Patna High Court
M/S New Kohli Sports,versusThe State of Bihar through Director,
- Decided
- Disposal
- DISMISSED
- Bench
- KHATIM REZA
Holding
The Tribunal lacked jurisdiction because the contract for supply of sports goods does not qualify as a ‘works contract’ under Section 2(k) of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008.
Summary
The petitioner, M/s New Kohli Sports, supplied sports goods for the Eklavya Mini Olympics in 2015 based on an oral direction from the State’s Director of Student and Youth Welfare, but was not paid. The petitioner invoked the Bihar Public Works Contracts Disputes Arbitration Tribunal (BPWCDAT) under the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008, seeking payment. The Tribunal dismissed the petition as not maintainable, holding that the supply contract did not constitute a “works contract” within the meaning of Section 2(k) of the Act and therefore it lacked jurisdiction. The petitioner filed a civil revision before the Patna High Court. The High Court affirmed the Tribunal’s view, stating that the contract was merely for supply of goods and not a work, and that the dispute should be pursued in a civil court of appropriate jurisdiction. Consequently, the revision application was dismissed, with the court noting the petitioner may file a suit in a civil court and that the time spent in the futile proceedings could be excluded under Section 14 of the Limitation Act, 1963.
Issues considered
- Whether the contract for supply of sports goods falls within the definition of ‘works contract’ under Section 2(k) of the Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008.
- Whether the BPWCDAT has jurisdiction to entertain the dispute arising from such a contract.
- Whether the petitioner chose the appropriate forum for redress of his claim.
Legislation cited
- Limitation Act, 1963 — s. 14
Subjects
- jurisdiction
- works contract
- arbitration tribunal
- civil revision
- public works contracts
- supply of goods
- tender process
- limitation
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.27 of 2021
======================================================
M/S New Kohli Sports, Jagat Trade Centre, Fraser Road, Patna - 1, Through
its Proprietor Shri Birender Kohli, male, Aged about 49 years.
... ... Petitioner/s
Versus
1. The State of Bihar through Director, Student and Youth Welfare Art and
Culture Department New Secretariat Patna.
2. The Director General Bihar State Sports Authority, Moin-ul-Haque Stadium,
Rajendra Nagar, Patna- 16.
3. The Director cum Secretary Bihar State Sports Authority, Patna.
4. In charge Patliputra sports complex cum District Sports Officer, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ajay Kumar, Advocate
For the Respondent/s : Mr. Sarvesh Kumar Singh, AAG-13
======================================================
CORAM: HONOURABLE MR. JUSTICE KHATIM REZA
ORAL ORDER
15 18-02-2026 This Civil Revision application has been filed
challenging the order dated 10.06.2020 passed by the learned
Bihar Public Works Contracts Disputes Arbitration Tribunal,
Patna (hereinafter referred to as “the Tribunal”) in Reference
Case No. 304 of 2018, whereby the claim of the petitioner was
disposed of as not maintainable.
2. The relevant operative portion of the impugned
order reads as follows::-
“14. In view of our above discussion, we
came to the conclusion that the contract in
question is not works contract and therefore the
services provided by the petitioner can not be
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treated as a contract falling within the meaning of
the term "works contract", therefore this Tribunal
has no jurisdiction to decide the disputes between
the parties because this Tribunal is constituted
under the Bihar Public Works Contracts Disputes
Arbitration Tribunal Act, 2008. This Act has been
enacted by the State legislature to resolve the
dispute arising between the parties out of works
contract and not the dispute arising out of any
other contract. The Bihar Public Works Contracts
Disputes Arbitration Tribunal Act, 2008 applies
only to the works contract and since the contract
which the present parties have entered into is not a
works contract this Tribunal constituted under the
Act of 2008 has no jurisdiction to decide the kind
of disputes which has arisen between the parties in
the present reference case.
15. In view of our above finding we hold
that the Bihar Public Works Contracts Disputes
Arbitration Tribunal Act, 2008 is not applicable in
the present case and accordingly this Tribunal has
got no jurisdiction to decide the dispute raised in
this reference case.”
3. The case of the petitioner in Reference Case No.
304 of 2018, in brief, is that the petitioner supplied sports shoes,
socks, caps, T-shirts, track suits and other allied items, valued at
Rs. 11,25,060/- pursuant to an oral order by Opposite Party No.
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1. It is pleaded that by an order dated 02.11.2015, Opposite
Party No. 1 directed Opposite Party No. 2 to organize the
Eklavya Mini Olympic in the first week of December, 2015. The
said order specifically stipulated that the event would be
conducted from funds reserved with the Bihar Sports Authority
and reimbursement of expenses would be made upon
submission of original bills. It is further contended that Opposite
Party No. 1, the then Director, Student and Youth Welfare, Art
and Culture Department, Bihar, namely Mr. Arvind Thakur,
personally called upon the petitioner and verbally instructed him
to supply the requisite sports goods and outfits to Opposite Party
No. 4, the then In-charge, Patliputra Sports Complex-cum-
District Sports Officer, Patna. Opposite Party No. 1 also stated
that, owing to acute paucity of time, adherence to the Code of
Conduct for inviting tenders was not feasible. In all fairness and
relying on the bona fide assurance and authority of Opposite
Party No. 1, the petitioner supplied a total of 23 bundles of
sports goods and outfits through three challans, namely 17
bundles and 5 bundles vide challan dated 08.12.2015, and 1
bundle vide challan dated 09.12.2015, for the Eklavya Sports
Meet, 2015. The aforesaid materials were duly received by Sri
Binay Kumar, a clerk deputed by Opposite Party No. 1 at the
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Patliputra Sports Authority. The receipt of the said materials
stands admitted through information furnished under the Right
to Information Act by Opposite Party No. 2 and was further
confirmed by Opposite Party No. 3. Subsequently, the petitioner
submitted bills amounting to Rs. 11,25,060/- (Rupees Eleven
Lakhs Twenty-Five Thousand and Sixty only) along with retail
invoices to Opposite Party No. 1 for payment. However, no
response was received, nor was any payment released against
the supplies made. It is further pleaded that on the direction of
Opposite Party No. 1, Opposite Party No. 2 furnished
information to the petitioner confirming that all sports goods,
materials and outfits required for the Eklavya Sports Meet,
2015-16, meant for 488 participants, had been supplied by the
petitioner, M/s New Kohli Sports, Fraser Road, Patna, through
three challans, and that the same had been duly received by the
Patliputra Sports Authority. Even a reminder letter dated
07.02.2018, along with the retail bills and RTI information, did
not yield any action. Left with no alternative, the petitioner,
through his counsel, issued a legal notice dated 26.06.2018 to
Opposite Party No. 1, which did not invite any response. In
view of the persistent inaction and apathetic conduct of the
opposite parties, the petitioner was constrained to invoke the
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jurisdiction of the Bihar Public Works Contracts Disputes
Arbitration Tribunal, Patna, by filing Reference Case No. 304 of
2018 for redressal of his legitimate grievance and payment of
the dues arising out of the supplies made.
4. The learned Tribunal, upon hearing the parties,
disposed of the reference case as not maintainable and recorded
a categorical finding that it did not have jurisdiction to
adjudicate the dispute between the parties. The Tribunal further
held that the contract entered into between the parties did not
fall within the ambit of “works contract”. It was further held that
since the Tribunal is constituted under the Bihar Public Works
Contracts Disputes Arbitration Tribunal Act, 2008 (for short,
“the Act of 2008”), its jurisdiction is confined to disputes
arising out of works contracts alone and does not extend to
disputes arising from contracts of any other nature, including the
contract involved in the present reference case.
5. Assailing the judgment and order passed by the
learned Tribunal, the petitioner has invoked the revisional
jurisdiction of this Court under Section 13 of the Act of 2008.
6. Learned counsel for the petitioner submitted that
the learned Tribunal disposed of the reference case merely on
the ground of maintainability, confining its decision to the issue
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of jurisdiction, and did not adjudicate the matter on merits. It is
contended that it is an admitted position on record that the
sports goods were supplied pursuant to the oral directions of
Opposite Party No. 1, and that the said goods were duly
received by the staff of Opposite Party No. 1 at the Paliputra
Sports Authority. It is further submitted that the opposite parties
themselves have considered the petitioner’s claim relating to the
supply of sports goods and examined the challans and bills
submitted by the petitioner. The Department of Sports,
Government of Bihar, in fact, constituted a three-member
committee to scrutinize and verify the copies of the bills
furnished by the petitioner. It is an admitted position that the
Eklavya Sports Meet, 2015, was successfully organized, during
which the sports goods supplied by the petitioner were utilized.
From the stand taken by the State authorities, it is apparent that
no other supplier had supplied sports goods for the said Eklavya
Sports Meet, 2015. It is further submitted that the opposite
parties have categorically admitted that the sports goods were
supplied by the petitioner, which is evident from the information
furnished under the Right to Information Act, and which
admission has never been denied by the State authorities. It is
contended that the three-member committee, constituted by the
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Department, after verification of the bills, recorded that on the
basis of the photocopies of the vouchers furnished by the
petitioner, the total amount came to Rs. 11,24,060/- (Rupees
Eleven Lakhs Twenty-Four Thousand and Sixty only), whereas
the demand letter submitted by the petitioner for payment of the
supplied materials claimed a total amount of Rs. 11,25,060/-
(Rupees Eleven Lakhs Twenty-Five Thousand and Sixty only).It
is further recorded that in view of Rule 131 of the Bihar
Financial Rules along with the relevant sub-provisions thereof
(as amended), a tender process was required to be followed for
procurement of materials of the said amount. The Three-
Members Committee, vide Enquiry Report dated 07.03.2024
(annexed as Annexure-OP-1/6 to the second supplementary
counter affidavit filed on behalf of O.P. No. 1), has further
reported that no evidence of such procedure is available in the
case records.
7. Learned counsel for the petitioner submitted that as
the event was organized at the eleventh hour, Opposite Party
No. 1, the Director, requested the petitioner to supply the
requisite sports goods. The petitioner supplied the said goods on
the legitimate expectation that after supply and subsequent
verification, payment of the bills would be duly made. It is
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further submitted that the details of the supplied items were
verified by the Three-Members Committee with reference to the
bills submitted by the petitioner. As the event was organized at
the eleventh hour and owing to acute paucity of time, neither a
formal work order nor a tender process could be issued prior to
procurement of the sports goods.
8. It is an admitted fact that the event was organized
and successfully conducted after the sports goods mentioned
above were supplied by the petitioner. The concerned authorities
have denied payment of the petitioner’s legitimate and bona fide
bills merely on the ground that the goods were supplied without
following the tender process. As per the report of the Three-
Members Committee, there is no denial whatsoever that the
sports goods were not supplied by the petitioner for conducting
the Eklavya Sports Meet, 2015. It is also not the case of the
State authorities that the bills were submitted without actual
supply of the goods. It is further an admitted fact that the sports
goods were received by the staff of Opposite Party No. 1 at the
Patliputra Sports Authority, which fact stands clearly established
from the information furnished under the Right to Information
Act. In view of these admitted facts, the petitioner is entitled to
payment for the sports goods supplied, amounting to Rs.
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11,24,060/-, as assessed and calculated by the Three-Members
Committee.
9. On the other hand, learned counsel for the State
has submitted that the present revision application has been filed
against the order of the learned Tribunal and the impugned order
does not suffer from any illegality and wants of jurisdiction.
There was no contract executed between the petitioner and the
opposite party no.1.The Director, Student and Youth Welfare,
Bihar, vide his Letter no. 920 dated 02.11.2015 had informed
the Director-cum-Secretary, Bihar State Sports Authority, Patna,
to organize Ekalavya Mini Olympics, 2015-16, in the first week
of December, 2015 with the reserved fund of Bihar State Sports
Authority and with a further clarification that the budget amount
shall be reimbursed after submission of original voucher/bills.
The Opposite Party No. 1, in compliance of the letter dated
07.02.2018, vide Letter No. 276 dated 28.02.2018 has already
communicated to the petitioner that on perusal of the concerned
file, it is manifest that no order had been issued for the supply of
the sports items, in-question, by the petitioner during the
Ekalavya Mini Olympics, 2015-16. By the aforesaid letter, the
petitioner was requested to make available a copy of the work
order to the Department. However, till date, the petitioner has
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not made available any work order issued by the Department in
this regard. Learned counsel for the State further submitted that
the Director-cum-Secretary, Bihar State Sports Authority, Patna,
has also informed the petitioner that the Authority had not
purchased the sports items in question, as is evident from Letter
No. 668 dated 31.07.2017 issued by the Director-cum-Secretary,
Bihar State Sports Authority, Patna.
10. Moreover, the claim of the petitioner will not
come under Section 2(K) of the Act of 2008 and the Section
2(K) of the Act of 2008 will not apply in this case. Further no
notification has been issued by the State Government including
the supply of sports items within the meaning of “works
contract”. The contract, in question, is not works contract and,
therefore, the goods supplied by the petitioner cannot be
treated as a contract falling within the meaning of the term
"Works Contract" and learned Tribunal has rightly refused to
entertain the merit of the claim of the petitioner and disposed of
the matter as not maintainable.
11. Having considered the submissions advanced by
the parties and from a bare perusal of the impugned order
passed by the learned Tribunal, it would emerge that the contract
as claimed by the petitioner was created through an oral order
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and related merely to the supply of sports items. Such supply
neither falls within the ambit of any “work” as defined under
Section 2(k) of the Act of 2008 nor does it relate to the supply
of goods incidental to such work so as to constitute a ‘works
contract’.” In view of the above, the learned Tribunal has rightly
held that the oral contract in question does not fall within the
definition of “works contract” within the meaning of the Act of
2008. Consequently, the Tribunal constituted under the said Act
has no jurisdiction to adjudicate the dispute arising between the
parties in the reference case. Such a claim of the petitioner
cannot be entertained before the forum invoked by the
petitioner. The claim and dispute raised by the petitioner ought
to have been raised before the Civil Court of competent
jurisdiction.
12. The petitioner did not choose the proper forum to
ventilate his grievance. Under wrong advice, the petitioner filed
such a claim before the learned Tribunal, which had no
jurisdiction to adjudicate the claim of the petitioner.
13. Accordingly, this Court is of the view that the
present revision application has got no merit.
14. The petitioner is at liberty to avail an efficacious
remedy by filing an appropriate suit before the Civil Court of
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competent jurisdiction in accordance with law, and the time
consumed in the present proceeding, having been initiated under
wrong advice, may be treated as falling under Section 14 of the
Limitation Act, 1963, for computing the period of limitation for
exclusion of the time spent in prosecuting the proceedings bona
fide before a court having no jurisdiction.
15. Accordingly, the present Civil Revision
application is disposed of with the aforesaid observations.
16. Pending interlocutory application(s), if any, shall
stand disposed of.
(Khatim Reza, J)
shyambihari/-
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