Allahabad High Court
M/S Raj Electric Works , Lko. Thru. ... vs Union Of India Thru. Secy. ... on 12 December, 2022
Bench: Devendra Kumar Upadhyaya, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 2
Case :- WRIT - C No. - 8872 of 2022
Petitioner :- M/S Raj Electric Works , Lko. Thru. Its Sole Proprietor Mr. Rajendra Bahudur Singh
Respondent :- Union Of India Thru. Secy. Ministry Of Commun. Elec. And Inform. Techn. New Delhi And Others
Counsel for Petitioner :- Amrendra Nath Tripathi,Bipin Kumar Singh
Counsel for Respondent :- A.S.G.I.,C.S.C., Pratul Kumar Srivastava
Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Saurabh Srivastava,J.
(1) Objection to the writ petition filed by the Bharat Sanchar Nigam Limited (BSNL) is taken on record.
(2) Heard the learned counsel for the petitioner and Shri Asit Kumar Chaturvedi, learned Senior Advocate, assisted by Shri Pratul Kumar Srivastava, learned counsel representing the Bharat Sanchar Nigam Limited (hereinafter referred to as BSNL).
(3) By instituting these proceedings under Article 226 of the Constitution of India, the petitioner who is in the business of laying down Optical Fiber Cable has prayed for issuance of writ of mandamus commanding the authorities of BSNL to make payment of "admitted" pending bills as indicated in the letter dated 05.08.2022 which has been enclosed as Annexure-23 to the writ petition.
(4) The first and foremost question which arises in this case is that as to whether for the nature of relief sought in this petition any mandamus can be issued by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.
(5) The law in this regard is well settled. Hon'ble the Supreme Court has held that ordinarily no writ petition can be entertained under Article 226 of the Constitution of India for enforcement of any contractual right or liability, however, in the judgments in the case of State of U.P. Vs. Sudhir Kumar Singh reported in 2020 SCC Online SC 847, in the case of Unitech Limited and others Vs. Telangana State Industrial Infrastructure Corporation (TSIIC) and others reported in 2021 SCC Online SC 99, and in the case of Uttar Pradesh Power Transmission Corporation Limited and Another Vs. CG Power and Industrial Solutions Limited and another, reported in (2021) 6 SCC 15, it has been held that the writ petition in this regard may also be entertained in case the liability of the State or its instrumentalities concerned is admitted or the action appears to be arbitrary.
(6) So far as the facts of the present case are concerned, the petitioner was granted certain work orders pursuant to the tender process for laying down Optical Fiber Cable alongwith Lucknow-Kanpur highway in District Unnao by the BSNL. It has been stated by the learned counsel for the petitioner that seven work orders were given to the petitioner, however, there was no dispute in respect of payment of bills relating to first two work orders. The petitioner performed the job in relation to first two work orders and accordingly, payment was also made. However, in respect of other work orders, the work relating to laying of Optical Fiber Cable could not be done satisfactorily for the reason that certain damage was caused to the cables on account of widening of road by the Public Works Department of the State of Uttar Pradesh. It has been stated that the damage caused on account of widening of road by PWD to the cables laid by the petitioner has been compensated as the damages have been paid by the PWD to the BSNL and accordingly, now as per the submission of the learned counsel for the petitioner, the petitioner is to execute the rest of the work namely the work relating to cables laid by the petitioner which got damaged in the process of road widening by PWD.
(7) For submitting that the BSNL admits the liability, reliance has been placed by the learned counsel for the petitioner on a letter dated 05.08.2022, which has been enclosed as annexure-23 to the writ petition which has been written by an official of the BSNL to the petitioner-company. The said letter has been written in response to certain letters of the petitioner. The official concerned has categorically denied the allegations regarding presence of any delayed/non-payment of bills. The letter dated 05.08.2022, thus after denying the presence of any delay/non-payment of bills gives certain information and accordingly, in view of the aforesaid denial of the delayed/non-payment of bills in the said document itself i.e. the letter dated 05.08.2022 which has been heavily relied upon by the petitioner, it cannot be said that the BSNL has admitted its liability.
(8) Even otherwise, our attention has been drawn to the order dated 21.09.2022 passed earlier by this Court in a writ petition filed by the petitioner namely Writ-C No. 6539 of 2022 [M/s Raj Electric Works Vs. Union of India and others]. The prayer made in the said writ petition was that a direction be issued to the BSNL authorities to make payment of pending bills as indicated in the letter dated 05.08.2022. It is the same letter on which reliance has been placed by the petitioner in this writ petition as well namely, the document annexed as Annexure-23 to the writ petition. While disposing of Writ-C No.6539 of 2022 filed earlier by the petitioner, this Court only provided that in a situation of dispute arising out of an agreement if there is an arbitration clause, parties will be free to invoke the arbitration proceedings. The Court has also observed while passing the order dated 21.09.2022 that parties have agreed to negotiations and accordingly, they may sit together and resolve the dispute accordingly and further that fresh tender process shall be invited if negotiations for carrying out the damaged work failed to materialise.
(9) The Court, thus, did not agree with the claim put-forth by the petitioner in the earlier writ petition and accordingly, disposed of the writ petition with the liberty to the parties either to take recourse to arbitral proceedings or to negotiate the issues.
(10) Learned counsel for the petitioner, at this juncture, has submitted that in pursuance of the order dated 21.09.2022 passed by this Court, the petitioner received an intimation for negotiation on 19.10.2022, however, prior to the said date fixed for negotiations, the BSNL authorities had already issued a letter of intent for getting the damaged work executed, to some other firm and thus, the petitioner participated in the negotiations, however, no solution could be found. That itself in our considered opinion, cannot be a ground for this Court to entertain the writ petition in case the liability arising out of a contract/agreement/ work order is to be enforced, the remedy as already observed by this Court in its order dated 21.09.2022 passed in the earlier writ petition filed by the petitioner, is to take recourse to arbitration proceedings if the agreement between the parties so permits.
(11) In any case, writ proceedings under Article 226 of the Constitution of India, can never be a substitute for seeking a money decree which can appropriately be granted by a court of competent civil jurisdiction.
(12) In view of the aforesaid, we are not inclined to interfere in this writ petition which is hereby dismissed.
(13) However, we provide that notwithstanding dismissal of this writ petition, it will always be open for the petitioner to take recourse to arbitration proceedings or to institute appropriate suit with appropriate prayers before the court of competent civil jurisdiction or to seek any other remedy which may be available under law.
Order Date :- 12.12.2022
N.PAL
