Lubi Industries Llp v. State of Assam and 10 Ors

PageoNo.#o1/7 GAHC010157162018 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWA/291/2018o LUBIoINDUSTRIESoLLPo FORMERLYoKNOWNoASoM/S.oMIRAoINDUSTRIES,oAoLIMITEDoLIABILITY,o HAVINGoITSoREGD.oOFFICEoNEARoKALYANoMILLS,oNARODAoROAD,o AHMEDABADo380025oINDIA,oANDoISoREPRESENTEDoINoTHEoPRESENTo PROCEEDINGoBYoITSoAUTHORIZEDoSRIoPRAMODoGAUTAM,oNATIONALo HEADoDOMESTIC,oINSTITUTIONALoandoGOVT.oBUSINESS,o1105AoADVANT.o NAVISoBUSINESSoPARK,oSECTORo142oNOIDAo201305oU.P,oINDIA. VERSUSo STATEoOFoASSAMoANDo10oORSo REP.oBYoTHEoADDL.oCHIEFoSECRETARY,oSOILoCONSERVATIONoDEPTT.,o GOVT.oOFoASSAM,oDISPUR,oGHY.-06. 2:THEoPRINCIPALoSECY. oGOVT.oOFoASSAM oSOILoCONSERVATIONoDEPTT. oDISPURoGHY.-06. 3:STATEoLEVELoNODALoAGENCY oINTEGRATEDoWATERSHEDoMANAGEMENToPROGRAM oASSAM oOFFICEoOFoTHEoSTATEoLEVELoNODALoAGENCYoIWMP oBHUMIoSANGRAKSHANoBHAWAN oR.G.oBARUAHoROAD oGHY.-05 oANDoISoREP.oBYoITSoCHAIRMAN. 4:CHAIRMAN oSTATEoLEVELoNODALoAGENCYoIWMP oBHUMIoSANGRAKSHANoBHAWAN oR.G.oBARUAHoROAD oGHY.-05. PageoNo.#o2/7 5:THEoCHIEFoEXECUTIVEoOFFICER oSTATEoLEVELoNODALoAGENCYoIWMP oBHUMIoSANGRAKSHANoBHAWAN oR.G.oBARUAHoROAD oGHY.-05. 6:THEoPROJECToMANAGER oWCDC oANDoPIAoOFoIWMPoPROJECToALL oBONGAIGAON.783380 7:THEoPROJECToMANAGER oWCDC oANDoPIAoOFoIWMPoPROJECToALL oDHUBRI.783301 8:THEoPROJECToMANAGER oWCDC oANDoPIAoOFoIWMPoPROJECToALL oGOALPARA.o783101 9:THEoPROJECToMANAGER oWCDC oANDoPIAoOFoIWMPoPROJECToALL oBARPETA.o781309 10:THEoPROJECToMANAGER oWCDC oANDoPIAoOFoIWMPoPROJECToALL oKOKRAJHAR.o783370 11:THEoPROJECToMANAGER oWCDC oANDoPIAoOFoIWMPoPROJECToALL oLAKHIMPUR.o78700o oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 3/7 For the appellant : Mr. R. Baruah, Mr. N.M. Dutta, Mr. S. Kashyap, Advocates. For the respondents : Mr. D. Saikia, Advocate General, Assam, Ms. R.S. Deori, S.C., Soil Department Ms. P. Baruah, Advocate

– B E F O R E – HON'BLE THE CHIEF JUSTICE MR. VIJAY BISHNOI HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA 18-04-2024 (Vijay Bishnoi, C.J.)

¶1This writ appeal is filed by the appellant being aggrieved with the judgment and order dated 21.06.2018 passed by the learned Single Judge in writ petition, being, WP(C) No.7787/2015 whereby the writ petition filed by the writ petitioner (appellant herein) has been dismissed with certain observations.

¶2The brief facts of the case are that the writ petitioner/appellant has claimed that as per the requisition sent by the Executive Officer, State Level Nodal Agency (SLNA), it had supplied 4745 Centrifugal Pump of 2 HP. However, the State has refused to make payment of an amount of Rs.6.39 Crores approximately against the supply of the said Centrifugal Pump sets. The learned Single Judge after considering the case of the appellant as well as the respondents has dismissed the writ petition mainly for the following reasons: a) no contract between the State and the appellant was executed as Page No.# 4/7 required under Article 299 of the Constitution of India and no contract was executed by such person in such manner as may be authorised by the Governor in terms of Article 166 of the Constitution of India; b) before issuing the supply order dated 19.02.2014 by the Chief Executive Officer, SLNA, no tender was invited; c) the DPR was not provided for supply of 2 HP Centrifugal Pump-sets; d) There was no budgetary provisions for procurement of 2 HP Centrifugal Pump-sets; and e) the Pump-sets already supplied by the appellant has not been used by the respondents. The learned Single Judge has also recorded a finding that while procuring the pump-sets, the mandatory provisions of Section 7 of The Assam Fiscal Responsibility and Budget Management Act, 2005 (for short '2005 Act'), were not followed.

¶3However, while dismissing the writ petition, the learned Single Judge has clarified that if the appellant intends to take back the pump-sets already supplied by it, the same may be returned to the appellant within 30 days from the date of receipt of a written request made to that effect by the appellant, addressed to the Additional Chief Secretary to the Government of Assam, Soil Conservation Department.

¶4The learned Single Judge has further clarified that notwithstanding this order and the return of the pump-sets, it would still be open to the writ petitioner to institute appropriate legal proceedings for damages and compensation on account of any loss or injury suffered by it due to the wrongful action of such person(s) responsible for the same.

¶5Assailing the impugned judgment and order, Mr. R. Baruah, learned counsel for Page No.# 5/7 the appellant has argued that though no contract between the appellant and the State respondents was executed in terms of Article 299 and Article 166 of the Constitution of India, by virtue of Section 70 of The Indian Contract Act, 1872 (for short '1872 Act'), the appellant is entitled for compensation as he has acted lawfully and delivered the pump-sets without any intension to do so gratuitously and the Government has enjoyed the benefit of the pump-sets.

¶6It is contended that though the learned Single Judge has clarified that it is open to the appellant to institute appropriate legal proceedings for damages and compensation on account of loss or injury suffered by it, at the same time, an observation was made in the impugned judgment and order that the principles underlying Section 70 of the 1872 Act would not have any application in the facts of the present case. Learned counsel has submitted that the said observation made by the learned Single Judge is unwarranted as the appellant can very well demonstrate before the appropriate forum that all the three conditions mentioned in Section 70 of the 1872 Act are satisfied and therefore, the appellant is entitled for compensation. It is also submitted that in view of the said observation made by the learned Single Judge, the appellant cannot even approach the appropriate forum by instituting legal proceedings for compensation.

¶7Per contra, Mr. D. Saikia, learned Advocate General, Assam appearing for the respondent State has supported the judgment dated 21.06.2018 passed by the learned Single Judge. However, he has submitted that for the purpose of seeking compensation in terms of Section 70 of the 1872 Act, the petitioner is required to adduce evidence that the three conditions mentioned in Section 70 of the 1872 Act have been fulfilled and the said question cannot be decided by this Court while entertaining the writ petition under Article 226 of the Constitution of India. It is contended that for seeking compensation, the appellant has to approach the appropriate forum and then to prove his case by adducing evidence. Page No.# 6/7

¶8Heard learned counsel for the parties and perused the material available on record. After going through the impugned judgment and carefully scrutinising the material available on record, we are of the view that the learned Single Judge has rightly not interfered since no contract was executed between the appellant and the State in terms of Articles 299 and 166 of the Constitution of India. Further, the provisions of Section 7 of the 2005 Act have also not been followed before issuing the supply order to the appellant. The person, who has placed the order for supplying the pump-sets was not authorised to do so and without there being any justification, order for supplying the pump-sets was placed.

¶9So far as the contention of the appellant regarding entitlement of compensation under Section 70 of the 1872 Act is concerned, we are of the view that the said question cannot be decided in a writ petition filed under Article 226 of the Constitution of India because the person, who is claiming compensation by invoking Section 70 of the Act, has to satisfy all the three conditions. The first condition is that a person should lawfully do something for another person or deliver something to him; the second condition is that in doing the said thing or delivering the said thing, he must not intend to act gratuitously; and the third condition is that the other person for whom something is done or to whom something is delivered, must enjoy the benefit thereof. For satisfying these conditions, the person is required to adduce evidence. Taking into consideration the above circumstances, we are of the view that the observations made by the learned Single Judge in the impugned judgment dated

21.06.2018 that the principles underlying Section 70 of the 1872 Act have no application in the facts of the present case, are unwarranted as the said observation may affect the appellant in case the appellant institute appropriate legal proceedings for compensation.

¶10In such circumstances, we deem it appropriate to dispose of this writ appeal Page No.# 7/7 while observing that the observations made by the learned Single Judge in the impugned judgment and order dated 21.06.2018 that the principles underlying Section 70 of The Indian Contract Act, 1872 has no application in the facts of the present case, are to be treated as deleted from the impugned judgment. However, rest of the order passed by the learned Single Judge is not interfered with. Ordered accordingly.

JUDGE CHIEF JUSTICE

Comparing Assistant