out of the contract and such application/letter/representation is in the form of an affidavit (शपथ प(cid:361)), which is duly notarized and on the basis of such withdrawal from the responsibility, the impugned order has been passed. Hence, we do not find any reason to believe the stand taken by the petitioner at this stage that he was under a pressure to give such a letter to the Deputy Municipal Commissioner and accept the subsequent affidavit dated 16.06.2023. Since the petitioner has itself withdrawn from the responsibility, we do not find any reason to 6 entertain the writ application even for the purpose of issuance of notice.

7. It is also borne out from the records that the petitioner is a Company. There has not been compliance of Section 179 of the Companies Act, 2013, which requires a resolution of Board authorizing one of its Principal Officer/Director to file a litigation before the Court.

8. In that view of the matter, we do not find any reason to entertain this writ application which is accordingly dismissed being devoid of any merit, with a cost of Rs.5,000/- (Rupees Five Thousand) to be deposited in the coffers of Jharkhand High Court Legal Services Committee, Ranchi within a period of 15 days, failing which the same shall be recovered as arrears of land revenue under the provisions of the Bihar and Orissa Public Demand Recovery Act, 1914.

9. There shall be no orders as to costs.

10. Pending application, if any, stands disposed of.

11. Grant urgent certified copy of this order as per the Rules. (Sanjaya Kumar Mishra, C.J.) (Ananda Sen, J.) APK/VK