Bombay High Court
M/S. Adip Enterprises vs State Of Maharashtra Thru Prin. ... on 2 February, 2024
6-WP.3797.2023
Jvs.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3797 OF 2023
M/s. Adip Enterprises } Petitioner
Versus
State of Maharashtra & Ors. } Respondents
Mr. C. T. Chandratre for the petitioner.
Mr. P. P. Kakade, Government Pleader with
Mr. O. A. Chandurkar, Additional Government
Pleader and Ms. R. A. Salunkhe, AGP for
respondents 1 to 3 (State).
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE: 2nd FEBRUARY 2024
P.C.:
1. Heard Mr. Chandratre, learned counsel for the petitioner
and Mr. Chandurkar, learned Additional Government Pleader for
the respondents.
2. By instituting the proceedings of this petition under Article
226 of the Constitution of India, the petitioner, who is a
contractor, has prayed that the respondents be issued a
direction to take action in respect of preparation and payment of
final bills and further to disburse the amount of final bill within a
period of two months.
3. The petitioner was awarded certain works through the
tender process. As per the petitioner, two of the works allotted
to it have been completed way back on 4th April 2022, however,
the third work is in progress. The details of the works, the stage
6-WP.3797.2023
of their completion and bills etc. are given in paragraph 5 of the
writ petition in a tabular format, which is extracted herein
below:-
Sr. Name of work Tender No. Date of Date of Date on which Amount of
No. work order completion SDO/petitioner final bill yet
has submitted to be
the bills received
month of
submission of
the bills
1 CCB@ B1/AC&CE/ 18.01.2021 4.04.2022 19.04.2022 65,28,598/-
Biladpada, 04/2020-21 25.07.2022
Dongripada
No. 1 (Adip Ent.,
Dongaripada petitioner
No.2 Karticha submitted Bill
Dahad, dt.)
Panodapada-
Chalnicha
Dahad, Tal.
Dahanu, Dist.
Palghar
2 CCB@ B-1 18.01.2021 4.04.2022 19.04.2022 1,03,10,445/-
Hadalpada & RWCO/05/2020- 20.07.2022
Sonarpada, 21
Tal. Talasari, (Adip Ent.,
Dist. Palghar Petitioner
submitted bill
dt.
3 KT Weir at B-1/46 of 2019- 07.12.2019 In progress Balance Rs. 39.64 (as
Eksal Tal 2020 payment of 2nd per deptt.
Bhivandi Running And as
account bill against Rs.
68.19 as per
Bill dated
25.07.2022
submitted by
petitioner
4. Learned counsel for the petitioner relies upon a
Government Resolution dated 9th August 2012, whereby it has
been provided that on completion of a work, within 15 days, a
completion report shall be submitted and on receipt of the
completion report, a completion certificate shall be submitted by
the authority/officer concerned, whereupon, the defect liability
is to be ascertained and fixed and thereafter, final measurement
is to be taken. As per the said Government Resolution, the
payment for the work done has to be made within two months
from the detail measurement is taken.
6-WP.3797.2023
5. It has been argued by the learned counsel for the
petitioner that in terms of the aforesaid Government Resolution,
the respondents are not processing the matter neither they
have made payment as due against that.
6. The issue raised in this writ petition exclusively lies in the
realm of a contract. The prayer made in the writ petition
essentially is for issuing a direction for payment of bills. Thus,
by filing the writ petition, what the petitioner claims in effect is
a money decree. In such circumstances, in our opinion, a
petition under Article 226 of the Constitution of India will not be
maintainable.
7. Learned counsel for the petitioner has relied upon a
judgment of the Hon'ble Supreme Court in the case of Madras
Aluminium Co. Ltd. vs. Tamil Nadu Electricity Board and
Anr.1 as also a judgment of a coordinate Bench of this Court in
the case of M/s. Adip Enterprises vs. The State of
Maharashtra & Ors.2 dated 16th August 2018 to impress upon
the Court that even in contractual matters, writ jurisdiction of
this Court can be exercised.
8. So far as the principle propounded by the Hon'ble Supreme
Court in the aforesaid judgment is concerned, there cannot be
any quarrel that even in contractual matters the State, its
agencies and instrumentalities have to abide by the principles of
non-arbitrariness as embodied in Article 14 of the Constitution
of India. However, the writ jurisdiction of this Court, in our
opinion, cannot be stretched to seek effectively a money decree.
AIR 2023 SC 3353
Writ Petition No. 11829 of 2015
6-WP.3797.2023
9. The grievance of the petitioner, as raised in the writ
petition, is that despite successfully completing the two works
way back on 4th April 2022, neither the final measurement is
being taken by the respondents nor the bills against the said
works are being paid. The petitioner has even sought a direction
to be issued by this Court in this writ petition for making
balance payment of the running bills in respect of the third work
which is still in progress.
10. In our opinion, for the prayer made in the writ petition
seeking a direction for payment of the bills in relation to certain
works executed and the work in progress, it will be
impermissible for this Court to exercise its jurisdiction under
Article 226 of the Constitution of India. The remedy, in fact, of
the petitioner effectively lies in either instituting an appropriate
suit with appropriate prayers before a competent Civil
Court/forum or to invoke the remedy of arbitration, if it is
available.
11. For the reasons aforesaid, we are not inclined to entertain
this writ petition, which is hereby dismissed.
12. We, however, make it clear that notwithstanding the
dismissal of the writ petition, it will be open to the petitioner to
seek any other legal remedy, which may be available to the
petitioner in law, including the remedy of approaching the
administrative authorities.
JAYANT
VISHWANATH
SALUNKE
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
