Devendear Adhikari vs The State Of Madhya Pradesh
2023 Latest Caselaw 13293 MP

                                              W.P. No.16518/2023
          IN THE HIGH COURT OF MADHYA PRADESH
                        AT INDORE

                          BEFORE
 HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
                             &
           HON'BLE SHRI JUSTICE PRANAY VERMA
                ON THE 16th OF AUGUST, 2023



                WRIT PETITION NO.16518/2023

    Between:-
    DEVENDRA ADHIKARI S/O SHRI SURINDER
    SINGH ADHIKARI, AGED ABOUT 29 YEARS,
    OCCUPATION CONTRACTOR, R/O 19,
    SARASWATI NAGAR-1, GWALIOR(M.P.)

                                                           ....PETITIONER


    (BY SHRI RAM KISHORE SINGH YADAV, ADVOCATE)

    AND
    1. STATE OF MADHYA PRADESH THROUGH
    PRINCIPAL SECRETARY, MINISTRY OF
    URBAN DEVELOPMEBNT PALIKA BHAWAN,
    SHIVAJI NAGAR, BHOPAL(M.P.)

    2. INDORE MUNICIPAL CORPORATION
    INDORE,    DEPARTMENT    OF     JAL
    YANTRALAY AND DRAINAGE THROUGH
    ITS COMMISSIONER, INDORE M.G. ROAD,
    INDORE(M.P.)

    3. EXECUTIVE ENGINEER, WATER WORKS
    AND       DRAINAGE,       MUNICIPAL
    CORPORATION, INDORE M.G. ROAD,
    INDORE (M.P.)

    4. ZONAL OFFICER, ZONE-18, MUNICIPAL
    CORPORATION INDORE, M.G. ROAD,
    INDORE


                                                     .....RESPONDENTS
(BY SHRI ANIKET NAIK, LEARNED DY. ADVOCATE GENERAL FOR THE STATE)
                                                        W.P. No.16518/2023
      This writ petition coming on for admission/hearing this day,
Hon'ble Justice Shri Sushrut Arvind Dharmadhikari passed the
following:
                                  ORDER

Heard on the question of admission and interim relief. In this petition under Article 226 of the Constitution of India, the petitioner is aggrieved by the order dated 09/09/2022, passed by the respondent No.4, whereby the contract of the petitioner for construction of retaining wall on drainage of Sanwad Nagar bridge to Gauri Manzil at Zone - 18, Ward 53 Indore was executed on 16/08/2019. However, by the impugned order, the same is cancelled and the security money as well as the Running Account Bills dated 27/02/2020 and 08/09/2021 are directed to be forfeited.

02. On a query of this Court with regard to maintainability of this petition, learned counsel for the petitioner contended that though in the agreement as per Clause-12 there is a Dispute Resolution System, however, if there is a violation of the principle of natural justice, then according to the Apex Court Court Judgment in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai(1998) 8 SCC 1, it is held that the alternative remedy is not a bar at least three contingencies, namely where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the virus of the Act is challenged.

03. On perusal of the documents annexed alongwith the annexures, it is apparent that there is a dispute in respect of the Running Account Bills of the petitioner which cannot be gone into by this Court in exercise of jurisdiction under Article 226 of the Constitution of India. The agreement provides for specific remedy which ought to have been availed by the petitioner.

W.P. No.16518/2023

04. In view of Clause - 12 of the agreement, this Court refrains from entertaining this petition.

05. The Apex Court in the case of Hindustan Coca Cola Beverage Private Limited vs. Union of India and others (2014) 15 SCC 44 has held that when the statute provides for statutory appeal, the said remedy is to be availed by the litigating parties. In Hameed Kunju vs. Nizam (2017) 8 SCC 611 the Apex Court held that any petition under Article 227 of Constitution of India should be dismissed in limine when there is statutory provision of appeal. In another case Ansal Housing and Construction Limited vs. State of Uttar Pradesh and others (2016) 13 SCC 305 it is held that when there statutory appeal is provided, then the said remedy has to be availed.

06. In view of the aforesaid and also looking to the fact of availability of an efficacious alternative remedy of filing an appeal before the appropriate forum, we do not find it proper to entertain this petition. Petitioner would be at liberty to avail the alternative remedy in accordance with law, if so advised.

07. Petition is, therefore, dismissed.

                                                   (S.A. DHARMADHIKARI)                                       (PRANAY VERMA)
                                                           JUDGE                                                    JUDGE



                      pn
                    Digitally signed by PREETHA HARI NAIR

DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF

PREETHA HARI NAIR MADHYA PRADESH BENCH INDORE, 2.5.4.20=5431da3716f911ecd1cb3fc6dc91ea2cacec60259cb241b9ad42416f404bb303, postalCode=452001, st=Madhya Pradesh, serialNumber=0EC5BE08895BA17A6074239F753A38DE8188C5E65085178B87CD8C85BA5B87 CC, cn=PREETHA HARI NAIR Date: 2023.08.17 16:52:51 +05'30'