Katta Chinna Kotaiah vs The State Of Ap
2022 Latest Caselaw 2168 AP

             HONOURABLE SRI JUSTICE M. GANGA RAO

                     Writ Petition No.3379 of 2020

ORDER:

This writ petition is filed to issue a writ, order or direction more

particularly in the nature of Writ of Mandamus or any other

appropriate writ, declaring the action of the respondents in not paying

the final bills to the petitioner in respect of the Agreement No.1/2018-

2019 dated 24.10.2018 in Neeru Chettu Programme, for essential

repairs to Canal, strengthening of banks on Inumella Major from K.M.

3.900 to K.M 7.025 in Block No.11 A of Nagarjuna Sagar Jawahar

Canal near Inumella Village, Ipur Mandal, Guntur District, even after

approval of the First and Final Bill payable to the petitioner by the

respondents 1 to 3 is arbitrary and illegal.

2. The case of the petitioner is that he was entrusted with the

work of essential repairs to Canal, strengthening of banks on

Inumella Major from K.M. 3.900 to K.M 7.025 in Block No.11 A of

Nagarjuna Sagar Jawahar Canal near Inumella Village, Ipur Mandal,

Guntur District and agreement No.1/2018-2019 dated 24.10.2018

was entered with the 2nd respondent - Executive Engineer, NSJC O&M

and SIFT Division, Vinukonda, Guntur District for contract value of

Rs.9,98,000/- with the stipulated completion period of work as 90

days. As per the terms and conditions of the agreement, the

petitioner started the work immediately and completed the work in all

respects as per the agreement conditions and period. After

measurement of the work and quality and vigilance check, bills were

approved by the 2nd and 3rd respondents and bills submitted on

13.3.2019 were approved by the 2nd and 3rd respondent and sent for

payment to the Treasury and Accounts Department, whereas the 1st

respondent is not releasing the amount of bills payable to the

petitioner on the ground that the Government initiated enquiry on all

the works carried under Neeru Chettu programme in the State and

directed the Director General, Vigilance and Enforcement authority to

submit a report vide Memo dated 29.8.2019. Non-payment of the

final bills pending enquiry by the authority is against the terms of the

agreement and the enquiry is initiated only to defer the payments,

which is illegal and arbitrary. Being aggrieved by the inaction of the

respondents in not paying the bill amount to the petitioner, the

present writ petition is filed.

3. The 1st respondent filed counter stating that the Government

entrusted the work to the petitioner vide agreement dated 24.10.2018.

Clause No.3 of the agreement deals with "Adjudication of disputes".

The writ petition is not maintainable before this court for

adjudication. The petitioner claimed that the bills forwarded to Pay

and Accounts Office are undisputed but the bills were returned

stating that they are disputed amounts. The Principal Secretary to

Panchayat Raj and Rural Development Department vide Letter dated

1.8.2019 instructed the Director General, Vigilance and Enforcement,

Vijayawada to conduct discreet enquiry on all the works carried out

under "Neeru Chettu" programme in the State and to furnish the

report to take further necessary action. The enquiry is not yet

completed, however, there are several irregularities committed in

execution of Neeru Chettu programme. Hence, the payment of bills to

the petitioner could not be said to be undisputed bills.

4. Sri Prabhunath Vasireddy, learned counsel for the petitioner

vehemently submits that the petitioner was entrusted with the work

under agreement and the same was completed as per the terms and

conditions of the agreement. Part and final bill submitted by the

petitioner were verified and check measured and certified by the

quality control and Vigilance Department and the 2nd and 3rd

respondents submitted the bills for payments. At that stage, the

Government initiated enquiry in all the works executed under Neeru-

Chettu programme. Accordingly, the Director General, Vigilance and

Enforcement Department has initiated enquiry but nothing against

the petitioner is submitted so far. Even as per the report submitted

by the Vigilance and Enforcement, there are no adverse reports

against the petitioner and withholding the payment of the petitioner is

arbitrary and illegal. For payment of the undisputed bills by the

respondent authorities and for withholding the same, the petitioner

can approach this Court under Article 226 of the Constitution of India

as held by the Apex Court in Surya Constructions Vs. State of Utter

Pradesh and others1, following the judgment in ABL International

Ltd. Vs. Export Credit Guarantee Corporation of India Ltd.2.

Following the same, several writ petitions were disposed of on similar

lines by this Court. The Government preferred writ appeals and the

Division Bench has not stayed the order passed in similar set of

cases.

4. Sri C. Suman, learned Special Government Pleader appearing

for Advocate General appearing for the respondents while reiterating

the averments of the counter states that the bills submitted by the

petitioner are disputed as the Finance Department returned the same.

On the ground that the Vigilance and Enforcement enquiry is pending

in all the works of Neeru Chettu programme, the bills are not released

and when once the dispute arises, the writ petition is not

(2019) 16 SCC 794

(2004) 3 SCC 553

maintainable and he placed reliance on the decision of the Apex Court

in Joshi Technologies vs Union Of India & Ors3, wherein at Para

69.2 and 69.4 it is held as follows:

"Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said made of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.

Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances."

5. Having considered the facts and circumstances of the case,

submissions of the learned counsel and on perusal of the material

record, this Court found that the work for essential repairs to Canal,

strengthening of banks on Inumella Major from K.M. 3.900 to K.M

7.025 in Block No.11 A of Nagarjuna Sagar Jawahar Canal near

Inumella Village, Ipur Mandal, Guntur District was entrusted to the

petitioner vide agreement dated 24.10.2018 and he completed the

work as per the terms and conditions of the agreement. The

respondents 2 and 3 who are agreement holders with the petitioner

approved the bills submitted by the petitioner on 13.3.2019 after

satisfying that the work was completed, measured and quality control

and vigilance reports were also taken and bills were forwarded for

payment to the Treasury and Accounts Department. The Finance

Department returned the bills on the ground that the Government

has taken a decision to enquire into all the works in Neeru Chettu

programme as several works are not properly completed and there are

several irregularities. The Director General of Vigilance and

Enforcement has proceeded with the enquiry but nothing adverse is

(2015) 7 SCC 728

stated against the works executed by the petitioner. In those

circumstances, mere return of the bills by the Finance Department,

pending enquiry cannot be countenanced and concluded that the

dispute is with regard to rising of the bills. The Apex Court and this

Court in catena of decisions held that when there is non-payment of

the undisputed bills, the same is violative of Articles 14 and 16 of the

Constitution of India. The counsel for the petitioner rightly placed

reliance on the decision of the Apex Court in Surya Constructions

Vs. State of Utter Pradesh and others, following the judgment in

ABL International Ltd. Vs. Export Credit Guarantee Corporation

of India Ltd cited supra. In view of the Apex Court judgment, the

contention of the learned Government Pleader that the writ petition is

not maintainable before this Court could not be countenanced. The

bills of the petitioner dated 13.3.2019 are admitted by the

respondents and forwarded for payment after due measurements and

obtaining quality control and the Vigilance report. Hence, the

authorities are estopped from stating that the bills are submitted

without executing the works. On the mere ground of pendency of

Vigilance report, payment cannot be stopped. Accordingly, there shall

be a direction to the respondents to pay the bill amount of

Rs.8,08,828/- to the petitioner within a period of six weeks from the

date of receipt of copy of this order.

6. Accordingly, the Writ Petition is disposed of. No order as to

costs.

As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.

                                                        _____________________
                                                          M. GANGA RAO, J
Date:         .04.2022

CSR





HON'BLE SRI JUSTICE M. GANGA RAO




      W.P.No.3379 OF 2020

         DT:       .4.2022




CSR