RASHMIKANT BABUBHAI PATEL Vs. GUJARAT ELECTRICITY BOARD

JUDGEMENT

(1.) Orginal petitioners being aggrieved with the order of the learned Single Judge (N. H. Bhatt J ) dismissing the Special Civil Application invoking the writ jurisdiction of this court for appropriate writs orders or directions enjoining respondent no. 1 Board not to terminate the contract of supply of transformers inasmuch as it was ultra vires the powers of the Board under Article 1 4 of the Constitution since it has been arbitrarily terminated have preferred this appeal under Clause 15 of the Letters Patent. Before we state the necessary facts on which this challenge has been made it should be recalled that the learned Single Judge could not persuade himself to admit the petition and thought fit to dismiss it in limine since in his opinion once the parties enter into a contract the questions arising in connection therewith would all be in the realm of the law of contract even though one of the contracting parties may be a public authority or a statutory body. The questions of dispute between them could not be examined from the angle of the validity under the Constitution. A few facts need be stated in order to appreciate the challenge to the impugned termination of contract.

(2.) In response to the invitation by the respondent Board for purchase of 1350 transformers. the appellants had submitted their tender on 15/06/1980 By a letter dated 21/11/1980 the appellants were informed that their tenders were accepted and an order for supply of 1350 transformers of the specified description at the rate of Rs. 12 980 per transformer was placed by the respondent Board with the appellants. By a subsequent letter dated December 6 a confirmed order to the above effect was placed by the respondent Board with the appellants for supply of 1350 transformers on terms and conditions set out therein. It is not necessary to go into the details of all those terms and conditions except in connection with the period of delivery of transformers. payments to be made by (sic to) the appellants and the right of the Board to levy penalty for delayed delivery as well as to terminate the contract. Shortly stated these conditions were as under:

(3.) It is common ground that the appellants have supplied 240 transformers before the commencement of the first quarter i.e. 3/03/1981 It appears that the respondent Board had re-scheduled the delivery programme by its letter dated 13/05/1981 The Board indicated that it required the delivery of about 805 transformers upto March 1982 and adjusting 240 transformers already delivered upto 30/04/1981 the balance of 565 transformers were required to be delivered upto March 1982 and that the appellants should deliver the transformed at uniform monthly rate commencing from May 1981 at 10 percent of the balance quantity of the transformers which were required to be supplied upto March 1982 In other words the appellants were required to deliver about 56 transformers every month commencing from May 1981 It is also common ground that the appellants could not supply the stores as per this re-scheduled programme but in all supplied about 18 transformers during the period between 17/05/1981 and 22/10/1981 This omission required the respondent Board to reschedule the delivery programme which it did by its letter dated 22/10/1981 and the appellants were permitted to supply at the rate of 84 transformers per month commencing from October 81 and ending in February 1982 The respondent Board clarified by the said letter that the penalty for delay in supply from April 198 1/09/1981 would not be levied. It is an admitted position that the appellants had supplied in all 420 transformers as required by the respondent Board upto 16/02/1982 It should be noted at this stage that there was some grievance made on behalf of the appellants about the payment of the price of the stores so delivered. However by a letter dated 27/04/1982 the respondent Board intimated to the appellants a fresh delivery schedule for the remaining 672 transformers and asked the appellants to deliver about 80 transformers per month commencing from April 1982 and ending in January 1983 excluding the delivery for the months of July and August 1982 and deliver the remaining 32 transformers in the month of February 1983 It is also common ground that the appellants delivered 80 transformers in May and July 1989 40 transformers in September and October 60 transformers in November 20 transformers in December. 1982 and 80 transformers in January 1983 thus in all aggregated to 400 transformers. It appears that the appellants had by their letter dated 23/02/1983 informed the respondent Board that even though 30 transformers were ready and offered for inspection only 10 were inspected by its Inspecting Officer on 10/03/1983 with the result that 20 transformers were lying with the appellants un-inspected. It also appears that the appellants had by repeated reminders by their letters dated 15/03/1983 March 18 19/03/1983 /03/ 25. 1983 and Ma 30/03/1983 intimated to the respondent Board that the number of transformers as indicated in the said letters were ready for inspection. They also informed the respondent Board that they had also procured raw materials for all the transformers to be supplied to the respondent Board. By their letter dated 18/03/1983 the appellants requested the respondent Board to release the payment deducting the penalty for delayed delivery of the transformers during the period from May 198 2/02/1983 The respondent Board however did not respond favourably. The respondent Board was further informed by a letter dated 7/04/1983 that 108 transformers were ready for inspection by about 15/04/1983 It was requested to depute the Inspecting Officer for that purpose. The Board had not responded at all to those letters; and ultimately by its letter of 15/04/1983 the respondent Board informed the appellants that as the appellants have failed to deliver balance of 272 transformers by about 1/03/1983 the order for supply of transformers was cancelled as per condition No. 20 of the contract. It is this decision of the Board which aggrieved the appellants who have moved this Court for appropriate writs orders or directions as aforesaid.