Madhya Pradesh High Court
M/S Amit Upadhyay Thr Proprietor ... vs The State Of Madhya Pradesh on 6 April, 2021
Author: Anand Pathak
1
THE HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
(Sheel Nagu & Anand Pathak, J.J.)
W.P.No.4865/2021
(M/s Amit Upadhyay Vs. State of M.P. and Ors.)
Shri M.L.Swarnkar, learned counsel for the petitioner.
Shri R.P.Singh Kaurav, learned Government Advocate for
respondents/State.
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ORDER
[Delivered on this 6th day of April, 2021]
Per Justice Anand Pathak, J.
The instant petition under Article 226 of the Constitution of
India is being preferred being crestfallen by the inaction of
respondents whereby the alleged balance amount of final bill
amounting to Rs.45,94,566/- has not been paid by the respondents
to the petitioner.
2. Grievance as reflected in the submissions and pleadings of
the petitioner is that petitioner is a proprietorship firm and in
pursuance to work order dated 25.08.2014 issued in favour of
petitioner for construction of cement concrete canal lining,
structure, repair of structures and drilling and grouting work of
Rajeev Sagar Tank Project, petitioner/firm completed the said
project. The stipulated date of completion of work was 24.08.2016.
3. As per the submission, petitioner completed his work before
time i.e. on 22.08.2016 itself and submitted his final bill for
payment, but since the balance amount as per the revised estimate
has not been paid to him for last more than four years despite
issuance of notices, then petitioner preferred this petition for
payment of balance amount.
4. Learned counsel for the petitioner while placing
order/judgment rendered by Apex Court in the case of M/s Surya
Construction Vs. State of U.P. and Ors. reported in (2019) 16
SCC 794 passed on 08.03.2019 in Civil Appeal No.2610/2019 as
well as recent judgment of Apex Court in case of UNITECH
Limited & Ors. Vs. Telangana State Industrial Infrastructure
Corporation (TSIIC) & Ors. reported in 2021 SCC Online SC 99
passed in Civil Appeal No.317/2021 tried to bring home the legal
position that contractual rights of the State are subject to judicial
review under Article 226 of the Constitution. Despite making
frequent requests for payment, no affirmative steps have been taken
by the State, therefore, the petition has been preferred.
5. Per-contra, counsel for the respondents/State opposed the
prayer and submits that case involves disputed questions of fact.
According to the him, the work of petitioner was not upto the mark
therefore, defect liability period after physical completion of work
stood extended until the defect is rectified and on the basis of
instructions, he submits that petitioner did not rectify the defect and
case bears disputed factual matrix, therefore, deserves to be
dismissed with cost.
6. Heard learned counsel for the parties on admission at length
and considered the arguments advanced by them.
7. It is a case where petitioner and respondents are at
loggerheads over the payment of alleged balance amount because
petitioner on the one hand claimed that he worked with revised
estimate of contract i.e. 27.72% above UCSR and therefore, amount
of contract was Rs.7,87,31,717/- and whereas estimated amount as
per respondents/State was something else and as per the
submissions of State, all payments have been made to the petitioner.
8. When disputed questions are in the offing, then it is in the
interest of justice that extraordinary jurisdiction by way of
prerogative writ be not exercised because this Court cannot venture
into factual arena where claims/counter claims one being raised by
the parties. It is in the fitness of things that petitioner must avail
alternate remedy (if any available to it by now) in accordance with
law.
9. Judgments so relied upon by the petitioner are of no help to
the petitioner because they move into different factual realm
because in those cases extraordinary jurisdiction was invoked on
facts which were not being disputed by rival parties, whereas
present case bears tenor and texture of disputed facts. Question of
alternative remedy also stares at the petitioner.
10. Resultantly, this Court declines interference and petitioner is
at liberty to take recourse to alternative remedy available to it in
accordance with law.
Petition sans merit and is hereby dismissed.
(Sheel Nagu) (Anand Pathak)
Ashish* Judge Judge
ASHISH
CHAURASIA
2021.04.07
10:20:39
+05'30'
