Chahal Distributors vs State of Jammu & Kashmir

By way of this writ petition the petitioner is seeking for a writ of Certiorari quashing Order No. JDP/LPP/S13/102931 Dated 6th August 1987

whereby respondent No.3 has placed the supply order to respondent No.6, as also order No. ASH/Plan88/Misc. Dated 12th September, 1997

and;

Further a writ of Certiorari seeking quashmentofOrderNo.JDP/LPP/S30/148991 dated 23rd September, 1997 and; a writ of mandamus

commanding upon the respondents to accept the poultry feed supply from the petitioner only as per agreement executed between the petitioner

and respondents 4 and 5; further a writ of mandamus commanding upon the respondents to make the payment to the petitioner of amount for

which the poultry supply has been made to the respondents; and any other relief.

The facts in brief which have given rise to the present petition are that the petitioner in pursuance to the notification inviting tenders for supply of

poultry feed for the financial year 199798, as per Annexure ""B"", submitted his tender thereby quoting his rates, and a communication was made to

him vide letter dated 25th April, 1997, forming Annexure ""C"" to the petition. That in pursuance of the acceptance of tender, the petitioner tendered

into an agreement for the supply of the poultry feed and after executing the contract he started making supply as per communication sent to him by

respondent No.5. But, despite making of the supply, the payment was not made to the petitioner because respondents No.3 and 4 wanted to give

contract to somebody else. It is further averred that the petitioner continued in making the supply to the respondents under the promise that

payment will be made to him shortly, as respondents used to write to the petitioner of making of the payment. It is further averred that in the month

of July, 97 when there was good crop of wheat, that the petitioner slashed his rate from Rs. 725/ to Rs. 698/, though he was not supposed to do

so as per the agreement. This shows that the petitioner was bonafide in making the supply at a minimum price and slashed his rates because of the

change in the market of the price of maize in the month of July, 97. It is further averred that when the petitioner started making quick supply, at one

time respondent No.7 wrote respondent No. 5 and respondent No. 5 in turn directed the petitioner to go slow with regard to the supply. This

shows the bonafide of the petitioner that he was accordingly making the supply, but it was at the behest of the respondents themselves that the

petitioner was asked to go slow. It is further projected by the petitioner that though he had made 50% of the poultry for the current quarter, but no

payment was made to the petitioner and payment to the tune of Rs. 21.65 lacs was still pending which is a huge amount. It is also averred by the

petitioner that the supply of poultry feed was being made by him in response to the tender and the agreement which was executed by him with the

Managing Director, J&K State Agro Industries Development Corporation, at whose behest the poultry feed was being supplied to the Director

Animal Husbandry and to Joint Director Poultry/LPP Belicharana.

In response to the notices the respondents appeared and respondents 1,2,3 and 7 filed their joint objections, whereas respondent No.6 filed

separate objections. The common objections taken by the answering respondents is that the petition is hit by doctrine of resjudicata, as on the

same cause of action an earlier petition was filed by the petitioner which has been withdrawn as dismissed, and without seeking any permission to

file a fresh one, th6 present petiton is liable to be dismissed with costs.

I have called for the record in this matter for perusal from the registry and it transpires that the petitioner earlier on 23rd of September, 97 had

filed a writ petition which came to be registered as Writ Petition No. 776/97 titled ""M/s Chahal Distributors Vs. State of J&K & Others"".

In both the petitions I find that the parties are identical with variation that the placement of respondents varies in their serial number and rest in

both the petitions parties are same and the reliefs claimed are identical so much so that in both the petitions the claim for writ of Certiorari seking

quashment of Order No. JDP/LPP/S13/102931 dated 6th of August, 1997 has been sought and also a writ of mandamus commanding upon the

respondents to make the payment to the petitioner of the amount for which the poultry supply has been made, and any other writ. But, in the

present writ petition which is writ petition No. 800/97, the quashment of Order No.: ASH/ Plan88/Misc. dated 12091997 and Order NO.

JDP/LPP/S30/148994 dated 23091997 are being sought, besides the quashment of the initially referred order.

It may be noted that Order NO. ASH/ Plan88/Misc. dated 12091997 was very much in existence when petition No. 776 of 1997 was filed

before this court on 23rd of September, 97, and even both the orders, the quashment of which is being sought by way of present petition, were

very much in existence on the date when earlier writ petition No. 776/97 was filed on 23rd of September, 97 as is evident from the prayers made

in the petition for the quashment of the said orders. No permission was sought by the petitioner at the relevant time seeking leave of the court or

had craved the leave of the court in the petition itself under the provisions of Order2 Rule 2CPC saying that he was deferring the quashment of

Order dated 12th September, 97 and 23rd September, 97 which have not been incorporated in the present writ petition registered as No. 800/97

on 29th September, 97. The order dated 26.09.1997 passed by his Lordship Mr. Justice Bilal Nazki in writ petition (Other) No. 776/97 reads as:

Mr. Sethi seeks to withdraw this petition which is dismissed as withdrawn.

Therefore, without seeking the leave of the court while withdrawing from the previous petition to file a fresh one, the present writ petition is not

maintainable, and without taking recourse to Order 2 Rule 2 CPC for omission of his prayers or inclusion of his reliefs regarding the relinquishment

of his said claims, he is debarred not to seek relief in respect of that portion of the relief in the present writ petition.

However, it may be noted that in case the petitioner is legally advised, he may seek redressal of his grievances by way of a regular suit for claim

of the amount which is due from the respondents as a price/cost of the poultry supply of poultry feed for the current financial year by ending

March, 98, his claim for damages subsists, and besides his damages, his claim for enforcement/specific performance of contract for supply of

poultry feed for the subsisting period of contract also subsists, and the regular remedy by way of suit therefore is not barred but only writ remedy

has been denied as barred.

Hence, on this score the petition moved by the petitioner before this court and registered as Writ Petition before this court and registered as

writ petition No. 800/97 is not maintainable and is being dismissed on that count alone.

The interim direction, if any, also stands vacated. Let both the files be clubbed together and consigned to record.