Patna High Court
The State Of Bihar And Ors vs Nikhar Construction Pvt. Ltd. And ... on 21 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.848 of 2018
In
Civil Writ Jurisdiction Case No.11405 of 2013
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1. The State of Bihar through Chief Secretary, Govt. of Bihar, Patna
2. The Principal Secretary, Rural Development Department, Government of
Bihar, Viswasariya Bhawan, Patna
3. The Engineer In -Chief -Cum- Special Secretary -Cum- Authorised Officer,
Rural Road Development Agency, Rural Works Department, Government of
Bihar, Viswasariya Bhawan, Patna
4. The Chief Engineer- 3, Rural Works Department, Viswasariya Bhawan,
Patna.
5. The Superintending Engineer, Rural Works Department, Chapra Circle,
Chapra.
6. The Executive Engineer, Rural Works Department, Work Division I, Chapra.
... ... Appellant/s
Versus
1. Nikhar Construction Pvt. Ltd., through its Managing Director Suvash
Kumar.
2. Suvash Kumar Son of Late Awadhesh Kumar Mishra, Managing Director,
Nikhar Construction Pvt. Ltd., Resident of Mohallah- North Dahiyawan
Tola, P.O.- Chapra, P.S.- Chapra Town, District- Saran.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Aditi Hansaria AC to GA- 01
Mr. Vikash Kumar, SC-11
For the Respondent/s : Mr. Praveen Prabhakar, Advocate
Mr. Ved Prakash Shrivastava, Advocate
Mr. Sanjay Kumar Jha, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE S. KUMAR
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
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(The proceedings of the Court are being conducted by
Hon'ble the Chief Justice/ Hon'ble Judges through
Video Conferencing from their residential
offices/residences. Also, the Advocates and the Staffs
Patna High Court L.P.A No.848 of 2018 dt.21-08-2021
joined the proceedings through Video Conferencing
from their residences/offices.)
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Date : 21-08-2021
The instant Letters Patent Appeal has been preferred
against the order dated 6th of October, 2017, passed by a learned
Single Judge of this Court in CWJC No. 11405 of 2013, titled
as Nikhar Construction Pvt. Ltd. and Anr. Vs. the State of
Bihar and Ors.
In terms of the impugned order, the learned Single
Judge has directed the State/appellant to pay to the writ-
petitioner/respondent herein, all dues arising out of a works
contract. The total amount claimed by the writ-petitioner is
more than Rs. 28 lacs.
According to the writ-petitioner, the said amount
stands admitted by the Executive Engineer, and as such, the writ
petition was maintainable.
In our considered view, the learned Single Judge
seriously erred in directing the appellant/State to pay the amount
for the following reasons:-
(a) The claim arises out of a works contract
agreement, inter alia, containing a clause for adjudication of
dispute through the process of arbitration, which the writ-
Patna High Court L.P.A No.848 of 2018 dt.21-08-2021
petitioner did not invoke;
(b) The writ-petitioner, today has an equally
alternative efficacious remedy of filing an appropriate petition,
before the Bihar Public Works Contracts Disputes Arbitration
Tribunal, constituted to adjudicate such claims arising out of a
works contract;
(c) In any event, mere admission on the part of the
Executive Engineer, more so in view of the disputed questions
of fact and denial of the writ-petitioner's claim by the State in
the counter affidavit, could not have been adjudicated in a writ
proceedings;
(d) Serious disputed questions of fact ought to have
been left to be determined by the Appropriate Authority/Body,
constituted under the Statute or the one which the parties may
have chosen under the contract.
We also notice that the learned Single Judge has
passed the impugned order without going into the merits of the
case, pre-supposing the State to have unequivocally admitted
the amount payable to the writ-petitioner, which is not the fact,
as we notice from the file. Mere recommendation by an
employee of the State for payment of dues, ipso facto would not
tantamount to admission of claims necessitating passing of an
Patna High Court L.P.A No.848 of 2018 dt.21-08-2021
order in exercise of the Court's writ jurisdiction.
The perversity and illegality is writ large.
As such, we quash and set aside the impugned order
dated 6th of October, 2017, passed by a learned Single Judge of
this Court in CWJC No. 11405 of 2013, titled as Nikhar
Construction Pvt. Ltd. and Anr. Vs. the State of Bihar and Ors.
The Letters Patent Appeal stands allowed and the
writ petition stands dismissed reserving liberty to the writ-
petitioner to initiate appropriate proceedings, in accordance with
law, either before the Tribunal or by way of contractual/civil
remedies.
Needless to add, if such proceedings are initiated
within next three months, the issue of limitation shall not come
in the way of the writ-petitioner.
Shri Vikash Kumar, learned Standing Counsel No. 11
concurs with the same.
Needless to add, as and when any such proceedings
are initiated, the same would be considered and decided
expeditiously, and preferably within a period of 9-12 months
therefrom.
The Letters Patent Appeal stands disposed of in the
aforesaid terms.
Patna High Court L.P.A No.848 of 2018 dt.21-08-2021
Interlocutory Application(s), if any, shall stand
disposed of.
(Sanjay Karol, CJ)
( S. Kumar, J)
P.K.P./Amrendra
AFR/NAFR
CAV DATE
Uploading Date 27.08.2021
Transmission Date
