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2023 Supreme(Cal) 604
IN THE HIGH COURT AT CALCUTTA
SUBRATA TALUKDAR, HIRANMAY BHATTACHARYYA, JJ.
The Kolkata Municipal Corporation & Ors. - Appellants
Versus
M/s. Jaganath Enterprise & Ors. - Respondents
RVWO No. 25 of 2022 Arising Out of APO No. 163 of 2019, RVWO No. 26 of 2022 Arising Out of APO No. 164 of 2019 With WPO No. 338 of 2018, IA No. GA 1 of 2022, GA 2 of 2022
Decided On : 23-03-2023
For the Appellants : Mr. Kishore Dutta, Sr. Adv., Mr. Gopal Ch. Das, Mr. Subhrangsu Panda, Ms. Ina Bhattcharyya, Ms. Mithu Sigha Mahapatra.
For the Respondents: Mr. Anant Kr. Shaw, Mr. Mainak Ganguly.
Headnote:
Constitution of India, 1950 – Article 226 – Challenged – Contractually procured – Common Order – Held, Therefore, to mind of this Court nature of concession recorded by Hon’ble Single Bench is such that no other or different understanding thereof can be assumed, presumed and/or derived de hors primary reasoning that KMC is bound by its contractual obligations – It is impossible to argue that concession was recorded out of blue by Hon’ble Single Bench on its own – Implicitly in recording of concession lies acknowledgement by Learned Counsel of primary reasoning (supra) that is part and parcel of order of Hon’ble Single Bench – Before parting with this discussion, Court cannot help but notice that KMC has dragged litigation from Court to Court resulting in a situation whereby KMC has utilised medicines supplied by vendors/ appellants and denied them their dues for now nearly four years – Dismissed.
JUDGMENT :
Subrata Talukdar, J.
1. By way of filing the present review applications, being RVWO 25 of 2022 and RVWO 26 of 2022, the review applicants seek review of the common Judgement and Order dated 11th of March, 2021 passed by the Hon’ble Division Bench in the set of analogous appeals being APO 163 of 2019 and APO 164 of 2019.
2. By the said Judgement and Order dated 11th of March, 2021, the Hon’ble Division Bench, inter alia, affirmed the common Order dated 27th of September, 2019 passed in two writ petitions being WP No. 337 of 2018 and WP No. 338 of 2018 by the Hon’ble Single Bench. The Hon’ble Single Bench had, inter aila, allowed the two writ petitions by directing the respondents therein, the Kolkata Municipal Corporation (for short the KMC), to pay the writ petitioners namely, Ms. Jagannath Enterprise and Ms. Impulse Health Care, the rates at which medicines were contractually procured from the writ petitioners.
3. The Hon’ble Single Bench had also recorded a concession made by Learned Senior Counsel appearing for the KMC to extend the time to make payment of the rates as directed at Paragraph 14 of the final Judgement and Order dated 27th of September, 2019 (supra) by a period of four weeks after the reopening of the Court after the long Puja Vacation.
4. In the appeals, being APO 163 of 2019 and APO 164 of 2019, filed by the KMC challenging the common Judgement and Order dated 27th of September, 2019, the appellants/KMC, inter alia, pleaded the following grounds.
“IV. For that the Hon’ble Judge failed to consider the provision of Sections 45 and 46 of the Kolkata Municipal Corporation Act, 1980 and consequently the scope and effect thereof and as such the Hon’ble Court arrived at erroneous observations/findings that there was contract between the writ petitioner company and the Kolkata Municipal Corporation.
V. For that the Hon’ble Judge should have considered that the contract, if any, which is not entered into in accordance with the provision of the Act or any regulation made thereunder shall not be binding upon the corporation.
VI. For that the Hon’ble Judge should have considered that since the medicines as supplied by the writ petitioners on such purported purchase orders appeared to have been utilized, the Kolkata Municipal Corporation decided to pay the price of the medicines at the approved rate of the government.
X. For that the Hon’ble Judge should have appreciate that when there was no contract under the law and the contract if any, did not bind the Kolkata Municipal Corporation under the law, there is no reason to offer the price of medicines as mentioned in the purported purchase orders.”
5. Interestingly, while the Grounds of Appeal in both APO 163 of 2019 and APO 164 of 2019 relate only to the point pertaining to the sanctity of the contract for supply of medicines qua the vendors the writ petitioners and the KMC, no ground of appeal has been pleaded in APO 163 of 2019 and APO 164 of 2019 connected to the concession recorded by the Hon’ble Single Bench of the Learned Counsel appearing for the KMC to pay within the extended period of four weeks (supra).
6. Upon the final Judgement and Order of the Hon’ble Single Bench dated 27th of September, 2019 being considered in the two analogous appeals, i.e. APO 163 of 2019 and APO 164 of 2019, this Hon’ble Division Bench was pleased to decide the said two appeals, inter alia, by a common order dated the 11th of March, 2021. This Hon’ble Division Bench was pleased to, inter alia, find that contrary to the case made out by the appellant KMC that the Purchase Order for supply of medicines was the handiwork of only one officer namely, the Superintendent of the Central Medical Stores, KMC, it would transpire from the record that the said Purchase Order was signed by three officers of the KMC including, the Superintendent of Medical Stores.
7. This Hon’ble Division Bench upheld the findings of the Hon’ble Single Bench affirming the view that after supplies of medicines were e
