Michael Zothankhuma, J. - Heard Mr. B. Chakraborty, learned counsel for the petitioner. Also heard Mr. P.K. Roy, learned Standing Counsel for all the respondents.

2. The petitioner is aggrieved by the respondents deducting an amount of Rs.21,66,907/- from the petitioner bills from other contracts, on the ground that the petitioner was liable to pay to the respondent the amount of Rs.21,66,907/-, for the price of downward revision of price of diesel, in respect of an earlier concluded contract.

3. The petitioners case in brief is that he was appointed as a Transport Contractor on 22.07.2014 for "Ex-Rly siding Jagiroad to FCI FSD Sangaiprou (Manipur)" in pursuance to an "Adhoc contract through limited tender enquiry" dated 16.05.2014 issued by the FCI, Regional Office, Guwahati. Upon satisfactory completion of the contract, the FCI authorities asked the Petitioner/ Transporter to furnish a No Demand Certificate under Chapter 29 of the General Clauses of Contract. The petitioner issued the No Demand Certificate and submitted the same to the FCI. The FCI thereafter released the security deposit of Rs.1,67,88,992/- on 01.08.2015 and the bank guarantee of Rs.7.5 lakh on 23.07.2015 to the petitioner.

4. However, the respondents subsequently invoked Clauses XVIII(a) of the Model Tender Form (MTF), pertaining to fluctuation of diesel price and issued a notice on 30.09.2015 upon the petitioner, directing him to deposit the downward revision of diesel price during the relevant period, amounting to Rs.21,66,907/- within three days, failing which the amount was liable to be recovered/ adjusted from any of the petitioners assets/ SD money/ bills lying with the FCI establishment.

5. Mr. B. Chakraborty, learned counsel for the petitioner submits that as the No Demand Certificate had been furnished by the petitioner, on the asking of the same by the FCI, and all payments had been made in consequence of the same, the contract stood concluded between the parties. Accordingly, no subsequent demand/ claim could have been raised, either by the petitioner contractor or the FCI, in respect of the concluded contract. Also, the FCI could not have deducted any amount from the petitioners bills from other existing contracts, for a claim made against any concluded contract.

6. Mr. P.K. Roy, learned Standing Counsel, FCI, on the other hand, submits that Chapter 29 of the Storage and Contract Manual referred to by the petitioner, with regard to the "No Demand Certificate" does not form a part of the contract agreement executed between the parties. He also submits that as per Clause XIV of the Model Tender Form of the FCI, any sum due from the contractor in respect of a concluded contract, can be claimed and set off from any other existing contract between the petitioner and the FCI. He further submits that as per the Clause XX of the Model Tender Form, the petitioner would have to first approach the Dispute/ Grievance Redressal Committee constituted and functioning at the Zonal Office of the FCI, in case of any dispute arising out of and touching upon the contract. He accordingly submits that as there is an alternative remedy available, the writ petition should be dismissed and the petitioner should avail the alternative remedy available.

7. I have heard learned counsels for the parties. Clauses 29, 29.1, 29.2.1 of the Storage and Contract Manual is a part of the General Clauses of Contract and it states as follows-

"29. REFUND OF SECURITY DEPOSIT

29.1 A security deposit taken from contractor will be refunded to him on satisfactory completion of the contract in all respects on presentation of an absolute "No Demand" Certificate in the prescribed from (Appendix 29.1) and on return in good condition of any property belonging to the Corporation which have been issued to him. In addition to the usual "No Demand" certificate signed by the Contractor, the following certificates will also be furnished by Regional Manager/ District Manager as the case may be:

a) "That there was no breach by the contractor of any of the terms and conditions of the contract and no damage, loss and expenses were suffered by the Corporation due to contractors negligence or workman like performance".

b) "The Contractor has not been held responsible for any loss, wastage or damage to grains during loading/unloading, transport storage, etc. and no recovery is due from him on that account.

c) "No demurrage was incurred due to delay or negligence on the part of the contractor in loading/unloading, and removal of Corporation goods within the free time allowed.

d) "The contractor has not been held responsible for any loss or damage to articles of dead stock including gunnies and any other corporation property."

e) "All claims of the contractors have since seen settled and none is pending.

29.2 It is the duty of the contractor to apply for refund of security deposit on completion of the contract, along with No Demand Certificate. However, in absence of such application from the contractor within a reasonable time, the officer dealing with the contract may, offer in writing an by registered post, the refund of the security deposit of the contractor and call upon him to submit "No Demand Certificate" in terms of the contract.

29.2.1. The following points are relevant relating to submission of "No Demand Certificate" by the contractors for releasing the security deposit.

a) If the Corporation has no claims against the contractor, No Demand Certificate from the contractor should be obtained before releasing the security deposit.

b) if the Corporation has claims against the contractor which are required to be adjusted against the security deposit of the Contractor by following the usual procedure if issuing show cause notice etc. there is no question of asking the Contractor for No Demand Certificate.

c) If, after adjusting Corporations claims against the contractor from his security deposit still some amount of security deposit is payable by FCI to the contractor, then the contractor should be asked to submit No Demand Certificate.

d) If adjusting Corporations claims against the security deposit still some more amount is due from the Contractor then the question of obtaining No Demand Certificate from him does not arise. A demand for balance form the Contractor should be made and on his failure to pay, the Corporation should initiate legal action.

e) If there is some litigation pending between the Corporation and the Contractor, nothing prevents the corporation from adjusting its dues against the security deposit by following usual procedure of issuing show cause notice etc. unless the contractor obtains a stay/injunction against the Corporation.

(B) of the Storage and Contract Manual is a part of the General Clauses of Contract and it "

8. On perusal of the aforesaid Clauses, the same indicates that if the FCI does not have any claim against the contractor, a No Demand Certificate is issued by the contractor on the asking of the same by the FCI.

9. In the present case, after the No Demand Certificate had been given by the petitioner contractor to the FCI, the FCI has acted upon the same and given the security deposit of Rs.1,67,88,992/- on 01.08.2015 and the bank guarantee of Rs.7.5 lakh on 23.07.2015 to the petitioner contractor. Thus, after a No Demand Certificate is given by the contractor and the same is accepted, the Corporation cannot have any subsequent claim in respect of the concluded contract as per Clause 29.2.1(a).

The above clearly indicates that the contract between the parties has been concluded and also implies that the parties have waived all remaining rights and liabilities that they might subsequently have against each other.

10. Clauses XIV AND XX of the FCI Model Tender Form states as follows-

"XIV. Set Off: Any sum of money due and payable to the contractor (including Security Deposit refundable to the contractor) under this contract may be appropriated by the Corporation and set-off against any claim of the Corporation for the payment of any sum of money arising out of, or under this contract or any other contract made by the contractor with the Corporation.

XX. Laws governing the contract and Dispute Resolution :

(a) The contract will be governed by the laws of India for the time being in force.

(b) In case of any dispute arising out of and touching upon the contract, the same will be first referred to the Dispute/Grievance Redressal Committee constituted and functioning at the Zonal Office of the Corporation, with a view to settle the disputes. If any disputes remain thereafter, the same will be settled in the Court of Law having competent jurisdiction."

11. Clause XIV speaks of the power of the FCI to appropriate any sum of money due and payable to the contractor with regard to "this contract" or set-off any claim of the FCI for payment of any sum of money arising out of "this contract" or any other contract. The above Clause is not relatable to any concluded contract where a "No Demand Certificate" has been accepted by the Corporation, but is relatable only to existing contracts.

12. Clause XX of the Model Tender Form, FCI provides that in case of any dispute arising out of and touching upon the contract, the same will be first referred to the Dispute/Greivance Redressal Committee constituted and functioning at the Zonal Office of the FCI, with a view to settle the disputes. If any disputes remain thereafter, the same will be settled in the Court of Law having competent jurisdiction.

It is settled law that in appropriate cases, inspite of the availability of alternative remedy available, the High Court may still exercise its writ jurisdiction, especially when there has been no notice issued. This has also been held by the Apex Court in the case of Harbanslal Sahnia and Anr. Vs Indian Oil Corpn. Ltd. and Ors, (2003) 2 SCC 107. It should also be kept in mind that Clause XX does not appear to be related to concluded contracts, but only to existing contracts. Further, the FCI has brought out a claim only after Clause 29.2.1(a) has been played out, which is not permissible.

13. In the present case, a reading of the notice dated 30.09.2015 issued to the petitioner by the FCI shows that it is not a notice, but an order. The notice dated 30.09.2015 states as follows:

"Sub: Notice for deposition of FCI due to downward revision of diesel prices for the route RH Jagiroad to FSD Sangaiprou.

Ref: ZO (NE) order Cont. (406)/NEZ/2010/11911 DTD.16/12/2014

Please refer to MTF clause No. XVIII(a)-(ii) regarding revision of contracted rates due to downward revision of diesel prices.

Invoking the above clause the total dues for the period Jan/2015 to April/2015 in respect of the route RH Jagiroad to FSD Sangaiprou comes out to be Rs. 21,66,907.00/- (Rupees Twenty one lacs sixty six thousand nine hundred seven) only. (Details have been enumerated in the calculation sheet enclosed). You are directed to deposit the said amount within 3 days, failing which the amount is liable to be recovered/adjusted from any of your dues/assets/SD money/ bill lying at the disposal of this office/any other FCI establishment."

14. Perusal of the above notice dated 30.09.2015 clearly shows that it is a direction given to the petitioner to deposit money and there is no scope given to the petitioner to make any representation against the decision to deposit money claimed, in respect of the concluded contract.

15. Though the Apex Court in the case of State of U.P. and others Vs. Bridge and Roof Co. (India) Ltd, (1996) AIR SC 3515, has held that a writ petition filed for issuance of a writ of Mandamus, restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was not maintainable and the same should have been decided by a Civil Court or by an arbitrator, if there was a clause for arbitration in the contract agreement, the Apex Court in the case of ABL International Ltd. Vs. Export Credit Guarantee Corporation of India Ltd., (2004) 3 SCC 553, has held that once the State or an instrumentality of the State is a party to the contract, it has an obligation in law to act fairly, justly and reasonably, which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of one party, the instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then a writ court can issue suitable directions to set right the arbitrary actions of the first respondent. It further held that in an appropriate case, a writ petition as against a State or an instrumentality of a State, arising out of a contractual obligation, was maintainable.

16. In the present case, the claim is not with regard to an existing contract, but a concluded contract, wherein the Corporation having no claims against the petitioner had accordingly asked for a No Demand Certificate from the petitioner. The same was given by the petitioner to the FCI and in terms of the No Demand Certificate, the petitioners security deposit and bank guarantee had been returned. However, on a subsequent date, the FCI has deducted an amount of Rs.21,66,907/- from two different contract works of the petitioner, i.e., i) Rs.11,66,907/- from the Transportation work from Hojai to Badarpur and ii) Rs.10,000,00/- from the Transportation work from Hojai to Haflong, for the downward revision of diesel prices relating to the concluded contract work, i.e., Ex-Rly siding Jagiroad to FCI FSD Sangaiprou (Manipur).

17. Clause 29.2.1. (a) states that if the Corporation has no claims against the contractor, No Demand Certificate from the contractor should be obtained before releasing the security deposit. In the present case it is not denied by the FCI that they had asked for a No Demand Certificate from the petitioner. The petitioner accordingly, gave the No Demand Certificate and the FCI released the security deposit and bank guarantee to the petitioner. Thus as per Clause 29.2.1, the Corporation could not have any claims against the petitioner in respect of the concluded contract of "Ex-Rly siding Jagiroad to FCI FSD Sangaiprou (Manipur)".

18. Besides the above, the petitioner in his affidavit-in-reply, has submitted that the FCI, in their affidavit-in-opposition filed in connection with the WP(C) No.341/2016 in the High Court of Meghalaya at Shillong, had taken the specific plea that the contractor having issued the No Demand Certificate in respect of the contract, the contractor was not entitled for any further claim in respect of increase of fuel price, though there was no denial about the increase in the fuel price. The FCI had made the above averments not only with regard to the WP(C) No. 341/2016, but also in relation to WP(C) Nos. 342/2016, 343/2016 and 344/2016 before the High Court of Meghalaya at Shillong. The same is not denied by the Counsel for the FCI, except to state that Meghalaya is in a different region.

19. On perusal of the affidavit-in-opposition filed by the Assistant General Manager (Contract), FCI, Regional Office, NEF Region Shillong in WP(C) No. 341/2016, it is seen in Paragraph Nos. 7, 9 and 10 that the FCI has taken the stand that, after submission of the No Demand Certificate and refund of security deposit, the contractor has waived all claims and rights with respect to the contract in question. Accordingly, any future claim made by the contractor is barred by the principles of waiver and estoppel. The FCI have also stated therein that the No Demand Certificate having been submitted by the contractor and accepted by the FCI, the contractor could not make any further claim in respect of the contract. Using the same analogy in the present case, the FCI must be said to have waived all their claim(s)/ right(s) in respect of the concluded contract and any claim made by them after a No Demand Certificate is accepted by them, is also barred by the principles of waiver and estoppel. This would be in consonance with the idiom "whats sauce for the goose is sauce for the gander".

20. In view of the reasons stated above, this Court finds that the FCI cannot make any claim in respect of a concluded contract after the No Demand Certificate issued by the contractor was accepted by the Corporation, by release of the security deposit and bank guarantee. Further, in the present case, there is no disputed question of fact or law. It only relates to the equal application of Clause 29 of the Storage and Contract Manual, which is a part of the General Clauses of Contract.

21. This Court accordingly finds that the action of the respondents in issuing the impugned notice dated 30.09.2019 and the deduction of Rs.21,66,907/- from the bills of the petitioners other contracts is illegal and arbitrary. The same are accordingly, set aside and quashed. The respondents are directed to refund the deducted amount of Rs.21,66,907/- to the petitioner with interest @ 6% per annum from the date of deduction of said amount till final payment. The same should be done within one month from the date of receipt of a certified copy of this order.

22. This writ petition is accordingly, allowed.