Telangana High Court

Sri Khadesh Sunder vs The State Of Telangana on 11 July, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

        HON'BLE MRS JUSTICE SUREPALLI NANDA


            WRIT PETITION No.31008 of 2023

ORDER:

Heard Mr.P.Swathi Menon, learned counsel

appearing on behalf of the petitioner, learned Assistant

Government Pleader for School Education appearing on

behalf of respondent Nos.1 and 5, Mr.A.Yadav Reddy,

learned Standing Counsel for TSEWIDC appearing on

behalf of respondent Nos.2 to 4 and Ms.P.K.KALYANI,

learned Standing Counsel for RMSA appearing on behalf

of respondent No.6.

2. The petitioner approached the Court seeking the

prayer as follows:

"......to issue writ or order or direction more so in the nature of writ of mandamus declaring the action of the respondents more particularly respondent No.3 in not settling the amounts for the construction of class rooms of ZPHS (boys) Armoor, as illegal, arbitrary, high handed and violative of Article 14 300-A of Constitution of India and consequently direct the respondent Nos.2 to 4 to release the balance of Rs.13,17,722(54,80,222-41,62,500 = 13,17,722) and settle the claims along with interest from the date of hand over letter i.e., 21.11.2020 to till date of realization and pass such other order or orders as this Hon'ble Court deems fit and proper in the circumstances of the case."

SN,J Wp_31008_2023

3. The case of the petitioner, in brief, is that the petitioner

agreed to construct the Zilla Parishad High School rooms

G+1(3+3) i.e., total six class rooms on the basis of estimated

rate i.e.,Rs.54,80,222/- as cited by the respondent No.3 to

the School Management Committee, ZPHS (Boys), Armoor

vide Lr.No.A1/SSA/ZPHS(B)Armoor/2018 dated 12.10.2018.

To carry out construction, respondent No.3 released 75% of

the amount i.e. Rs.41,62,500/- during the construction, the

School Management placed a request before the petitioner to

modify the construction from 'G+1(3+3)' to 'G+1(4+4)' i.e.,

additional two class rooms along with steps and Head room

saying that they will arrange the funds for additional

construction as well and the petitioner had constructed the

same. After completion of construction, the ZP High School,

represented by its Head Mistress issued Handover Letter to

the respondent No.3 and also requested to release the

estimated cost of Rs.12,48,000/- in relation to 1+1 additional

class rooms and another letter dated 21.11.2020 seeking

balance amount in relation to 3+3 class rooms, however,

respondent No.3 did not release the amounts. The petitioner

made several representations to the respondent No.3

requesting to release the remaining 25% of the amounts i.e.,

SN,J Wp_31008_2023

Rs.13,17,722/- (54,80,222-41,62,500 = 13,17,722), but the

respondent No.3 did not consider the same. Later, the

petitioner raised complaint before the Prajavani through

online portal dated 30.01.2023 to which the DEO & Ex-Officio,

DPO, TS, Nizamabad made a representation to the respondent

No.3 stating that admittedly 25% of amount is not yet

released from SPO as requested by the petitioner and the

same is falling due for release of balance funds from SPO,

Hyderabad and instructed the respondent No.3 to release the

balance funds at the earliest through its proceedings

No.Lr.No.762/C2/TSS/223 dated 04.07.2023, however, till

today, the amounts were not released by the respondent

No.3. Aggrieved by the same, the present writ petition is

filed.

4. Counter affidavit has been filed on behalf of

respondent Nos.5 and 6 and paragraph Nos.5 and 6 of

the said counter reads as under:

"5. It is submitted that the petitioner has completed the construction of 06 class rooms at ZPHS (Boys), Armoor in phase wise manner. As per the valuation certificate issued by the Executive Engineer, Telangana State education and Welfare Infrastructure Development Corporation Office (TSEWIDC) SS Division, Nizamabad basing on the work progress the

SN,J Wp_31008_2023

amounts of Rs.51,85,044/- has been released to the petitioner in 12 installments so far.

6. The claim of the petitioner for release of additional amount of Rs.13,17,722/- is beyond the contract and the estimated cost of work. Even according to the handover letter issued by respondent No.3, this respondent is liable to pay Rs.51,85,044/- only and the said amount is accordingly paid to the petitioner as per the assured terms, the claim of the petitioner is frivolous and not supported by any terms under the contract. The entire transaction is arising under contract between the parties and the writ petition is not maintainable for such claims and the same is liable to be dismissed. The present writ petition is filed for illegal gains and the respondent No.5 to 6 are not authorized to pay any amounts to the petition over and above the sanctioned works and amount."

5. Counter affidavit has been filed on behalf of

respondent Nos.3 to 5 and paragraph Nos.5 and 17 of

the said counter reads as under:

"5. The 5th respondent herein i.e., the Commissioner and Director of School Education and Ex-officio State Project Director, SSA, Telangana has issued orders for construction of (6) additional Class Rooms in dilapidated class rooms of Zilla Praishad high School, Armoor (Boys) with an estimated cost of Rs.55.50 lakhs (Rs. Fifty five lakhs and fifty thousand only) vide Lr.Rc.No.258/SSA/CW/Dilapidated ACRs/2017-18, dated 29.08.2017 to the 2nd respondent Corporation. The Chief Engineer of the respondent Corporation has accorded technical sanction to take up the construction work (G+1) namely, Ground Floor and 1st floor with an estimated cost of Rs.55.50 lakhs for constructions of (8) Class rooms with stair case within the same unit cost, since

SN,J Wp_31008_2023

the original sanction was accorded for construction of (6) six Class rooms on ground floor only. But the Chief Engineer of the respondent Corporation has approved G+1 Structure with (8) Class rooms i.e., Four (4) rooms on ground floor + 4 rooms on 1st floor by meeting the expenditure from the savings of basement level cost. The 3rd respondent after processing the matter technically entrusted the construction work to the School Management Committee (SMC) consisting of Head Master as Convener and representatives from the Parents Committees Chairman and members as per the SSA norms. The 3rd respondent has concluded an Agreement Armoor vide agreement No.76/2017-18, dated 28.02.2018. From time to time, basing on the progress of construction work, the SMC has submitted requisitions for issue of valuation certificate for release of role of 3rd respondent herein is very limited to the extent stated above. As per the information available on record, the final bill in respect of above mentioned work, has been released to the SMC by the 5th respondent vide Proc.No.357/SSA/CW/2020-21, dated 28.11.2022. AS such, an amount of Rs.53,50,845/-

including statutory deductions to a tune of Rs.2,84,345/- has been paid by the 5th respondent to the extent of value of work done to the SMC, ZPHS (Boys), Armoor.

17. In reply to para 16 of the writ affidavit, it is respectfully submitted that as already submitted in para (5) of this counter affidavit, once the agreement is concluded by the respondent corporation with the School rd Management Committee and the 3 respondent has issued validation certificates for payment of amount to the subject construction work, the 3rd respondent or other respondents are not concerned with the plea(s) of the petitioner. In fact, against the administrative sanction for construction of additional class rooms in the place dilapidated class rooms in the ZPHS, Armoor, against the approved amount of Rs.55.50 lakhs, an amount of Rs.53,50845/-

SN,J Wp_31008_2023

(Rupees fifty three lakhs, fifty thousand, eight hundred and forty five only) including statutory deductions to a tune of Rs.2,84,345/- has been paid by the 5th respondent to the extent of value of work done to the SMC, ZPHS (Boys), Armoor."

6. PERUSED THE RECORD.

7. Learned counsel appearing on behalf of the respondents

submits that the claim of the petitioner pertains to two more

class rooms with estimated cost of Rs.12.48 lakhs whereas

the learned counsel for the petitioner drawn attention of this

Court to the proceedings dated 17.06.2023 and contends that

the claim of the petitioner does not pertain to two more class

rooms with estimated cost of Rs.12.48 lakhs and it only

pertains to due amount of the petitioner as projected in the

proceedings dated 17.06.2023 of the Head mistress, Zilla

Parishad High School, Armoor, and the relevant portion of the

said proceedings reads as under:

"I submit that the amount of Rs.41,62,500/- has already paid to the contractor which was received by this school of that since 13.11.2017 the school has not received any funds to pay the remaining balance amount of 25% to the contractor, so the same is fell due to him."

8. This Court opines that the disputed question's of

fact cannot be gone into under Article 226 of the

Constitution of India in the Division Bench of the Apex

SN,J Wp_31008_2023

Court in a judgment dated 20.04.2021 reported in

(2021) 6 SCC 771 in M/s. Radhakrishnan Industries Vs.

State of Himachal Pradesh, referred to Whirlpool

Corporation Vs. Registrar of Trade Marks (reported in

(1998) 8 SCC 1) and further the said view had been

reiterated by a Full Bench of the Apex Court (3 Judges)

in a judgment reported in (2021) SCC Online SC page

801 in Magadh Sugar and Energy Limited Vs. State of

Bihar and Others dated 24.09.2021 and in the said

judgment it is observed at para 28 as under:-

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a

SN,J Wp_31008_2023

writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

In the present clause (v) of the aforesaid

judgment applies.

The present case falls under Clause No.8 of the

Agreement entered into by the petitioner and the respondents

herein. The petitioner, however, vide memo dated 06.01.2024

brings on record the representation of the petitioner dated

30.01.2024 whereunder the petitioner had put forth his

grievance to the District Collector.

9. Clause No.8 of the agreement entered into by the

petitioner and the respondents herein pertains to

SN,J Wp_31008_2023

dispute settlement and the Clause No.8 of the said

agreement reads as follows:

"DISPUTE SETTLEMENT:

If over the works any so dispute arises between the two parties relating to any aspects of this agreement the parties shall first attempt to settle the dispute through mutual and amicable consolation. If the dispute is not settled through such consolation, the matter may be referred for arbitration to the district Collector/Deputy Commissioner of the District."

10. Learned counsel for the petitioner submits that as per

Clause No.8 of the agreement, the petitioner had filed

representation dated 30.01.2023 which has even been

acknowledged by the office of the respondent No.7-District

Collector, Nizamabad. Though the office of the District

Collector, Nizamabad received the said representation dated

30.01.2023, however, no action had been initiated on the

same as on date, hence the District Collector could be

directed to consider the representation of the petitioner in

accordance to law, within a reasonable period.

11. Taking into consideration the aforesaid facts and

circumstances of the case, and the Judgment of the