Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 2 Ors on 1 August, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/5
GAHC010106222019
2025:GAU-AS:10007
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3316/2019
ARUP GOGOI
SON OF LATE TARA NATH GOGOI, RESIDENT OF HOUSE NO.-23, BYE
LANE-1, AJANTA PATH, SURVEY, BELTOLA, P.S.- HATIGAON, GUWAHATI-
781028, DISTRICT- KAMRUP(M), ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS.
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT OF ASSAM,
URBAN DEVELOPMENT DEPARTMENT, DISPUR, GUWAHATI- 781006,
KAMRUP(M), ASSAM.
2:ASSAM URBAN WATER SUPPLY AND SEWERAGE BOARD
( AN ASSAM GOVERNMENT UNDERTAKING)
REPRESENTED BY THE MANAGING DIRECTOR
AMRITPUR PATH
GANESHGURI
GUWAHATI- 781006
KAMRUP(M)
ASSAM.
3:EXECUTIVE ENGINEER
DIBRUGARH DIVISION
ASSAM URBAN WATER SUPPLY AND SEWERAGE BOARD (AN ASSAM
GOVERNMENT UNDERTAKING)
DIBRUGARH
ASSAM
Page No.# 2/5
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocate for the petitioner(s): Ms. C M Deka
Advocate for the respondent(s): Mr. R Talukdar for respondent Nos.1 and 2
Date of hearing & judgment : 01.08.2025
JUDGMENT & ORDER(ORAL)
Heard Ms. M Deka, the learned counsel appearing on behalf of the petitioner.
Mr. R Talukdar, the learned counsel, who represents the respondent Nos.1 and
2. None appears on behalf of the respondent No.3.
2. The petitioner herein has approached this Court being aggrieved on
account of non-payment of an amount of Rs.12,37,524/- which the petitioner
claims to be entitled to having completed the work in question. The materials on
record show that the preliminary work order was bearing No.UWS(T)-
1237/2005/Pt-1/63/261 dated 29.08.2012 was issued to the petitioner for
construction of water retaining structure (Balance part of 550cm capacity
Elevated Service Reservoir) for Makum Town Water Supply Scheme was allotted
to the petitioner for an amount of Rs.58,50,924/- thereupon, the agreement
was entered into by and between the petitioner and the respondent authorities
and pursuant thereto a final work order was issued on 16.10.2012.
Page No.# 3/5
3. It is the case of the petitioner that the petitioner had already received an
amount of Rs.54 lakhs, out of the total contractual amount of Rs.58,50,924/-
and there was a balance of Rs.4,50,924/-, which the petitioner was entitled to.
In addition to that, the petitioner was also entitled to the security deposit of
Rs.3,00,600/- and Rs.4,86,000/- which was deducted @9% as Performance
Security. In total, the petitioner was entitled to Rs.12,37,524/-. But the
petitioner on various occasions requested the respondent authorities to make
payment of the said amount. However, as no payment was made, the petitioner
approached this Court by filing the present writ petition.
4. It is seen that this Court issued notice on 24.05.2019. Thereupon, the
respondent No.3 had filed an affidavit-in-opposition wherein it has been
categorically mentioned that the petitioner did not complete the work in the
entirety. The stand of the respondent No.3 can be seen from paragraph 6 of the
said affidavit-in-opposition which is reproduced hereinunder:
"6. That with regards to the paragraph 5 of the writ petition, the deponent begs to
state that the work was allotted to the petitioner for execution, testing and
commissioning of the work in all respect and to be completed within 8(Eight)
months failing which penalty may be imposed as per clause 2 of the agreement which
was signed between the petitioner and the respondent Board, represented by
Respondent No.2. The petitioner was required to do the testing of the Elevated Service
Reservoir which is required to comply of from the date of commissioning and handing
over the works to the then Respondent No.3, the defect liability period of the contract
remains for 12(Twelve) months. Any defects occurred in between that period will have
to be rectified by the contractor at his own cost and risk. During testing of the said
Elevated Service Reservoir (ESR), by the respondent Board several leakages occurred in
Elevated Service Reservoir(ESR) and the respondent Board requested the petitioner to
Page No.# 4/5
rectify the said leakages. The then Respondent No.3 also requested the petitioner to
remove the scaffolding
used for the Elevated Service Reservoir (ESR) to clear the site, which the petitioner did
not abide by. Since the petitioner did not repair the leakages after several requests by
the respondent Board, the officials of the respondent Board had to take initiative of its
own for repairing the said leakages for the sake of the project. The petitioner did not
complete the work as per tender agreement."
5. From the above quoted paragraph, it would be seen that the
respondent authorities categorical stand is that the petitioner is not
entitled to any further amount on the ground that the petitioner had
failed to complete the entire work as per the tender agreement. It is
further pertinent to take note of that the said affidavit-in-opposition
was filed on 30.08.2019 and there was no reply filed to the said
averments made in the said affidavit-in-opposition, more particularly,
paragraph 6 as quoted hereinabove. From the above, therefore, it
appears that there are disputed questions of fact as to whether the
petitioner is entitled to the amount so claimed in the instant writ
petition or not. This disputed question of fact cannot be adjudicated in
exercise of the jurisdiction under Article 226 of the Constitution.
6. Accordingly, this Court dismisses the instant writ petition on the
ground of non-entertainability.
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7. Before parting with the records, this Court, however, observes that
the period during which the instant writ petition has been pending i.e.
from 14.05.2019 till date be excluded while computing the period of
limitation, if the petitioner prefers any suit before the competent
Court of Jurisdiction.
JUDGE
Comparing Assistant
