Jharkhand High Court
Ramesh Dutt Pathak vs The State Of Jharkhand Through The ... on 4 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 831 of 2022
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Ramesh Dutt Pathak .... Petitioner.
Versus
1. The State of Jharkhand through the Principal Secretary, Govt. of Jharkhand,
Rural Works Department, Dhurwa, Ranchi.
2. The Chief Engineer, Rural Works Special Area, Dhurwa, Ranchi.
3. The Superintending Engineer, Rural Works Special Circle, Ranchi.
4. The Executive Engineer, Rural Works Special Division, Simdega.
..... Respondents
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CORAM: SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Petitioner: M/s Naresh Pd. Singh and Arvind Kumar Singh, Advocates.
For the State: Mr. Rahul Saboo, GP-II and Saurav Mahto, AC to GP-II.
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10/Dated: 04.09.2023:
Upon hearing the learned counsel for the parties, this Court passed
the following, (Per, Ananda Sen, J.)
ORDER
In this petition, filed under Article 226 of the Constitution of India, the
petitioner has prayed for a direction upon the respondents to issue an order to
release payment in lieu of the additional works executed by the petitioner and also
to allot an amount of Rs.8,53,989.87 as requested by respondent No. 4 through his
letter No. 474 Simdega dated 29.6.2021 (Annexure-8) so that the said outstanding
admitted balance amount can be paid to the petitioner as full and final payment for
the Construction of Block-cum-Circle Office Building for Thetahi Tangar Block in
Simdega District and the duly sanctioned additional works related thereto and to
pay the cost of litigation.
2. Counsel for the petitioner submits that admittedly the construction
work was awarded to the petitioner and the petitioner completed the same, but the
respondents have not paid the balance amount of Rs.8,53,989.87 for the reasons
best known, they have withheld the same. It is the case of the petitioner that the
Executive Engineer, Rural Development, Special Division, Simdega vide letter No.
474 dated 29.6.2021 has admitted the fact that the petitioner has completed the
work and he is entitled for the amount, thus the amount of Rs.8,53,989.87 be
allocated so that the petitioner can be paid the dues. Counsel for the petitioner
further contended that when there is clear admission on the part of the
respondents, they cannot sit tight over the matter and deny the legitimate claim.
Counsel for the petitioner also submitted that the respondents have admitted a part
of the claim but they are taking a plea that the extra work, which was done was
without any written order of the higher authority, but in fact, the Executive Engineer
has directed to undertake the extra construction work, which the respondent-State
has also admitted.
3. The respondents appeared and filed their counter affidavit. In their
counter affidavit they have admitted that the work for construction of Block-cum-
C.O building was allotted to the petitioner after tender a proper process. The
respondents have further admitted that as per the agreement, the construction
value was Rs.3,26,54,703/- out of which, Rs.3,22,53,000/- was paid and an amount
of Rs.4,01,703/- is still unpaid which the petitioner is entitled to receive. In the
counter affidavit, it has further been mentioned that so far as the extra work is
concerned, there is provision that until and unless written order is received from the
Incharge Engineer, the amount will not be paid. As there is no written order of the
Incharge Engineer, though the estimate was prepared by the Executive Engineer,
but as the same was not sanctioned, the petitioner is not entitled to receive the
amount for extra work, which the petitioner has undertaken. Counsel for the
respondents lastly submits that as there is disputed question of fact, this writ
petition is not maintainable.
4. After hearing the parties, we find the fact that the petitioner was
awarded the job to construct the Block-cum-C.O building, Simdega, is not disputed.
Execution of the agreement is also not disputed. The respondents have also
admitted in paragraph-12 of the counter affidavit that out of the contract value, the
petitioner is still entitled to receive Rs.4,01,703/-. During course of argument also,
learned counsel for the State admitted that the aforesaid amount is payable and will
be paid to the petitioner. Thus the dispute is only in respect of the value of extra
work, which has been executed by the petitioner. The record of this case suggests
that the petitioner has undertaken extra work. This fact has also not been denied by
the respondents, but the plea which they have taken is that the higher authority i.e.
the Engineer Incharge has not approved the estimate and the amount of extra
work. From Annexure-8 to the writ petition, which is letter of the Executive
Engineer, Rural Development, Special Division, Simdega written to the Chief
Engineer, it is clear that the petitioner was directed to undertake the extra work for
which, supplementary agreement No. 74F2/2020-21 dated 1.7.2020 was also
executed. The Executive Engineer also wrote to the higher authority that on several
occasions, allotment is being sought for, but the same has not been made.
5. From the aforesaid counter affidavit and the documents, it is clear that
the respondents have denied the payment only on the ground that the Incharge,
Engineer has not approved the extra work. The respondents have not denied the
fact that the extra construction work has been undertaken by the petitioner,
execution of supplementary agreement for extra construction is also admitted. It is
true that the Hon'ble Supreme Court in several judgments has held that in a
contractual matter, the Court should not interfere exercising jurisdiction under
Article 226 of the Constitution of India. When there is disputed question of fact, a
petition under Article 226 of the Constitution of India should not be entertained.
Further, it has been held in several judgments that in case where there is
alternative remedies, the petition under Article 226 of the Constitution should not be
resorted to.
It is needless to refer several judgment on the aforesaid line but the
respondents have referred to and relied upon the judgment delivered in the case of
State of Kerala and Ors. Vs. M.K. Jose reported in (2015) 9 SCC 433. It is normal
proposition that in contractual matter, the Court would show reluctance in
interfering in contractual matter, specially in monetary claim.
6. The Hon'ble Supreme Court in the case of Joshi Technologies
International INC. Vs. Union of India and Ors. reported in (2015) 7 SCC 728 has
observed that there is no absolute bar of the maintainability of the writ petition,
even in contractual matter or where there is disputed question of fact or even when
there is monetary claim. The discretion lies with the High Court, but normally the
Court should not exercise the jurisdiction. In a very recent judgment, the Hon'ble
Supreme Court after taking into consideration several previous judgments, in the
case of M.P. Power Management Co. Ltd. Vs. Sky Power Southeast Solar India
(P) Ltd., reported in (2023) 2 SCC 703 in paragraph 82.6 has held as under:
"82.6. Without intending to be exhaustive, it may include the
relief of seeking payment of amounts due to the aggrieved
party from the State. The State can, indeed, be called upon to
honour its obligations of making payment, unless it be that
there is a serious and genuine dispute raised relating to the
liability of the State to make the payment. Such dispute,
ordinarily, would include the contention that the aggrieved
party has not fulfilled its obligations and the Court finds that
such a contention by the State is not a mere ruse or a
pretence."
Further in Paragraph 82.9, the Hon'ble Supreme Court has held as under:-
"82.9. The need to deal with disputed questions of fact,
cannot be made a smokescreen to guillotine a genuine claim
raised in a writ petition, when actually the resolution of a
disputed question of fact is unnecessary to grant relief to a
writ applicant."
7. Thus, from the aforesaid two paragraphs, it is quite clear that a writ
petition is maintainable in money claim and proper relief can be granted where
there is no disputed question of fact or whether the disputed question of fact has
got no relation with the prayer so made, or the dispute raised is ornamental or
superfluous.
8. Considering the aforesaid judgment, if we apply the facts of this case,
we find that the Execution of the extra work is admitted. The execution of
additional/supplementary agreement for extra work is also admitted. It is also
admitted that some amount arising out of original agreement also remains to be
paid. The respondents have only one ground for non-payment i.e. the extra work
was not approved by the Incharge Engineer. This ground cannot be a ground to
deny the payment to the petitioner for the work, which the petitioner has actually
completed. More so when for undertaking the extra work a supplementary
agreement was also executed. The ground taken by the State in not making the
payment is frivolous. Thus, this is a fit case where jurisdiction under Article 226 of
the Constitution of India can be exercised by giving direction to the respondents to
pay the amount to the petitioner as admitted in paragraph 12 of the counter and
also to pay for the extra work, which the petitioner has undertaken, as per the
supplementary agreement, as assessed in Annexure-8 of this petition.
9. In that view, the respondents are directed to make payment as
directed aforesaid, within sixty days from the date of receipt of a copy of this order,
failing which, the amount will carry interest @ 6% per annum from the date of
entitlement till the actual payment.
10. Accordingly, this writ petition stands allowed.
(Sanjaya Kumar Mishra, C.J.)
Anu/-Cp2 (Ananda Sen, J.)
