Gunjan Kumar Mandal vs State Of Jharkhand And Ors

This writ petition is under Article 226 of the Constitution of India whereby and whereunder the petitioner has sought for direction upon the respondents to refund the amount of Rs.5,27,090/- which was deposited by the petitioner in different dates for settlement of Bus Stand, Godda for the period from 01.04.2016 to 31.03.2017.

The brief facts of the case of the petitioner is that in pursuance to the Dak Bandobasti Notice No.04/2015-16 as contained under Annexure-1, the petitioner has participated in the bid for the process of settlement of Bus Stand, Godda within the period from 01.04.2016 to 31.03.2017, the petitioner has deposited the security amount to the tune of Rs.95,020/-. The said notice contains a condition under Clause 5 to the effect that the higher bidder would be allotted work but immediately after the allotment of the work the next following date i.e., on 16.03.2016 till 3:00 pm. 50 per cent of the bid amount mandatorily to be deposited either by bank draft/cash and if in case the applicant fails to submit the aforesaid amount within the stipulated time frame the amount deposited would be forfeited and the settlement to be given to the second/third bidder and the defaulter would be liable/responsible for the same and he will have no claim in future.

The petitioner has declared to be successful bidder but he has not deposited the 50 per cent of bid amount by 16.03.2016 up to 03:00 pm, however, has not deposited the amount as per the communication dated 28.03.2016 and as on 01.09.2016 resulted into the cancellation of the allotment of work and thereafter, the work order has been issued in terms of the condition stipulated under the Clause No.5 to the settlement notice.

The petitioner before this Court seeking direction for refund of the said amount which has been deposited by him by way of security deposited or earnest money on the ground that the respondent authorities have extended time by way of relaxing the condition No.5 by issuing a letter dated 28.03.2016 as contained under letter No.563/Godda (Annexure-A) to the counter affidavit, therefore, the Clause No.5 having been relaxed and in pursuance thereto, the amount has been deposited, hence the authority has got no right to withhold the same amount.

Mr. D.C. Mishra, learned A.C. to Sr. S.C.-III, representing the State of Jharkhand has submitted that counter affidavit has been filed on behalf of State of Jharkhand, putting reliance upon the same, has submitted by making reference of the Condition No.5 as contained in the settlement notice since the petitioner has not complied with the aforesaid condition, hence he is not entitled to make the refund of the said amount.

So far as the contention raised by the petitioner by making reference of the communication dated 28.03.2016 the submission has been made even by communication dated 28.03.2016 the relaxation in the Condition No.5 has been granted only up to 31.03.2016 but the said amount has been deposited on 01.09.2016, therefore, even on the basis of the said relaxation having been granted by the respondent authorities in favour of the petitioner, the same has also not been complied with and as such the petitioner is not entitled to get the amount.

Having heard the learned counsel for the parties and on appreciation of their rival submissions and after going across the pleading made by the respective parties it is evident therefrom that the petitioner has participated in the process of "settlement of Sairat Bandobasti" being Notice No.04/2015-16 the application has been invited to the interested person/entrepreneurs for consideration of their candidature of settlement of Sairat, one of the settlement is for Bus Stand, Godda for a period of one year from 01.04.2016 to 31.03.2017. The Security amount deposited by the petitioner, which was required to be deposited by one or the other bidders is an amount of Rs.9,50,200/- and the earnest money required to be deposited to the tune of Rs.95,020/-. The said notice also contain certain terms and conditions i.e. the settlement would be made in favour of the higher bidders and clause No.5 speaks about and condition that in case of allotment to higher bidders, he will has to make payment of the 50 percent of total bid amount by 3:00pm up to 16.03.2016. It is the admitted case of the petitioner which also appears from the communication dated 28.03.2016, 28.02.2017, 18.03.2017 and 22.05.2017 annexed to the counter affidavit.

It is further evident that the work order has been decided to be issued in favour of the petitioner since he is found to be the highest bidder by rating an amount of Rs.13,05,000/-. Against the said amount quoted in the said notice, petitioner was required to deposit 50 percent up to 03:00pm by 16.03.2016 which comes to Rs.6,07,500/- but he has only deposited Rs.3,65,090/-, therefore, he has been asked to deposit the remaining amount of Rs.2,42,410/- by 31.03.2016 so that the appropriate work order be issued for the financial year 2016-17 in his favour otherwise the authority will be compelled to take action for forfeiting the security amount and the action in pursuance to the condition of the tender would be taken.

The similar direction has been issued to the petitioner vide communication dated 28.02.2017, 18.03.2017 and 22.05.2017.

These documents as has been annexed to the counter affidavit i.e. the communication dated 28.02.2017, 18.03.2017 and 22.05.2017 does suggest that the petitioner has failed to comply with either the deposit of the 50 percent of the bid amount or the total amount as per the rate quoted by him for issuance, therefore, the work order has never been issued in his favour.

The petitioner is seeking a direction from this Court to direct the authorities to refund an amount of Rs.5,27,090/- as has been deposited by him, cannot be directed to be refunded in view of the fact that the petitioner has failed to comply with the terms and conditions stipulated in the settlement notice and in view thereof, the work order has not been issued which caused loss to the public exchequer and inconvenience to the people in general.

Further if any order will be passed by this Court, it would amount to re-writing the terms of contract which is not permissible under Article 226 of the Constitution of India as has been decided by the Hon'ble Apex Court in the case of Union Territory of Pondicherry and Ors Vs. P.V. Suresh and Ors., reported in (1994) 2 SCC 70 wherein at paragraph 11 & 12 it has been held that the Court has no jurisdiction to alter the terms or re-write the contract between the parties.

In the case of Polymat India (P) Ltd. and Anr. Vs. National Insurance Co. Ltd. and Ors., reported in (2005) 9 SCC 174 wherein the Hon'ble Apex Court by taking aid of the judgment rendered in the case of United India Insurance Co. Ltd. Vs. M.K.J. Corp., reported in (1996) 6 SCC 428 has been pleased to observe that "after the completion of the contract, no material alteration can be made in its terms except by mutual consent".

It is further settled that if the contract between the parties is in the realm of the private law, not being a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter of agitation by a Civil Court or in arbitration if provided for in the contract. Reference in this regard may be made to the judgment rendered by the Hon'ble Supreme Court in the case of Kerala State Electricity Board and Anr. Vrs. Kurien E. Kalathil and Ors., reported in (2000) 6 SCC 293, herein, in the instant case, the agreement as contained in Annexure-1 is totally in the private realm having not been statutory and therefore the application itself under Article 226 of the Constitution of India is not held to be maintainable.

This Court is of the further view that the said amount has been disputed by the respondents and therefore, in a case of disputed money claim, the remedy of the writ jurisdiction is not proper to be exercised by the High Court.

In view thereof, this Court is not inclined to pass any positive order in favour of the petitioner accordingly, the writ petition fails and is dismissed.