M/S Mahibur Rahman vs State Of Assam

Heard Mr. A. Sarma, learned counsel for the petitioners. Also heard Mr. T.C. Chutia, learned State counsel, appearing for the respondent Nos.1 to

5 and Ms. M. Dutta, learned standing counsel, FCI, appearing for the respondent Nos.6 & 7.

The case of the petitioners, as projected in the writ petition, in short, is that pursuant to a Notice Inviting Tender (NIT) dated 14.01.2014 issued by

the respondent No.4, i.e. the Deputy Commissioner, Nagaon, inviting tenders in two-bid tendering system (technical bid and price bid) from the

experienced Handling and Transport Contractors of food grains, sugar, coarse grains or any other essential commodity with strong financial

background for selection and appointment of Handling and Transport Contractor for loading/unloading/handling and transport/ delivery of food grains

etc. at door step in two tier system as indicated therein, the petitioners submitted their tenders for a period of 1(one) year from March, 2014 to

February, 2015.

In the tendering process, the petitioners were selected as Handling and Transport contractor of food grains in Hojai Sub-Division in Nagaon district

under Tier-II and the work order dated 28.11.2014 indicated from which Gaon Panchayat Samabay Samitee (GPSS) they were supposed to collect

and transport food grains from. In the work order dated 28.11.2014, the transportation cost was fixed. Subsequently, the petitioners were asked to

collect food grains from Janakalyan S.S. Limited in respect of some GPSS, who were attached with Janakalyan S.S. Limited. It is pleaded that the

distance between Janakalyan S.S. Limited and the agents of Fair Price Shops is more than 35 Kms. As the transportation cost fixed did not cover the

extra and additional distance which the petitioners were required to transport the food grains, the petitioners submitted a representation dated

27.10.2015 before the respondent No.4 and in the meeting held on 18.02.2016, presided over by the respondent No.4, it was resolved that the

petitioners would be entitled to extra transportation charges as per actual distances. The petitioners had continued to transport food grains and had

submitted bills taking into account the extra distances that the petitioners had to cover and accordingly, extra transportation charge was paid for the

months of December, 2015 and January, 2016. However, subsequently, the extra transportation cost paid for the months of December, 2015 and

January, 2016 being Rs. 1,00,522/-, Rs. 4,37,931/- and Rs. 4,57,871/- in respect of the petitioner Nos.1, 2 and 3, respectively, were deducted and the

actual transportation cost in terms of the resolution adopted in the meeting dated 18.02.2016 was not paid for the months of February, 2016 to April,

2016 and the amounts were kept in the form of banker’s cheque. The same was done on the strength of an order dated 22.09.2016 passed by the

respondent No.4.

At this stage, it would be appropriate to note that the petitioners had filed a writ petition, which was numbered as WP(C) No.4487/2016, praying for

a direction to release extra transport cost based on the resolution dated 18.02.2016. While issuing notice of motion on 01.08.2016, it was observed that

pendency of the writ petition shall not be a bar for the respondents to release the dues of the petitioners for which grievance was raised in the writ

petition.

The order dated 22.09.2016 refers to the aforesaid writ petition and it was observed as follows:-

“From the office records it appears that though the payment to M/s Muhibar Rahman, Md. Abdul Kadir and Md. Muhibul Islam was made as per

the resolution of the minutes of the meeting as cited above but later on the matter was re-examined with this office earlier fixation of rates (ref para-2

above) and it was found that there were excess payment of Rs.1,00,522/-, Rs.4,37,931/- and Rs.4,57,871/- respectively amounting to total of

Rs.9,96,324.00 (Rupees Nine lakhs ninety six thousand three hundred twenty four) only for the month of Dec, 2015 and January, 2016 which needs to

be adjusted depositing the excess amount by the aforesaid transporters and subsequent curtailment of the additional charges claimed by them in the bill

for the month of February, 2016.

Now in pursuance to the contents of the letter of Sr. Govt. Advocate of the Hon’ble Gauhati High Court as stated at Para-3 above and also that

the matter is sub judice in the Hon’ble Gauhati High Court, so considering all the facts and circumstances and also finding no other alternative I,

Sri Shamsher Singh, IAS, the Deputy Commissioner, Nagaon do hereby order that the excess amount above entitlement of Rs.60/- (rupees sixty)

maximum TC for Tier-II transporter for 20 km and above as per order refered at Para-2 above showing individually as M/s Muhibur Rahman â€

Rs.1,51,410/- (one lakh fifty-one thousand and four hundred ten), Md. Abdul Kadir â€" Rs.4,17,695/- (four lakhs seventeen thousand six hundred

ninety five) and Md. Muhibul Islam â€" Rs.4,00,950/-(four lakhs nine hundred fifty) only i.e. total amounting to Rs.9,70,055/-(Nine lakhs seventy

thousand fifty-five) only be kept undisposed in the shape of banker’s cheque, SBI, Nagaon in favour of Deputy Commissioner’s till disposal of

the case or judgment of the Hon’ble Court. The order comes into force with immediate effect.â€​

Today, the aforesaid writ petition was dismissed as infructuous on the statement of Mr. Sarma in view of filing of the present writ petition.

By filing this writ application, the petitioners have prayed for a writ of certiorari quashing and setting aside the said order dated 22.09.2016 passed

by the respondent No.4 and for a writ of mandamus directing the respondents to comply with the resolution of the meeting dated 18.02.2016 and to

release the additional amounts for the months of February, 2016 to April, 2016.

An affidavit-in-opposition was filed by the respondent No.4 admitting that M/s Buragaon, M/s Jugijan and M/s NF Railway Co-operative, Lumding

were attached to Janakalyan S.S. Limited, as a result of which the petitioners had to carry food grains covering additional distances. The stand taken

in the affidavit, in short, is that the admissible transportation cost in case of Tier-II transporters in plain area from 16 Km to 20 Km and above per

quintal was the maximum, which is Rs. 60/-, and, therefore, the resolution dated 18.02.2016 resolving to pay extra charges was adopted due to

oversight. It is also stated that excess amount claimed against February, 2016 to April, 2016 were deducted from the bills of the petitioners and the

amounts were kept in the form of bankers cheque until finalization of the case as the matter was sub judice.

No reply affidavit has been filed by the petitioners to the affidavit-in-opposition filed by the respondent No.4.

Mr. Sarma has submitted that in respect of Tier-II, approximate distance slab to be covered in plain areas in terms of the NIT dated 14.01.2014 is

maximum up to 10 Kms and accordingly, admissible transportation cost per quintal both for APL rice as well as BPL rice in that respect was

determined. The petitioners had quoted their rates accordingly but with the attachment of some of the GPSS with Janakalyan S.S. Limited, the

petitioners had to transport food grains to additional distances by covering about 35 Kms in certain cases and, therefore, the resolution dated

18.02.2016 was adopted. Hence, non-payment of additional charges in terms of the said resolution is arbitrary and illegal.

Mr. Chutia has submitted that the petitioners are not entitled to any amount over and above the rate fixed by the respondent No.4 pursuant to the

NIT dated 14.01.2014 and as erroneously extra payment on additional distance covered was paid, the same was not paid for the months of February,

2016 to April, 2016.

Ms. Dutta submits that the dispute does not pertain to the respondent Nos.6 & 7.

I have considered the submissions advanced by the learned counsel appearing for the parties and have also perused the materials on record.

Tier-I, as per the NIT, relates to services for loading of food grains etc. and transportation from FCI’s Senchowa/Lakhinagar/Itachali/Hojai

FSD (Food Storage Depot) and delivery/unloading/stacking in godowns of WCCS (Wholesale Consumer Co-operative Society)/GPSS. Approximate

distance slab to be covered in plain areas in respect of Tier-I ranges from 0 Km â€" 5 Km to 50 Km and above. Tier-II is in relation to services for

loading of food grains etc. and transportation from WCCS/GPSS godowns and delivery/uploading/stacking in the godowns of Fair Price Shops. From a

perusal of the Tier-II list in the NIT, it appears that the Fair Price Shops are located within 0 Km â€" 10 Km from the WCCS/GPSS godowns.

Though the tender, according to the petitioners, as stated in Paragraph 2 of the writ petition, was for the period from March, 14 to February, 2015,

neither the NIT nor the work order dated 28.11.2014 indicates the period for which the contracts were awarded. In the affidavit of the respondent

No.4, it was indicated that the transporters for Tier-I and Tier-II would start functioning from the month of December, 2014. Mr. Sarma has made a

statement at the bar that the contract expired in the month of December, 2016. Despite none of the parties making the position clear, the same will not

hinder adjudication of the case as the dispute is not period-centric.

As per the order dated 28.11.2014, the petitioner No.1 had to cover (i) Dakhin Jugijan, (ii) Buragaon, (iii) Jugijan, (iv) Jamunamukh, (v) Nahargaon

MP, (vi) No.2 Lumding, (vii) Lanka Marketing and (viii) NF Railay Co-operative, the petitioner No.2 had to cover (i) Dakhin Hojai (Kumrakata), (ii)

Dabaka, (iii) Nilbagan, (iv) Hojai, (v) Kapahbari, (vi) Borbali Samarali, (vii) Dabaka Town Committee and (viii) Hojai Marketing WSCC and the

petitioner No.3 had to cover (i) Pakahat Firming, (ii) Nakhuti, (iii) Kaki, (iv) No.1 Lumding, (v) Lanka Bhalukmari, (vi) Udali, (vii) Lanka Dagaon and

(viii) Namati.

Mr. Sarma has produced before the Court an order dated 21.12.2015, which will go to show that so far as the petitioner No.1 is concerned,

Dabaka, Nilbagan, Kapashbari and Barbali Samarli were attached to Janakalyan S.S. Limited; so far as the petitioner No.2 is concerned, Buragaon

and Jugijan were attached with to Janakalyan S.S. Limited and so far as the petitioner No.3 is concerned, Udali, Lanka Dagaon, Namati, Laskar

Bhalukmari were attached to Janakalyan S.S. Limited.

In the affidavit-in-opposition filed by the respondent No.4, in respect of the statements made in Paragraph 3 of the writ petition that the distance of

Janakalyan S.S. Limited to the agents’ home, meaning thereby the Fair Price Shops, is more than 35 Kms, in Paragraph 5 dealing with Paragraph

3 of the writ petition, it was stated as follows as follows:-

“5. That with regard to the statements made in paragraph No.3 of the writ petition, the answering deponent begs to state that it is true that though

the names of the GPSS in Hojai Sub-Division namely M/s Buragaon, M/s Jugijan and N.F. Rly Co-operative Lumding were mentioned in the order

No.NSG 10/2014/63-64 dated 17/12/2014 and attached against the petitioners name but actually GPSS were tagged with M/s Janakalyan SS Ltd. Vide

Govt. Order No.COOP 83/2006/11 dated 05/06/2006 and as a result the petitioners (i.e. Transporters) obviously had to carry food grains from M/s

Janakalyan SS Ltd., Hojai by coming across additional distances. Further M/s Janakalyan SS Ltd. However was also enlisted in the name of the firm

under Tier-II Transporters for the tagged GPSS etc. for the then Hojai Civil Sub-Division Area vide No.NSG 10/2014/189 dated 13/01/2016 with

retrospective effect from the date of order No.NSG 10/2014/53-54 dated 28/11/2014 and No.NSG 10/2014/63-64 dated 28/11/2014. On the other

hand, for Tier-II Transporters the admissible transportation cost in the distance slab to be covered in plain area from 16 Km to 20 Km and above per

Quintal being the maximum rate was made @ Rs.60/- vide No.NSG 10/2014/53-54 dated 28/11/2014.†From the above, it would appear that the

distance as referred to by the petitioners is not denied. It is also admitted therein that 3(three) Samabay Samitees were  tagged with Janakalyan S.S.

Limited. However, from the documents dated 21.12.2015, as noticed earlier, many other Samabay Samittees were attached with Janakalyan S.S.

Limited.

It appears that in respect of Tier-II, the admissible transportation cost per quintal in respect of approximate distance slab to be covered in plain

area for both APL and BPL rice from 1 Km to 10 Km, 11 Km to 15 Km and 16 Km to 20 Km and above was fixed at Rs. 50/-, Rs. 55/- and Rs. 60/-,

respectively.

The resolution dated 18.02.2016 at Paragraph 2 reads as follows:-

“2. Any tier-II transporter requiring to carry the food grains from M/s Janakalyan SS Ltd., Hojai to the agents/FP Shops of his originally allotted

GPSS vide this office order No.NSG 10/2014/63-64-A dated 28.11.2014 instead from the places of the location of the GPSS namely M/s Buragaon,

M/s Jugijan and N.F. Rly Co-operative Lumding thereby by causing an extra transportation charges than his actual requirement then to allow him or

others to get the transportation charges as per the actual distances for the transportation, i.e. distances of FP Shops/agents from the allotted GPSS

plus additional distanes from the place of the GPSS/WCCs with whom they are tagged if done thereof.â€​

Paragraph 7 of the affidavit makes it clear that for the months of December, 2015 and January, 2016, the excess amounts claimed by the

petitioner Nos.1, 2 & 3, are Rs. 1,00,522/-, Rs. 4,57,871/- and Rs. 4,37,931/-, respectively. It is also appearing therefrom that the petitioner Nos.1, 2 &

3 had claimed additional amount of Rs. 1,51,410/-, Rs. 4,00,950/- and Rs. 4,17,695/-, respectively, for the period from February, 2016 to April, 2016 for

extra transportation distance.

Though the transportation charge fixed for Tier-II had also indicated distances of 11 Km to 15 Km as well as 16 Km to 20 Km and above, a

perusal of the order dated 28.11.2014, as indicated earlier, would demonstrate that the distance between loading points/godowns to delivery

destinations in no case exceeded 10 Kms. Without there being any necessity, as none of the cases fell in that category, rates for 11 Kms to 15 Kms

and 16 Kms to 20 Kms and above distance were fixed. Therefore, the distance 16 Km to 20 Km and above, as indicated therein, would have to be

given an interpretation which will be reasonable, pragmatic and sub-serve cause of justice. It cannot be countenanced, having regard to the factual

matrix, that the slab 16 Km to 20 Km and above would extend to infinity: above would mean marginally above 20 Km. Admittedly, the petitioners had

to carry food grains up to 35 Kms as they were compelled to collect their food grains from Janakalyan S.S. Limited, though they were initially, in

terms of the work order, not required to get the food grains from the said Janakalyan S.S. Limited. If the petitioners were not required to collect food

grains from Janakalyan S.S. Limited, they would have in all cases been transporting food grains within the slab of 1 Km to 10 Kms: Contrast this with

transportation of goods covering distance of 35 Kms. There has been a situational change and the respondents cannot be oblivious of that changed

situation and be rigid to stick to the rate fixed. In view of the ground realities, a pragmatic and equitable resolution was taken on 18.02.2016 entitling

the petitioners to claim actual distances whenever transportation had taken place to Janakalyan S.S. Limited. Payments were also made accordingly

for the months of December, 2015 and January, 2016 and the petitioners had also raised bills for the months of February, 2016 to April, 2016

accordingly. Subsequent decision not to make the payment of the amount of Rs. 1,51,410/-, Rs. 4,00,950/- and Rs. 4,17,695/- for the months of

February, 2016 to April, 2016 holding that any amount beyond the rate fixed vide order dated 28.11.2014 is not admissible, cannot receive judicial

imprimatur.

From the stand taken in the affidavit, to which no reply affidavit is filed as well as from the order dated 22.09.2016, it is seen that payment made to

the petitioners for the months of December, 2015 and January, 2016 in excess of the rate fixed were not deducted from subsequent bills of the

petitioners. The order dated 22.09.2016 only contemplated adjustment of the excess amount.

Accordingly, the writ petition is allowed providing that the additional amount paid to the petitioners for the months of December, 2015 and January,

2016 shall not be recovered from the petitioners. The respondents are directed to pay the sum of Rs. 1,51,410/-, Rs. 4,00,950/- and Rs. 4,17,695/- for

the period from February, 2016 to April, 2016 to the petitioner Nos.1, 2, & 3, respectively, which, according to the respondents, had been kept in the

form of banker’s cheque until finalisation of this case. The amounts in question shall be paid to the petitioners within a period of 1(one) month

from the date of receipt of a certified copy of this order.

No cost.