For the purpose of reimbursing the Seignorage charge and Labor Cess on building and maintenance work, the appropriate forum should be contacted
Fact and issue of the case
Petitioner has prayed for the following relief(s):
For a direction to the respondents to add GST, Seigniorage Charge and Labour Cess in the estimate and agreement in connection with the work of “Construction & Five Year Maintenance of Akauna Path to Yogapur Path in Punpun Block Under NABARD” Vide Agreement No. 12/SBD/2019-20 as GST, Seigniorage Charge and Labour Cess were not included in the original estimate and Bill of Quantity.
For a further direction to the respondents to refund/reimburse the deducted amount as Seignorage Charge and Labour Cess from R/A Bills of the Petitioner and GST for which the petitioner is liable to pay in connection with the aforesaid work. (iii) For appropriate declaration that :-
a). The respondents are obliged under law to include Gst, Seigniorage Charge and Labour Cess in the estimate, bill of quantity and agreement.
b). The Respondents are obliged to refund/reimburse the amount already deducted as Seignorage Charge, Labour Cess from R/A Bills of the Petitioner and GST payable by the petitioner as per provisions of the Agreement and Law as the same was not included in the estimate, bill of quantity and agreement.
c). Non-adding and Non-refund/reimburse the deducted amount as GST, Seignorage Charge and Labour Cess from R/A Bills of the Petitioner amount to unjust enrichment.
d). The action of the Respondents of non-refund/reimburse the GST, Seignorage Charge and Labour Cess from R/A Bills of the Petitioner is not only a breach of Contract but also violative of Fundamental Rights of the Petitioner guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India.
(iv) For any other relief(s) or consequential relief(s) to which the petitioner may be found entitled to in the facts and circumstances of this case.”
After the matter was heard for some time, finding the Bench not to be agreeable with the submissions made by learned counsel for the petitioner, learned counsel for the petitioner, under instructions, states that petitioner shall be content if a direction is issued to the authority concerned to consider and decide the representation which the petitioner shall be filing within a period of four weeks from today for redressal of the grievance(s).
Observation of the court
A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25)
“24….The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury’s Laws of England (3rd Edn.), Vol. 11, p. 106:
‘198. Demand for performance must precede application.—As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.
In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution.”
As such, petition stands disposed of on the following terms:-
(a) Petitioner shall approach the authority concerned i.e. Respondent No.3, namely The Chief Engineer-I, Rural Works Department, Bihar, Patna within a period of four weeks from today by filing a representation for redressal of the grievance(s);
(b) The authority concerned shall consider and dispose it of expeditiously by a reasoned and speaking order preferably within a period of four months from the date of its filing along with a copy of this order;
(c) The order assigning reasons shall be communicated to the petitioner;
(d) Needless to add, while considering such representation, principles of natural justice shall be followed and due opportunity of hearing afforded to the parties;
(e) Also, opportunity to place on record all relevant materials/documents shall be granted to the parties;
(f) Equally, liberty is reserved to the petitioner to take recourse to such alternative remedies as are otherwise available in accordance with law;
(g) We are hopeful that as and when petitioner takes recourse to such remedies, as are otherwise available in law, before the appropriate forum, the same shall be dealt with, in accordance with law and with reasonable dispatch;
(h) Liberty reserved to the petitioner to approach the appropriate forum/Court, should the need so arise subsequently on the same and subsequent cause of action;
(i) We have not expressed any opinion on merits. All issues are left open;
(j) The proceedings shall be conducted through digital mode, unless the parties otherwise mutually agree to meet in person i.e. physical mode;
The petition stands disposed of in the aforesaid terms.
Interlocutory Application(s), if any, shall stand disposed of.
In the result, appeal of the assessee is allowed and ruled in favour of the assessee
Read the full order from hereDhaneshwar
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