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2020 (4) TMI 884
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....ted by it vide G.O.Ms. No. 1 dt. 10-1-2006 and G.O.Ms. No. 1 dt. 9-1-2007, the then State of Andhra Pradesh came to the conclusion that Cloud Seeding technology was not only scientific, but is also a proven technology and an effective weapon to fight recurring droughts, and that results showed that it enhances the rainfall to the tune of 15% on an average, in public interest, decided to adopt the same to augment the rainfall in these areas. It proposed to conduct Cloud Seeding operations for 120 days each year from 2007. 5. The Centre for Atmospheric Sciences and Weather Modification (Cloud Seeding) Technologies, the Jawaharlal Technological University, Hyderabad (3rd respondent) was roped in by the State as a nodal agency to carry out these operations. 6. It is not in dispute that directives were issued by the then Government of Andhra Pradesh pursuant to which the 3rd respondent's governing authority elected to pursue the Cloud Seeding program, with the primary objective of increasing rainfall over a target area in a safe and efficient manner and also to conduct research studies for scientific studies of the cloud physics of the region; and the then Government of Andhra Pra....
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....ion advance was not released for 2008 for which it addressed letters dt. 11.08.2008, 23.08.2008, 28.08.2008, 04.09.2008, 19.09.2008, 13.10.2008, 16.10.2008, 20.10.2008 and 23.10.2008. 17. Ultimately, the E.M.D. of Rs. 30 lakhs paid by the petitioner was returned on 16.12.2008. However, the balance payment for Cloud Seeding operations for 2007 and full payment for such operations in 2008 were not released even though petitioners addressed letters dt. 29.12.2008, 02.02.2009 and 19.09.2009. 18. Much later the 3rd respondent issued letter dt. 11.06.2009 certifying that the 1st petitioner is due Rs. 22,67,88,907/-. But, notwithstanding the same, no payments were released. The 3rd contract dt. 20.7.2009 19. Thereafter, in 2009 also a short tender notice for Cloud Seeding operations was issued by the then State of Andhra Pradesh on 14.06.2009. 20. Again, the 1st petitioner submitted its bid and a contract was awarded to it by the 3rd respondent on 20.07.2009 for taking up said operations in the above 12 districts costing Rs. 25,40,57,800/-. The 1st petitioner successfully carried out the said operations also. Only part payment was made to the 1st petitioner leaving a balance of Rs. 1....
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....e XXXII) to which a reply dt. 02.05.2014 was issued by the 2nd respondent that the issue of payment of amounts to the 1st petitioner is under consideration and that they were awaiting certain clarifications from the Vice-Chancellor of the 3rd respondent-University. After bifurcation of the composite State of Andhra Pradesh 31. Subsequently, the composite State of Andhra Pradesh was bifurcated into the new State of Telangana (1st respondent) and the residuary State of Andhra Pradesh (2nd respondent) w.e.f. 02.06.2014. 32. The petitioners contend that they sent reminders dt. 12.09.2014 to the Chief Ministers, Chief Secretaries and Secretaries of G.A.D. Department of both States (Annexures XXIII to XXVIII) seeking Rs. 40,28,47,380/- though it is entitled to Rs. 49.26 crores. 33. Petitioners contend that there were disputes between the 2nd petitioner and the other partner Sri Arvind Sharma which were adjudicated by a sole arbitrator on 19.10.2013 by consent memo permitting the 2nd petitioner alone to collect payment and to issue valid receipt to the agencies for the payments payable to the 1st petitioner (Annexures XXX and XXXI). 34. According to the petitioners, it had executed t....
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....he counter affidavits filed by respondents 1 and 2, not a single document is filed wherein the respondents had denied the claim of the petitioners prior to the filing of the instant Writ petition. 46. Arguments were heard on 2-1-2020 and 7-1-2020 and orders were reserved. 47. To avoid repetition of the contentions they are discussed under various headings mentioned below and dealt with by us. (a) Whether the existence of alternative remedy by way of a Civil Suit is a bar to entertaining the Writ Petition? 48. It is the contention of the respondents that there are disputed questions of facts arising for consideration in the Writ Petition and that the petitioners should therefore approach the Civil Court for appropriate relief and the Writ Petition ought to be dismissed as not maintainable. 49. This contention is without any merit because the Supreme Court in ABL International Ltd. and another Vs. Export Credit Guarantee Corporation of India Ltd. and others (2004) 3 SCC 553 has held that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining a petition under Article 226 of the Constitution of India is not a....
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....ntre for Atmospheric Sciences and Weather Modification (Cloud Seeding) Technologies of the 3rd respondent University informed the Principal Secretary of the Rain Shadow Area Development Department of the composite State of Andhra Pradesh that the 1st petitioner is entitled to payment of Rs. 22,67,88,907/- for the operations done in 2008 and enclosed a certificate of acceptance also. 55. Vide G.O.Rt. No. 499, Finance (EXPR A & C) Department, dt. 10.02.2010, the State of Andhra Pradesh released Rs. 20,64,38,907/- to the petitioners for Cloud Seeding operations in 2008. 56. The Note File C. No. 7980/364/A2/EAC/2011 at page 27 (running page 131 in the paper book filed by the petitioners) of the Finance (EAC) Department contains a statement dt. 22.08.2011 that Rs. 40,28,47,380/- has to be paid to the 1st petitioner for Cloud Seeding operations for 2007-08, 2008-09, 2009-10. 57. The Note File C. No. 327/RS-II/09 (at running page 204 to 211 of the paper book filed by the petitioners) records on 29.08.2011 from page 43 onwards details of the work done by the petitioners for 2007, 2008 and 2009, that Rs. 69,13,956/- is payable to the 1st petitioner for 2007-08, that Rs. 22,67,88,907/- ou....
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....'. (emphasis supplied) 63. Below this endorsement are are signatures of the then Minister (RSAD) (on 07.09.2012), Minister (Finance) (on 11.09.2012) and the then Hon'ble Chief Minister Kiran Kumar Reddy (on 09.01.2013) below the above endorsement. 64. This indicates that at the highest level there was approval to make payment of Rs. 40.28 crores to the petitioners and that the said liability was thus expressly admitted by the then State of Andhra Pradesh. 65. As pointed out above, not a single material paper is filed by respondents 1 and 2 showing that at any point of time they had denied the claim of the petitioners for the amount of Rs. 40.28 Crores for Cloud Seeding operations done by the petitioners in 2007,2008 and 2009. 66. On 02.05.2014, vide letter No. 164/RS.II/2014, the Secretary to the Government of Rain Shadow Area Development Department of the composite State of Andhra Pradesh replied to the legal notice issued by the petitioners through M/s. Juris Consult (Advocates) on 11.04.2014 that the "matter of balance payment to M/s. Agni Aviation Consultants for conducting Cloud Seeding operations for 2007, 2008 and 2009 is under consideration and awaiting f....
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....mpowered by the Government in that behalf, it is required to be communicated to the person concerned by the State Government. The Court explained that so long as the decision based on such internal deliberation is not approved and communicated by the competent authority as per the procedure prescribed in that behalf to the person concerned, such noting does not create any right in favour of the person concerned nor would it partake the nature of any legal order so as to enable the person concerned to claim any benefit of any such internal deliberation; and that such noting(s) or/and deliberation(s) are always capable of being changed or/and amended or/and withdrawn by the competent authority. 71. The Pimpri Chinchwad New Township Development Authority (2018) 8 SCC 215, at page 225 (Supra) related to withdrawal of a Notification issued under the Land Acquisition Act, 1894 after possession of the land acquired was taken by the State and it considered the question whether noting on the file by a Minister to release the land could be taken to be the decision of the Government. The Court held that the Minister had no such power and he had usurped the power of the Government. 72. Assum....
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.... 78. When the 1st petitioner had performed Cloud Seeding Operations between 2007 and 2010 in the erstwhile composite State of Andhra Pradesh, and even the then Chief Minister had admitted the liability and approved payment of the dues of the 1st petitioner, it is not open to the successor States to raise a dispute for the first time in December, 2019 about the genuineness of the claims of the petitioners. 79. As observed in Popatrao Vyankatrao Patil Civil Appeal No. 1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief Justice of India, Justice B.R. Gavai and Justice Suryakant (supra) by the Supreme Court, the State should act as a model litigant. It quoted it's decision in Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512. 80. In Urban Improvement Trust, Bikaner (2010) 1 SCC 512 (supra) the Supreme Court has criticized the attitude of Government officials in deliberately delaying taking crucial decisions affecting citizens and then contesting the same on technical pleas without justification. It declared: "5. ... ... Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants....
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....o forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.'" 8. In Madras Port Trust v. Hymanshu International 1979 (4) SCC 176 this Court held: (SCC p. 177, para 2) "2. ... It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable." 9. In ....
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....ot be entertained 84. Though the respondents cited the decision in Joshi Technologies International INC Vs. Union of India and others (2015) 7 SCC 728 and sought to contend that Writ Petitions on contractual matters were not maintainable, as stated in ABL International (2004) 3 SCC 553 (supra), 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. Even in Popatrao Vyankatrao Patil Civil Appeal No. 1600 of 2020 decided on 14.02.2020 by a Three Judge Bench headed by Chief Justice of India, Justice B.R. Gavai and Justice Suryakant (supra), in a contractual dispute the Supreme Court granted relief to a party in a contractual dispute finding fault with the High court which denied it under Art. 226 of Constitution of India. 85. Therefore we reject this contention of the respondents. Plea of bar of Limitation 86. The next contention raised by the 1st respondent, i.e., the State of Telangana is that the claim of the Writ Petitioner is barred by limitation. The instant Writ petition was filed by the petitioners on 7.1.2016. 87. As mentioned supra in para 32, Clause 3.3 of each of the Cloud Se....
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....writing :- (1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing, signed by the party against whom such property or right is claimed, or by any person through whom he derives is title or liability, a fresh period of limitations hall be computed from the time when the acknowledgment was so signed. (2) .... ..... Explanation :- For the purpose of this section- (a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or averse that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, delivery, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right; (b) the work 'signed' means signed either personally or by an agent duly authorized in this behalf; and (c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or ....
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....ld be found due from the person making the admission or that on an account being taken something may be found due and payable to the person making the acknowledgement by the person to whom the statement is made." (emphasis supplied) 97. In J.C. Budhraja vs. Chairman, Orissa Mining Corporation Ltd. and another (2008) 2 S.C.C. 444 also the Supreme Court further explained that if a defendant writes to the plaintiff requesting him to send his claim for verification and payment, it amounts to an acknowledgment of liability. In that case the respondent before the Supreme Court wrote a letter dt. 28-10-1978 to the appellant as under: "Re.: Settlement of pending claims. You had called on Chairman, OMC, recently and apprised him of the dues receivable by you in respect of certain long pending matters such as mine benches work and raising at Kaliapani Quarry I. In the matter of Kaliapani it has been decided to constitute a committee which will go separately into your claims and other facts, in which connection you are requested to give all possible help and assistance, so that your dues, if any, will be ascertainable. In regard to other pending matters, you h....
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.... only to an extent of Rs. 3,52,916 as per its final report dated 7-12-1979. OMC paid Rs. 3,50,000 on 4-3-1980. 23. In view of the acknowledgment in writing on 28-10-1978 and payment of Rs. 3,50,000 on 4-3-1980, it can be said that in regard to the pending claims of the contractor, the limitation stood extended by three years from 4-3-1980 and at all events by three years from 28-10-1978." 98. In Prabhakaran and others vs. M. Azhagiri Pillai (dead) by LRs. And others (2006) 4 S.C.C. 484 the Court held that to amount to an acknowledgement, it need not be in a document addressed to the petitioner/plaintiff. It summed up the principles in the following terms: "20. ... ... .... To summarise, a statement (in writing and signed) by a mortgagee can be construed as an "acknowledgment" under Section 18 of the Limitation Act, if it fulfills the following requirements: (i) The acknowledgment of liability must relate to a subsisting mortgage. (ii) The acknowledgment need not be in a document addressed to the mortgagor (person entitled to the property or right). But it should be made by the mortgagee (the person under liability). (iii) The words used in t....
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....ot addressed to the creditor specifically. (Zest Systems Pvt. Ltd., Vs. Center for Vocational and Entrepreneurship Studies and Another, Bhajan Singh Samra Vs. Wimpy International Ltd., Vijay Kumar Machinery and Electrical Stores Vs. Alaparthi Lakshmi Kanthamma (1969) 74 ITR 224 (AP) and Bengal Silk Mills Company, Rajah of Vizianagaram Vs. Official Liquidator, Vizianagaram Mining Company Limited AIR 1952 Madras 1361). 101. Therefore it is not necessary that the acknowledgment of liability must be contained in a document addressed to the creditor i.e. the petitioners in the instant case. 102. In our view, the file notings obtained under the Right to Information Act, 2005 which contain statements about obligation of the then State of Andhra Pradesh to pay the dues of the petitioners are 'acknowledgements of liability' under Section 18 of the Limitation Act, 1963, and that they relate to a present subsisting liability and indicate the existence of jural relationship between the parties, i.e., that of a debtor and a creditor and the intention to admit such jural relationship, and extend the period of limitation. RE: claim of petitioner under the first contract dt. 4.7.2007 1....
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....vant states: "an agreement made without consideration is void unless it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law of limitation of suits." 112. In Bombay Dyeing & Mfg. Co. Ltd. v. State of Bombay AIR 1958 SC 328, the Supreme Court had held: "Under Section 25(3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount." 113. At page 69 para No. 256 in File C. No. 327/RS.II/2009 (Page 230 of the papers filed by the petitioners) there is an endorsement: 'in view of the above, the file may be circulated to Hon'ble C.M. through Principal Secretary Fin (R&E)/Chief Secretary/Minister (RSAD)/Minister (Finance) for sanction of an amount of Rs. 40,28,47,380 towards pending payment to M/s. Agni Aviation Consultants for conducting Cloud Seeding Operations during the years 2007, 2008 and 2009 and for placing the matter before the Cabinet'. (emphasis supplied) Thereafter, at page 72 at para No. 266 (on page 233 of ....
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....to Government, Rain-Shadow Area Development Department addressed to the 1st petitioner would fall in this category and, in our opinion, extend the period of limitation for filing the Writ Petition upto 11.4.2017 (3 years from 11.4.2014 letter) in regard to the claim for the first contract of 2007-08 to the extent of Rs. 69,13,956/- which was due and payable to the petitioners. 119. So we hold that the claim of the petitioners for Rs. 69,13,956/- for the 2007 first contract for Cloud Seeding is well within time since the instant Writ Petition was filed on 7-1-2016. RE: claim of petitioner under the second contract dt. 25.07.2008 120. In respect of this claim for payment under the 2nd Cloud Seeding contract for 2008, in the letter No. JNTUH/CAS&WMT/162 dt. 11.06.2009 addressed by the 3rd respondent to the Principal Secretary, Rain-Shadow Areas Development Department, Government of A.P., it is stated that a sum of Rs. 22,67,88,907/- is payable to the petitioners. 121. This extends the limitation period upto 10.6.2012. 122. In the documents issued under the Right to Information Act, 2005 there is a File C. No. 327/RS.II/09 on which a noting was made on 10.08.2009 referring to the ....
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....,70,000/- Remaining Balance to be paid ... Rs. 22,67,88,907/-" 129. These statements also amount to acknowledgments of liability under Sec. 18 of the Limitation Act, 1963 and extends the limitation upto 28-8-2014. 130. Before this date, as we have stated above, the Hon'ble Chief Minister at that time Sri Kiran Kumar Reddy on 09.01.2013 had granted approval for the payment of Rs. 40.28 crores to the petitioners including the claim of the petitioners for 2008. 131. This also would also extend the period of limitation by three more years, carrying it to 08.01.2016. Before that date, on 07.01.2016, the instant Writ Petition was filed in the High Court as mentioned above. 132. Even otherwise, the contents of the letter dt. 28.03.2012 and letter dt. 11.04.2014 of the Secretary to Government, Rain-Shadow Area Development Department addressed to the 1st petitioner, as explained above as per the principle in J.C. Budhiraja (2006) 4 S.C.C. 484 (Supra), would extend the period of limitation for filing the Writ Petition upto 11.4.2017 (3 years from 11.4.2014 letter) in regard to the claim for the second contract of 2008 for Rs. 22,67,88,907/- which was due and payable to the petition....
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....the 1st petitioner - Firm in this Writ Petition: 141. The 1st petitioner is admittedly a partnership Firm in which the 2nd petitioner and one Arvind Sharma were partners. 142. These disputes were referred to a sole arbitrator Justice M.P. Chinnappa, a retired Judge of the High Court of Karnataka. 143. Before the said Arbitrator, both the partners filed a joint memo on 17.10.2013 authorizing the 2nd petitioner to collect payment and to issue a valid receipt to the agencies for the payments received unto and on behalf of the 1st petitioner-Firm subject to honouring the directions given in the order passed on 19.10.2013 by the said Arbitrator. 144. This was also communicated to the respondents, according to the petitioner. 145. In the note file C. No. 327/RS.II/09 at page No. 21 (page 182 onwards filed by the petitioners), there is a reference to this arbitration and even a legal opinion was obtained from the Advocate-General on the said aspect at pg. 194 of the material papers filed by the petitioners. 146. According to the respondents, there would be a risk to the respondents if the payments were all released to the 2nd petitioner on behalf of the 1st petitioner. 147. However....
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....ete transactions begun but unfinished at the time of the dissolution, but not otherwise. 4. The execution of the decree in question was surely not any new transaction. It was a decree in favour of the firm and being an asset of the firm it was the duty of the partners to collect it and Navrang Lal being one of the partners of the dissolved firm could surely perform that duty and had the necessary authority to do so under Section 47 of the Indian Partnership Act, 1932. His actions were binding on the firm, that is to say on of the partners of the dissolved firm. ... ..." 150. No decision to the contra was cited by the counsel for respondents. 151. In view of the clear provision in Section 47 of the Indian Partnership Act, 1932 and the decisions referred to above, the payments due to the 1st petitioner-Firm can certainly be made to the 2nd petitioner and such payments would bind the 1st petitioner as well. RE : Distribution of the liability between the new State of Telangana and the residuary State of Andhra Pradesh: 152. A curious contention was raised by the Special Government Pleader for the State of Telangana that most of the Districts in which the contract for Cloud ....