Calcutta High Court (Appellete Side)
Jaya Construction & Company And Another vs State Of West Bengal And Others on 15 December, 2023
AD-19
Ct No.09
15.12.2023
TN
WPA No. 16357 of 2023
Jaya Construction & Company and another
Vs.
State of West Bengal and others
Ms. Santi Das
.... for the petitioners
Ms. Jyotsna Roy,
Ms. Srijani Mukherjee
.... for the State
Mr. Sirsanya Bandopadhyay,
Mr. Arka Kr. Nag,
Mr. Tirthankar Dey
.... for the BMC
1. Learned counsel for the petitioners contends that
the petitioners did several works for the
respondent-authorities, that is, the Bidhannagar
Municipal Corporation. After the completion of
such work, completion certificates were duly
issued by the Executive Engineer, PWD,
Bidhannagar Municipal Corporation (for short
"the BMC"). The petitioners raised bills for the
work done. However, the respondent-authorities
are sitting tight over the matter.
2. Learned counsel for the BMC, by placing reliance
on the affidavit-in-opposition filed in the form of a
report, claims that the reliefs sought in the writ
petition pertain to alleged breach of contract on
the part of the BMC and ought to be a subject-
matter of a civil dispute at best. It is contended
that the claims are disputed by the BMC and, as
such, the writ court ought not to grant relief,
particularly since no public law element is
involved.
3. It is contended that a part of the claims is time-
barred. With particular reference to the claim of
Rs.1,20,119/- made by the petitioner, it is
pointed out that the said claim pertains to alleged
dues of the year 2012 whereas the writ petition
has been filed in the year 2023, about 11 years
thereafter.
4. That apart, it is contended that at least two
quanta of money to the tune of Rs. 5 lakh and
Rs. 2.4 lakh have already been disbursed in
favour of the petitioners which has not been
disclosed in the writ petition. That apart, there is
palpable discrepancy between the work orders
and the completion certificates as well as the
pleadings in the writ petition.
5. Learned counsel for the BMC cites the judgment
of Orissa Agro Industries Corpn. Ltd. and others
vs. Bharati Industries and others, reported at
(2005) 12 SCC 725 in support of the proposition
that where disputes revolve around questions of
fact, the matter ought not to be entertained
under Article 226 of the Constitution of India.
The best course of action would be to relegate the
matter to a money suit.
6. In support of the same proposition, learned
counsel also cites Godavari Sugar Mills Limited
vs. State of Maharashtra and others, reported at
(2011) 2 SCC 439, where the Supreme Court laid
down several stipulations including that normally
a petition under Article 226 will not be
entertained to enforce a civil liability arising out
of a breach of a contract or a tort to pay an
amount of money due to the claimants. The
proper remedy was a civil suit. The Supreme
Court went on to observe that while enforcing
fundamental or statutory rights, the High Court
has the power to give consequential relief by
ordering payment of money realized by the
Government without the authority of law.
However, the Supreme Court made a distinction
between money which was collected and a refund
was sought in view of some erroneous
assessment or legal consideration from an
ordinary claim for refund of money. In the latter
case, it was observed, the writ jurisdiction is used
sparingly and a civil suit is the appropriate
remedy.
7. Learned counsel next cites Eastern Coalfields
Limited vs. Ravi Udyog and others, reported at
1994 Supp (2) SCC 466, for the proposition that if
there was a claim and counter-claim, the High
Court acted without jurisdiction in segregating
the claims to an admitted amount and to a
disputed amount. It was observed that the entire
claim could be decided in the civil suit to which
the parties were relegated in the said case.
8. Learned counsel next relies on Bareilly
Development Authority and another vs. Ajai Pal
Singh and others, reported at (1989) 2 SCC 116.
In the said judgment, the Supreme Court
distinguished between contracts which are non-
statutory and purely contractual and those which
are statutory. In respect of non-statutory
contracts, the rights are governed only by the
terms of the contract and it was held that no writ
or order under Article 226 of the Constitution can
be issued.
9. A perusal of the annexures to the writ petition in
the present case indicates that certain purported
completion certificates have been annexed by the
petitioners, in particular, those annexed at
pages-23, 25, 27, 57, 61, 65, 67 and 70.
10. It is, however, observed that there is discrepancy
at least in respect of some of the said completion
certificates with the associated work orders which
have been annexed to the writ petition, although
in some of the cases (one has been pointed out by
learned counsel for the petitioners), the work
orders tally with the completion certificates with
regard to the tender number .
11. That apart, the claim made in the writ petition is
to the tune of Rs.65,90,449/-, which is based on
a chart given by the petitioners in paragraph
no. 21 at pages 13-15 of the writ petition. A
perusal of the quanta of claims with the
corresponding completion certificates given there
shows palpably that most of the dates of the
completion certificates given in the said chart,
which are the sole basis of the claim, do not tally
at all with the annexures to the writ petition. In
fact, the court perused the first few completion
certificates dates, corresponding to which no
annexure is found in the writ petition at all.
12. Thus, although the petitioners rely on purported
completion certificates, there is utter variance
between the pleading and proof which would not
entitle the petitioners to the reliefs claimed.
13. In any event, since the claims are disputed
squarely by the respondent, a calculation and a
detailed evidence-taking procedure is required to
be gone into before deciding conclusively whether
the claims of the petitioners are valid.
14. Moreover, to substantiate the claims, the
petitioners are also required to tally the
corresponding work orders with the completion
certificates which again has to be in consonance
with the pleadings.
15. Thirdly, the petitioners are also required to prove
the veracity of the documents in due process of
law as envisaged in the Code of Civil Procedure
and the Evidence Act for the court to grant a
monetary relief to the petitioners on the basis of
such documents, particularly since the veracity
of some of the documents have been controverted
by the respondent.
16. Keeping in view the ratio laid down in the
judgments cited by the respondent, this court is
of the opinion that, in the present case, there is
no clear-cut admitted claim for the court to direct
the respondent to disburse the amounts claimed
by the petitioners. Even if the court could have
been lenient inasmuch as the work done by the
petitioners pertains to a public work, which has
an touch of public law element, in the
circumstances as indicated above, it would be a
dangerous precedent to grant the relief as sought
in the writ petition in an application under Article
226 of the Constitution of India without going
into a fact-finding endeavour upon adduction of
proper evidence in due course of law.
17. In such view of the matter, WPA No. 16357 of
2023 is dismissed without any order as to costs.
18. However, nothing in this order shall preclude the
petitioners from instituting a proper suit before a
competent civil court for the present reliefs
subject, of course, to the law of limitation. If
such a suit is filed, the civil court shall decide all
issues in accordance with law without being
influenced on merits by any of the observations
made hereinabove.
Urgent photostat certified copies of this
order, if applied for, be made available to the
parties upon compliance with the requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
