…….. 1. The Jharkhand Urga Utpadan Nigam Limited through its Chairman. 2. The Chief v. 1. South West Pinnacle Exploration Pvt. Limited. 2. The State of Jharkhand. 3. The
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI I.A. No. 7192 of 2023 In L.P.A. No. 411 of 2023 …….. 1. The Jharkhand Urga Utpadan Nigam Limited through its Chairman. 2. The Chief Engineer (Banhardi Coal Block), Jharkhand Urga Utpadan Nigam Limited through its Chairman. 3. The Jharkhand State Electricity Board Now Jharkhand Urja Vikas Nigam Limited through its Chairman. Versus 1. South West Pinnacle Exploration Pvt. Limited. 2. The State of Jharkhand. 3. The Director, Geology Department of Mines Directorate ..… Appellants of Geology, Government of Jharkhand. 4. The Deputy Director, Geology, Advance Planning and Monitoring, Department of Mines, Directorate of Geolo- gy, Government of Jharkhand. 5. Accountant General, Jharkhand. .....Respondents --------- CORAM: Hon’ble Mr. Justice Rongon Mukhopadhyay Hon’ble Mr. Justice Deepak Roshan For the Appellant For the Res.No.1 For the Res. No.5, A.G : Mr. S. Srivastava, Adv. --------- : Mr. Sachin Kumar, Adv. : Mr. Indrajit Sinha, Adv. --------- CAV on:- 26.02.2024 Pronounced on:-21/03/2024 Per Deepak Roshan J. I.A. No. 7192 of 2023 Heard Mr. Sachin Kumar learned counsel
Legal Reasoning
appearing for the appellant and Mr. Indrajit Sinha learned counsel appearing for the respondent No.1 and Mr. S. Srivastava learned counsel appearing for the respondent No.5. 2. This interlocutory application has been preferred by the appellant for condoning a delay of 62 days in filing the appeal. 3. Having been satisfied with the reasons assigned in the instant application, the same is allowed and the delay 2 of 62 days in filing the appeal is hereby condoned. 4.
Decision
I.A. No.7192 of 2023 stands disposed of. L.P.A. No. 411 of 2023 5. The instant appeal is directed against the order dated 26.04.2023 passed by the learned Single Judge in W.P.(C) No.81 of 2016 filed by the respondent no.1/writ petitioner; whereby the learned Writ Court allowed the application of the respondent no.1/writ petitioner and directed the respondents/appellants to release the admissible dues amount to the writ petitioner by 31.05.2023. Respondents/appellants were further directed to pay the amount of Rs.16,61,130.24/- prior to the said date which was the dues payable to the respondent no.1/writ petitioner on account of the work completed by the respondent no.1/writ petitioner. 6. The brief fact of the case is that the Government of Jharkhand had invited tender for drilling of different coal blocks and geophysical logging. The respondent-writ petitioner had participated in the tender process, but initially the work involved in this case was not allocated to the writ petitioner. However, respondent no.3/appellant issued Letter No.2286 dated 08.03.2013, seeking the consent of the writ petitioner as to whether the writ petitioner was ready to explore one Banhardi Coal Block under Jharkhand State Electricity Board and whether the respondent-writ petitioner was ready to complete the work at the old rate. The respondent-writ petitioner responded vide letter dated 18.03.2013 mentioning that the writ petitioner was ready to accept the earlier agreed rate, but 3 excluding service tax which was going to be only 12.36% as per current service tax rate. The respondent no.2/appellant sent a letter to the Member, Generation, of the then Jharkhand State Electricity Board seeking acceptance/consent and vide Annexure- 5, the Jharkhand State Electricity Board accepted the terms and conditions offered by the respondent no.1-writ petitioner. Consequently, the respondent no.2/appellant issued work order dated 03.05.2013 to the writ petitioner clearly mentioning that the unit rate was excluding service tax. The respondent-writ petitioner completed the work as per the terms of the work order and completion certificate was issued on 03.12.2014. Thereafter, it raised a bill for an amount of Rs.16,61,130.24/- vide letter dated 17.11.2014 and again reminded for payment and also requested for release of the bank guarantee. However, instead of paying the due bill amount, the respondent no.5/appellant issued letter no.203 dated 23.12.2015 by which the respondent-writ petitioner was communicated that it has been decided to recover Rs.1,72,59,690/- which was alleged to have been paid in excess to the writ petitioner. The letter dated 23.12.2015 was impugned in W.P(C) No.81 of 2016 which was set aside vide order dated 26.04.2023 and the said order of the Writ Court is challenged in the present appeal. 7. Learned counsel for the appellants contended that the rates quoted by the successful bidder was valid for a period of 3 years and though the writ petitioner was not a successful bidder, but he was to execute the work, if at all, in the same rate as that of the L-1 bidder. The validity 4 period of the rate being for 3 years, no further amount could have been paid to the petitioner. It has further been submitted that the rate quoted by L-1 bidder was inclusive of service tax and the petitioner was entitled to claim the same rate inclusive of service tax. Learned counsel has also submitted that there is no privity of contract between the writ petitioner- respondent and the appellants-respondent nos.4, 5 and 6. 8. Learned counsel further submits that the amount of Rs.1,43,30,321/- is said to be the extra payment made on account of service tax by stating that the service tax was not payable to the writ petitioner as the writ petitioner had accepted the L-1 rate and the rate was valid for 3 years from the date of tender i.e., up-to November, 2014 and the rate was inclusive of service tax and the said component of the service tax was sought to be realized with interest at the rate of 12% per annum and the mode for recovery of the amount was also mentioned in the impugned communication which included encashment of bank guarantee which was for an amount of Rs.80 lakhs. 9. Learned counsel for the appellants lastly submits that the learned Writ Court has committed a serious error, inasmuch as, the lis in the instant case was arising out of a contract; as such the Writ Court should not have decided, rather the writ application should have been dismissed on the ground of maintainability only. In this regard learned counsel referred to the judgment passed in the case of PopatraoVyankatraoPatil Vs. State of Maharashtra reported in (2020) 19 SCC 241, wherein the Hon’ble Apex Court has held as under:- 5 in its the High Court is not precluded “11. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be from adduced, the entertaining a petition under Article 226 of Constitution. However, such a plenary power has to be exercised by exceptional the High Court circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or is arbitrary and instrumentality unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts. 12. It is undisputed, that the appellant was the highest bidder for the sand block in question. The appellant has deposited an amount of Rs 62,26,085. The panchnama prepared by the Circle Officer, Kale Respondent 5, clearly exhibited that neither possession of the sand block in question was given to the appellant nor excavation of sand was done from the said sand block. The said position is reiterated by the Tahsildar, Karad Respondent 4 in his report submitted to the Collector Respondent 2 dated 9-8-2012. The Sub-Divisional Officer, Karad Respondent 3 in his report dated 4-9- 2012, addressed to the Collector, Satara also confirmed the said position. A perusal of the letter dated 3-10- 2012, addressed by the Collector, Satara to the Tahsildar and Sub-Divisional Officer also does not dispute the said position. However, he directed his subordinates to submit original file of the appellant’s sand block with his office for refund of the amount deposited by the appellant. 13. It appears, that subsequently after all the authorities including Circle Officer, Tahsildar, Sub-Divisional Officer and the Collector found that neither the possession of the sand block was handed over to the appellant nor the excavation of sand from the said sand block was done, at the instance of the Collector, the file for grant of refund was being processed. It further appears, that the file in transit was misplaced and on this ground the appellant was denied the refund. It could thus be seen, in these admitted facts, that the denial on the part of the respondents to refund the amount to the appellant can, by no stretch of imagination, be called as reasonable. The action of the respondents, in denying the refund of the amount of the appellant, when the respondents 6 themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit.” 10. Learned counsel for the Accountant General submits that though it was a case of the appellants that the demand notice was issued by JUVNL as there was an audit objection but the Office of Accountant General has never given any such direction. Moreover, the Office of Accountant General does not has the authority and sanction of law to issue such direction. 11. Learned counsel for the respondent-writ petitioner supports the impugned order and submits that JSEB had invited the petitioner vide its letter dated 08.03.2013 for negotiation by asking as to whether the petitioner will be ready to explore one Banhardi Coal Block under Jharkhand State Electricity Board and whether it will be ready to complete the said work on old rate. The petitioner replied vide its letter dated 18.03.2013 indicating therein that it is ready to do the work at the old rate provided the service tax shall be paid by the department. Finally, Jharkhand State Electricity Board accepted the offer vide its letter dated 18.04.2013. Thus, there is no error in the impugned order. 12. Having heard learned counsel for the parties and after going through the impugned order and relevant documents there are certain admitted facts which are as follows:- (i) Initially the writ petitioner was never allocated the work involved in this case through the tender process though the petitioner had participated in the tender and 7 was allocated different work. (ii) The Performa respondent No.3 had invited the petitioner vide its letter dated 08.03.2013 for negotiation by asking the petitioner as to whether the petitioner will be ready to explore one Banhardi Coal Block under JSEB and whether it will be ready to complete the said work on old rate. (iii) In response to the said letter dated 8.3.2013, the writ petitioner replied vide its letter dated 18.03.2013 indicating therein that it is ready to do the work at the old rate provided the service tax shall be paid by the department and the said letter was forwarded by the Performa respondent no.2 to Member, Generation, of the JSEB and finally JSEB accepted the offer of the writ petitioner vide its letter dated 18.04.2013. (iv) Consequently, work order dated 03.05.2013 excluding service tax was issued. (v) Admittedly, the petitioner has completed the work and the completion certificate dated 03.12.2014 was issued. (iv) When the petitioner raised bill of Rs.16,61,130.24/- for its payment; a letter dated 23.12.20215 impugned as Annexure-11 to the writ application was issued asking the petitioner to refund the component of service tax paid to him by respondents/ appellants with interest @ 12% total amounting to Rs.1,72,59,690/-. 13. At this stage it is pertinent to mention here that the offer which was made by the writ petitioner vide letter dated 18.03.2013 was duly accepted and the work order was issued by the Board on 03.05.2013. Even the payments were made to the writ petitioner as and when it 8 raised the bills on account of service tax also. It is also an admitted fact that throughout the bills were raised by the petitioner and the same were being paid and all of sudden the impugned order of recovery on account of service tax component already paid by the petitioner was issued. 14. At this stage it is also necessary to indicate that there was an averment in the counter affidavit filed before the writ court that certain audit objections were raised and placed in the audit report of the Office of Accountant General on public sector for financial year 2014-15 and the same was laid in the Jharkhand Vidhan Sabha; however, the specific statement of Mr. Srivastava appearing for the Accountant General Office that there was no audit objection by the Office of Accountant General. As a matter of fact, neither the Accountant General has given any such direction nor the office of Accountant General has any authority of sanction of law to issue such direction. 15. Admittedly, the respondent-writ petitioner has completed the work and the completion certificate dated 03.12.2014 was issued. The learned Writ Court after going through the entire gamut of the facts came to the conclusion that the respondents-appellants have taken work from the petitioner after the petitioner had negotiated and after the negotiation the writ-petitioner was issued work order and thereafter bills were regularly raised excluding the service tax and the appellants were paying the same. Thus, it was not open for the respondents/appellants to say subsequently that the service tax component was wrongly paid to the petitioner 9 and the old rate was inclusive of service tax and finally directed the respondents/appellants to pay the amount of Rs.16,61,130.24/- which was said to be the dues of the respondent no.1/writ petitioner on account of work completed by the writ petitioner. 16. We are having full agreement with the findings given by the Writ Court primarily on the ground that neither there was any audit objection nor there was any hindrance prior to issuance of impugned order for recovery of an amount towards service tax, inasmuch as, after negotiation, the writ petitioner-respondent regularly raised the bills excluding service tax and got the payment, per se no error has been committed by the learned Writ Court. 17. At this Stage it is also necessary to consider the ground of maintainability raised by Mr. Sachin Kumar appearing on behalf of the appellants. So far as maintainability of any writ application with regard to contractual matter is concerned; the Hon’ble Apex Court in the case of ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., reported in (2004) 3 SCC 553 has held in para-27 and 28 as under:- “27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the 10 limited by any other provisions of Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Trade Corpn. v. Registrar Marks [(1998) 8 SCC 1] .) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” of 18. By going through the aforesaid dictum of the Hon’ble Apex Court, we are having no hesitation in holding that the learned Writ Court has rightly decided the case on merit and directed the respondents/appellants to refund the amount. Accordingly, the instant appeal stands dismissed. I.A. No. 7193 of 2023 also stands disposed of. (Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Fahim/-AFR-