THE HIGH COURT OF MEGHALAYA W.P. (C) No.187/2014 Smti. [ENTITY], D/o (L) J.C.K. Marak, Sole Proprietor of M/s Momin Furniture & Stationery, Williamnagar, East Garo Hills, Meghalaya. Petitioner -Vs- 1. [ENTITY], represented by the Commissioner & Secretary, Department of Education, Civil Secretariat, Shillong-793001, District: East Khasi Hills, Meghalaya. 2. The State Project Director, [ACT]SMAM, Secretary, Department of Education, Meghalaya, Shillong. 3. The Deputy Commissioner-cum-Chairman, [ACT]SMAM, District: East Garo Hills, Williamnagar, Meghalaya. 4. The District Mission Coordinator, District Unit, [ACT]SMAM, District: East Garo Hills, Williamnagar, Meghalaya. Respondents
BEFORE THE HON'BLE MR. JUSTICE T NANDAKUMAR SINGH For the petitioner : Mr. [ENTITY], Adv, For the respondents : Mr. [ENTITY], GA Date of hearing : 27.03.2015 Date of Judgment : 01.04.2015 JUDGMENT AND ORDER By this writ petition, the petitioner is praying for quashing the impugned letter being No.EGH/[ACT]-12/2006/1401 dated Williamnagar the 8th January, 2007 of the District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills informing the petitioner that an amount of Rs.40/- per child is to be kept aside for Exercise Books out of the total amount of supply order i.e. Rs. 22,03,404 (Rs.40 x 55085 = Rs. 22,03,404/-) and also for a direction to the respondents to pay her (petitioner) the undisputed amount of the pending bill i.e. Rs. 22,03.404/- only with interest @ 12% per annum till realization.
2. Heard Mr. [ENTITY], learned counsel for the petitioner and Mr. [ENTITY], learned GA appearing for the State respondents.
3. The brief fact leading to the filing of the present writ petition is noted. The petitioner is a business woman and sole proprietor of M/s Momin Furniture and Stationery at Williamnagar, East Garo Hills, Meghalaya. In the month of July, 2006, the office of the District Mission Coordinator ([ENTITY]), District Unit, Sarva Shiksha Abhyian Mission Authority Meghalaya ([ACT]MAM), East Garo Hills, Williamnagar, published a short quotation notice clearly mentioning the terms and conditions for supply of "Text Books for L.P. & EGS Schools" under the [ACT] for the year 2005-2006 vide Memo No. EGH/[ACT]-12/2006/832-840 dated 12.07.2006. For convenience, the said notice dated 12.07.2006 is quoted hereunder:-
"OFFICE OF THE DISTRICT MISSION COORDINATOR, DISTRICT UNIT, [ACT]SMAM EAST GARO HILLS, WILLIAMNAGAR SHORT QUOTATION NOTICE Quotations on Printed Pad or Plain Paper affixing non-refundable Court Fee Stamp of Rs.50/- (Rupees Fifty) only under sealed envelope accompanied with Clearance Certificate or Professional Tax, Caste Certificate and VAT Certificate in respect of Tribals and Non- Trading Professional Tax, Income Tax and VAT Certificate in respect of Non-Tribals for supply of "TEXT BOOKS FOR L.P. & EGS SCHOOLS" under [ACT] for the year 2005-2006 will be received upto 2:00 PM of the 31st July, 2006 and will be opened at 3:00 PM on the same date in presence of Quotationers or their authorized agents if there be any.
TERMS AND CONDITIONS
1. The Quotationer should be Govt. approved Firm or Govt. Regd. Contractor.
2. The rates once accepted will be treated as valid upto 31 st March, 2007.
3. Quotation of rates should be inclusive of Taxes and Transportation charges to deliver to all BRCs of the District.
4. Lowest rates will not be the criteria for acceptance. Rates should be written legibly in both figure and words.
5. No item be left unquoted.
6. The District Mission Coordinator reserved the right to accept or reject any or all quotationers and his decision on all matters will be final.
Enclo: List of Books Sd/- ([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar
Memo No. EGH/[ACT]-12/2006/832-840 Dated Williamnagar the 12th July, 2006.
Copy to:-
1. The [ENTITY], Education Department, Shillong for favour of information.
2. The [ENTITY] for favour of information.
3. The [ENTITY] for favour of information and necessary action.
4. [ENTITY] for information.
5. The [ENTITY] for information.
6. All Govt. Approved Firms/Book Stores/Govt. Regd. Contractors, Williamnagar for information.
7. The [ENTITY]/[ENTITY] for information with request kindly to publish the same on any date/day.
8. NOTICE BOARD.
9. Office File concerned.
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar"
4. In response to the said quotation notice dated 12.07.2006, the petitioner had submitted a quotation/bid for supply of text books and finally after consideration of the quotations/bids of the other quotationers, the Purchase Committee accepted and approved the quotation/bid of the petitioner and accordingly, the petitioner had been informed and called by the then District Mission Coordinator ([ENTITY]) for supply of text books as per the list enclosed within the stipulated period vide letter No.EGH/[ACT]- 12/2006/1341 dated 15.11.2006 for an amount of Rs. 82,62,800/- (Rupees eighty two lakhs sixty two thousand eight hundred) only with a deadline of supply to be completed on 15.01.2007. The said supply letter dated 15.11.2006 (Annexure-II to the writ petition) reads as follows:-
"OFFICE OF THE DISTRICT MISSION COORDINATOR DISTRICT UNIT [ACT]SMAM EAST GARO HILLS WILLIAMNAGAR th No.EGH/[ACT]-12/2006/1341 Dated Williamnagar the 15 November, 2006.
From: District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar. To, M/s Momin Furniture and Stationery, Williamnagar, East Garo Hills. Subject: Order for supply of Text Books for L.P. Schools and EGS Centers for the year 2006-2007. Sir/Madam,
On the subject quoted above, kindly supply the Text Books for L.P. Schools and EGS Centers as specified in the Annexure I and as per Challans enclosed herewith on or before 15.01.2007 subject to fulfillment of the following conditions.
1. In case you are willing to accept or execute the order, you may inform the undersigned in writing within 7 (seven) days from the date of issue of this order.
2. In case of failure to complete the supply of books within the last date fixed, this order is liable for cancellation unless reasons are informed and justified.
3. Books are to be supplied/delivered to BRC of all C.D. Blocks as per Challan enclosed herewith and there should not be any short of supply whatsoever.
4. In case you need advance payment, you may apply for it and 50% of the total amount of the order may be paid based on the signing of Agreement/Undertaking.
5. Bill in duplicate copy along with the Original Challan duly certified by the BMC/Receiver should be submitted after completion of supply for necessary action.
Enclo:- i) List of Books in Annexure I
ii) Challan in Triplicate Yours faithfully, Sd/-
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar Memo No. EGH/[ACT]-12/2006/1342-1347 Dated Williamnagar the 15th Nov/06 Copy to:-
1. The State Project Director, [ACT]SMAM & Secretary to the Govt. of Meghalaya, Education Department, Shillong for favour of information.
2. The [ENTITY] for favour of information and necessary action.
3. The Jt. [ENTITY] & Deputy Inspector of Schools, Williamnagar/Resubelpara for information.
4. The Block Dev. Officer & Chairman (All), East Garo Hills for information.
5. The [ENTITY], East Garo Hills for information and necessary action.
6. The Accountant, Office of the [ENTITY] for information. He is to maintain the Stock Register properly
7. Order File concerned.
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar"
5. The petitioner had fully executed the supply order by completing the supply of Text Books for L.P. Schools and EGS Centres as per the terms and conditions of the said Quotation Notice dated 12.07.2006 and the Supply Order dated 15.11.2006 to the respondents with full satisfaction. The petitioner had received the impugned letter dated 08.01.2007 from the District Mission Coordinator, East Garo Hills for deduction of Rs.40/- per child on the basis of instruction received by him against each student for purchase of Exercise Books and the total amount to be deducted from the bill of the petitioner was Rs.22,03,404/- (Rupees twenty two lakhs three thousand four hundred four) only. The said impugned letter dated 08.01.2007 (Annexure-III to the writ petition) reads as follows:-
"OFFICE OF THE DISTRICT MISSION COORDINATOR DISTRICT UNIT [ACT]SMAM EAST GARO HILLS WILLIAMNAGAR No.EGH/[ACT]-12/2006/1401 Dated Williamnagar the 8th January, 2007.
From: District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar. To, M/s Momin Furniture and Stationery, Williamnagar, East Garo Hills. Subject:- Supply of Text Books for L.P. Schools and EGS Schools
and an amount of Rs.40/- per child is to be kept aside for Exercise Books for the year 2006-2007.
Ref: 1. SPD's No.MEGH/[ACT]SMAM/17/2005/[CASE NUMBER] Dtd.29.11.2006.
2. " No.MEGH/[ACT]SMAM/17/144/2005/Pt.1/123 dtd.02.01.2007.
3. This Office Order No.EGH/[ACT]-12/2006/1341 Dtd.15.11.2006.
Sir/Madam, On the subject and letter Nos. quoted above, this is to inform you that an amount of Rs.40/- per child is to be kept aside for Exercise Books out of the total amount of supply order i.e. Rs.22,03,404/- (Rs.40/- x 55085 = Rs.22,03,404/-) as per instruction of the SPD, [ACT]SMAM, Shillong under order referred to above.
Therefore, you are hereby instructed to supply the Text Books for L.P. Schools and EGS Schools for the year 2006-2007 as per Annexure-I and Challans enclosed herewith and the deadline of the completion and conditions of supply will be same as per order under reference.
Enclo:- 1) Annexure I
2) Challans in Triplicate Yours faithfully, Sd/-
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar Memo No.EGH/[ACT]-12/2006/1401 (A) Dated Williamnagar the 8th January, 2007. Copy to:-
1. The [ENTITY], Education Department, Shillong for favour of information.
2. The [ENTITY] for favour of information and necessary action.
3. All members of Purchase Committee District Unit, East Garo Hills, Williamnagar.
4. The Jt. [ENTITY]/Resubelpara for information.
5. The [ENTITY], for information and necessary action.
6. Order File concerned.
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar"
6. It is the further case of the petitioner that the said amount of Rs.22,03,404/- (Rupees twenty two lakhs three thousand four hundred four) only cannot be deducted from the bill of the petitioner in breach of the terms and conditions of the said Quotation Notice dated 12.07.2006 and the terms and conditions of the Supply Order dated 15.11.2006 and also there cannot be unilateral and arbitrary violation of the terms and conditions of the said Quotation Notice dated 12.07.2006 and Supply Order dated 15.11.2006. The petitioner also submitted a petition before the State Project Director (SPD) [ACT]SMAM on 28.01.2007 that as the books had been supplied in full to the District Mission Coordinator ([ENTITY]) as per the Supply Order dated 15.11.2006, the bill for supplying in full may be released. Again, the petitioner addressed a letter to the State Project Director (SPD) through the District Mission Coordinator ([ENTITY]) requesting for release of the full amount for the books supplied vide letter dated 16.05.2007 with copies to the Deputy Commissioner and the District Mission Coordinator, East Garo Hills for favour of information and necessary action. The District Mission Coordinator, East Garo Hills forwarded the said letter to the State Project Director (SPD), [ACT]SMAM, Shillong vide letter No.EGH/[ACT]-12/2007/134 dated 18.05.2007 wherein, he had also mentioned that the order from the State Project Director for deduction of Rs.40/- per child was received after all the formalities for the supply order were completed and he further stated that it was not convenient to process after the supply order had been issued. The said letter dated 18.05.2007 (Annexure-VII to the writ petition) reads as follows:-
"OFFICE OF THE DISTRICT MISSION COORDINATOR DISTRICT UNIT [ACT]SMAM EAST GARO HILLS WILLIAMNAGAR No.EGH/[ACT]-12/2007/134 Dated Williamnagar the 18th May, 2007.
From: District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar. To,
The State Project Director, [ACT]SMAM & Secretary to the Govt. of Meghalaya Education Department, Meghalaya, Shillong.
Subject:- Forwarding of Application along with the enclosures of the Prop. Of M/s Momin Furniture & Stationery, Williamnagar for demand of full payment for supply of Text Books for L.P. Schools for the year 2006-2007.
Ref:- Application Dated Williamnagar, the 16th May, 2007 received from M/s Momin Furniture & Stationery, Williamnagar.
Sir, With reference to the subject mentioned above, I have the honour to forward herewith Application along with the enclosures of the Prop. M/s Momin Furniture & Stationery, Williamnagar which is self explanatory and the following clarifications are being furnished.
1. All formalities for Procurement of Free Text Books for the year 2005-2006 and 2006-2007 have been called on 12.07.2006 and the Purchase Committee had a meeting on 20.10.2006 and 02.11.2006 respectively to approve the rates of the tenderers and adopted the proceedings (vide copy enclosed).
2. Based on the Proceedings and Approved rates of the Purchase Committee, the supply order was issued on 15.11.2006 to M/s Momin Furniture & Stationery, Williamnagar for supply of Text Books for L.P. Schools vide copy enclosed. And then, the supplier has completed the orders to purchase the text books from the concerned publishers by advance payment.
3. Then, after completion of all formalities, the District Unit has received the instruction vide No.MEGH/[ACT]SMAM/17/2005/[CASE NUMBER] dated 29.11.2006 to deduct a sum of Rs.40/- per child for Exercise Books out of the total sanction for the year 2006-2007 and the same letter was also received on 05.12.2006 which is not convenient to process after the supply order has been placed. However, the District Unit, has deducted a sum of Rs.22,03,400/- only from the supplier out of the total supply order, that is, 82,62,800/- then, the problem arises.
Therefore, Sir, I have the honour to request you kindly to take necessary action to accord sanction of fund to repay the deducted amount of Rs.22,03,400/- as claimed by the Supplier so as to avoid further problems in future.
This is for favour of your information and necessary action.
Yours faithfully, Sd/-
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar Memo.No.EGH/[ACT]-12/2007/134 (A) Dated Williamnagar the 18th May, 2007.
Copy to:-
1. The [ENTITY] for favour of information and necessary action.
2. All members of Purchase Committee for information.
3. The [ENTITY] for information.
4. M/s Momin Furniture & Stationery, Williamnagar for information.
([ENTITY]) District Mission Coordinator, District Unit, [ACT]SMAM, East Garo Hills, Williamnagar"
Again, the District Mission Coordinator, [ACT]SMAM, East Garo Hills also wrote a similar letter dated 08.08.2007 to the Deputy Commissioner, East Garo Hills, Williamnagar stating that after the petitioner had fully supplied the Text Books as per the terms and conditions of the Supply Order, the District Unit had deducted a sum of Rs.22,03,400/- only from the total bill for supplying the Text Books under the Supply Order, that is, Rs.82,62,800/- only.
7. The petitioner again wrote a letter dated 17.01.2008 to the Deputy Commissioner & Chairman District Unit, [ACT]SMAM to take prompt necessary steps for releasing the said admitted amount of unpaid bill i.e. Rs.22,03,404/- only for the Text Books supplied by the petitioner in compliance with the original Supply Order. But the respondents had not released the said admitted bill, hence the petitioner filed the present writ petition.
8. The respondents in their affidavit-in-opposition i.e. the affidavit- in-opposition filed by the respondent No.2 are not denying that the said amount of Rs.22,03,404/- only had been deducted from the bill for Text Books supplied by the petitioner in compliance with the terms and conditions of the Quotation Notice dated 12.07.2006 and the Supply Order dated 15.11.2006. The respondents in their affidavit-in-opposition stated that the State Project Director, [ACT]SMAM, MEGH/[ACT]SMAM/17/144/2005/Pt-1/123 dated 02.01.2007, had instructed the District Mission Coordinator, East Garo Hills, Williamnagar to scale down the purchase of Text Books so that the work order for Exercise Books can be placed and from the amount release for supply of Text Books, an amount of Rs.40/- per child should be kept aside.
9. From the respective pleadings of the case of the parties, it is clear that an admitted amount of Rs.22,03,404/- only for supply of Text Books as per the terms and conditions of the said Quotation Notice dated 12.07.2006 and the Supply Order dated 15.11.2006 is yet to be paid by the respondents to the petitioner. The District Mission Coordinator, East Garo Hills in his letter dated 18.05.2007 to the State Project Director, [ACT]SMAM & Secretary to the Govt. of Meghalaya, Education Department, had clearly stated that after completion of all the formalities, the District Unit had received the said instruction i.e. the impugned letter dated 08.01.2007 to deduct a sum of Rs.40/- per child for Exercise Books out of the total sanction amount for the year 2006-2007, which is not convenient to process after the supply order had been placed. However, the District Unit had deducted a sum of Rs.22,03,404/- only from the supplier out of the total supply order, that is, 82,62,800/-, then the problem arises. It is fairly well settled law that the terms and conditions of the NIT i.e. Notice Inviting Tender/Quotation Notice/ and Supply Order issued by the authority accepting the quotations or bids submitted by the bidders or suppliers will be binding to both i.e. authority issuing NIT and supply order and the suppliers. The Apex Court in [PRECEDENT] held that:
"66. We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as under:
(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
iv) The parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;
(vi) The contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority;
(vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.
69. While saying so, however, we would like to observe that having regard to the fact that a huge public money is involved, a public sector undertaking in view of the principles of good corporate governance may accept such tenders which is economically beneficial to it. It may be true that essential terms of the contract were required to be fulfilled. If a party failed and/or neglected to comply with the requisite conditions which were essential for consideration of its case by the employer, it cannot supply the details at a later stage or quote a lower rate upon ascertaining the rate quoted by others."
10. The Apex Court in [PRECEDENT] held that:
"23. Reference was also made to the decision of this Court in [PRECEDENT], which was essentially a decision in regard to the right of every participant to a level playing field in respect of government contracts and the extent of judicial review by the Court under [SECTION], [SECTION] and [SECTION] of the [ACT], in cases of illegality, irrationality, procedural impropriety and Wednesbury unreasonableness."
11. It is also well settled law that [SECTION] of the [ACT] is to be invoked for enforcement of an established right and not for the purpose of establishing a legal right. That a writ court will not entertain a writ petition involving disputed questions of fact is reiterated by the Apex Court in [PRECEDENT]. This is what it said:
"7. In our view, it is apparent that the order passed by the High Court is on the face of it illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under [SECTION] of the [ACT] in a case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a Court exercising prerogative of issuing writs."
12. But the above aforesaid decision does not lay down an absolute rule that in all cases involving disputed questions of fact, the parties should be relegated to a civil suit. Suffice it to refer to the unambiguous observations made by the Apex Court in [PRECEDENT], which are in the following terms:
"Merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat dilatory and expensive process by a civil suit against a public body. The questions of fact raised by the petition in this case are elementary."
13. The writ court entertains the writ petition for a direction to the authorities to pay the undisputed amount of bill to the writ petitioner. Regarding this settled position, it may not be required to burden this Court by citing number of cases in which the High Court by invoking the writ jurisdiction had directed the authorities to release the undisputed amount of bill to the writ petitioner.
14. For the foregoing reasons, this Court is of the considered view that the respondents cannot withhold the undisputed amount of bill i.e. Rs.22,03,404/- only, after the petitioner had fully supplied the Text Books in compliance with the terms and conditions of the Quotation Notice for supply of Text Books dated 12.07.2006 and the Supply Order dated 15.11.2006, in clear violation of the terms and conditions of the Quotation Notice for supply of Text Books dated 12.07.2006 and the Supply Order dated 15.11.2006.
15. In the result, this writ petition is partly allowed by directing the respondents to pay the said amount of Rs.22.03.404/- only to the petitioner within a period of 5 (five) months from the date of receipt of a certified copy of this judgment and order; and also the impugned letters for withholding the said amount of undisputed bill i.e. Rs.22,03,404/- are also quashed and set aside.
16. Parties are to bear their own costs.
JUDGE Lam