Smt. Mamta Devi vs The State Of Jharkhand
2021 Latest Caselaw 4760 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(C) No. 67 of 2021

Smt. Mamta Devi                           ...     ...    Petitioner
                                 Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Giridih
3. The Block Development Officer, Jamua, Giridih
4. Sri Om Prakash Sahu, Mukhiya, Dharampur Panchayat, Jamua,
   Giridih                          ...    ...    Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Pankaj Srivastava, Advocate For the Respondent-State : Ms. Shrestha Mehta, AC to SC-II

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Order No. 06 Dated: 13.12.2021

The present writ petition has been filed for issuance of direction upon the respondents to pay the due amount for the part work executed by the petitioner and further to allow her to complete the allotted work as well as to pay compensation for the harassment, mental agony and delayed payment.

2. According to the petitioner, she runs a self-help group in Village-Shyamsingh Nawadih, Panchayat- Dharampur and was awarded the work for construction of Anganbari Centre in the aforesaid village. It was resolved in the Panchayat meeting held on 15.03.2017, that the Anganbari Centre in the said village would be constructed over Plot No. 1238 of Khata No. 45, measuring an area of 9.43 acres. The sanction order for the said project was issued by the respondent no. 3 - the Block Development Officer, Jamua, Giridih and the Block Programme Officer, Jamua, Giridih vide memo no. 954 dated 24.03.2017. The petitioner with the help of one Manish Kumar Verma executed more than 40% of the said work, the physical verification of which was done by the Junior Engineer, who duly entered the work done in measurement book no. 69 with valuation thereof. However, the payment for said part of construction work was not made to the petitioner and under such compelling circumstance, she stopped the construction work. The respondent no. 3, vide letter no. 2438 dated 06.10.2018 informed the respondent no. 2 - the

Deputy Commissioner, Giridih that the inspection of the construction work of said Anganbari Centre was carried out by the Block Programme Officer, Jamua, Giridih, who reported that no construction work was done at the sanctioned plot. The said report was based on the report dated 06.10.2018 of Sri Basant Kumar, in-charge Panchayat Sachiv. The petitioner raised objection against the said report and presented the earlier orders of respondent no. 3 as well as the resolution of the panchayat. Thereafter, the respondent no. 3, vide letter no. 2794 dated 29.11.2018 intimated the respondent no. 2 that enquiry report with respect to the construction work of the Anganbari Centre was handed over to the Circle Officer, Jamua and payment would be possible only after completion of the enquiry. It was also mentioned in the said letter that the Anganbari Centre was being constructed at a place other than that mentioned in the sanctioned order. Another report was submitted by respondent no. 3 to respondent no. 2 vide letter no. 822 dated 23.04.2019 stating that Block Panchayati Raj Officer had reported that construction of the Anganbari Centre was not being made at Plot No. 1238, Khata No. 45 as per sanctioned order, rather was being made elsewhere. It was further stated in the said letter that the payment order would be issued only after receiving the enquiry report regarding construction of Anganbari Centre at the sanctioned plot. Another report was submitted by the respondent no. 3 to the respondent no. 2 vide letter no. 922 dated 27.05.2019 stating that since the construction of the Anganbari Centre was not being made at the allotted plot, the payment of the same could not be made. The said report was based on a report dated 27.05.2019 sent by the Block Programme Officer, Jamua, Giridih which itself was based on the report of In-charge Circle Amin, Jamua Circle. One more report was sent by the respondent no. 3 to the respondent no. 2 vide letter no. 1466 dated 09.08.2019 stating that since construction was not made at the allotted plot, it was not possible to make payment for the same. The respondents have never stated as to on which plot the construction work was being carried out by the petitioner. As a pre-condition of the allotment order, the construction of the Anganbari Centre was to

be monitored by the respondents and there was no question of making said construction at any other place than the allotted plot.

3. On the contrary, the learned counsel for the respondents submits that the land under Khata No. 45, Plot No. 1238, measuring an area of 9.43 acres has been recorded in survey Khatian as Gairmajarua Khas land and vide administrative approval/sanction order dated 24.03.2017, the petitioner was directed to make construction of Anganbari Centre at Village - Shyamsingh Nawadih of Dharampur Panchayat. In such circumstance, it was the duty of the petitioner to follow the said direction, however, on lodging of complaint by the petitioner vide Mukhyamantri Jan Samvad Kendra Complaint No. 2018-32305, the matter was enquired through Circle Amin, who measured the land and submitted the report that the Anganbari Centre was not being constructed over sanctioned Plot No. 1238, rather the petitioner was constructing the Anganbari Centre on portion of the land appertaining to raiyati Khata No. 4, Plot No. 1301, which was in complete violation of the official order. Accordingly, the respondent no. 3 issued letter no. 1466 dated 09.08.2019 to the respondent no. 2 intimating that the petitioner did not follow the official order and thus it was not possible to make payment for the said construction.

4. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has sought direction upon the respondents to release payment for part construction of Anganbari Centre building carried out by her. On the other hand, the contention of the respondents is that the petitioner has violated the official order whereby she was directed to make construction of Anganbari Centre over Plot No. 1238 of Khata No. 45, however, the construction was being made over raiyati Plot No. 1301 of Khata No. 4 and as such she is not entitled for any payment.

5. In the case of "Punjab National Bank & Ors. Vs. Atmanand Singh & Ors." reported in (2020) 6 SCC 256, the Hon'ble Supreme Court after discussing several previous judgments, has summarized the law dealing with the scope of intervention by the

High Court in the matter involving money claim, holding as under:

19. The appellant-Bank has rightly invited our attention to the Constitution Bench decision of this Court in ThansinghNathmal (supra). In paragraph 7, the Court dealt with the scope of jurisdiction of the High Court under Article 226 of the Constitution in the following words:--

―7. ... The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.

(emphasis supplied)

20. Similarly, another Constitution Bench decision in Suganmal (supra) dealt with the scope of jurisdiction under Article 226 of the Constitution. In paragraph 6 of the said decision, the Court observed thus:--

―6. On the first point, we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution,

such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. ... We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right."

(emphasis supplied) And again, in paragraph 9, the Court observed as follows:--

―9. We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction.‖ (emphasis supplied)

21. In Smt. GunwantKaur (supra) relied upon by the respondent No. 1, in paragraph 14, the Court observed thus:--

―14. The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a

petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.‖ (emphasis supplied)

22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law.

6. In the case of "Joshi Technologies International Inc. Vs. Union of India & Ors. reported in (2015) 7 SCC 728, the Hon'ble Supreme Court held as under:

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.

7. In the aforesaid cases, the Hon'ble Supreme Court has held that a writ petition is not maintained merely for the reason that the refund of money is claimed by the petitioner against the State as the claim for money can always be made by filing a civil suit. When the refund of money is claimed by filing a writ petition and the question of facts as raised is so complex in nature which requires production of documents and leading of evidences, then in such case, the High Court must relegate the parties to avail remedy of a civil suit. However, in case of admitted facts, the High Court may grant relief to the petitioner by examining the case on its own merit.

8. In the present case, I have perused the sanction order

annexed as Annexure-1 to the writ petition, which reflects that construction of Anganbari Centre of Village-Shyamsingh Nawadih was sanctioned for the land appertaining to Khata No. 45, Plot No. 1238. However, as per the stand of the respondents, the construction was being done over a raiyati land being Plot No. 1301 of Khata No. 4. The petitioner has failed to controvert the said factual stand of the respondents by placing on record sufficient evidence. The respondents have alleged violation of the terms and conditions of the contract by the petitioner which she has failed to controvert. Under such circumstance, the relief as sought by her in the present writ petition cannot be entertained by this Court. The petitioner is, however, at liberty to move before the civil court seeking enforcement of her contractual right, if so advised.

9. The writ petition is accordingly dismissed with aforesaid observation.

(Rajesh Shankar, J.) Manish/AFR