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2000 DIGILAW 446 (PAT)

Kumar Bishwa Nath Singh v. State Of Bihar

2000-03-19

M.Y.EQBAL

body2000
Judgment 1. Heard Mr. Anil Kumar Sinha, learned Sr. counsel for the petitioner and Mrs. Rity Kumar, learned JC to CA. 2. Mr. Sinha relying upon the decisions of the Apex Court in the case of M/s. Sawarmal Rajendra Prasad V/s. PCCL (Civil Appeal No. 27/2000) and M/s. Hindusthan Petroleum Corporation Ltd. V/s. Doly Das (1999) 4 SCC 450 and a Bench decision of this Court in the case of Ram Chandra Singh V/s. State of Bihar, (2000) 2 Pat LJR 173, made a forceful submission that a writ of mandamus must be issued directing the respondents to immediately and forthwith pay the amount of bill for the construction work done by the petitioner under three different agreements. 3. Before coming to the facts of the case, it would be useful to go through the decisions referred by the learned counsel hereinabove. In M/s. Sawarmal Rajendra Prasads case (supra), the appellant was allotted a contract for transportation of coal. After carrying out the work of transportation the appellant submitted bill for an amount of Rs. 10,56,000.00 . The respondent company constituted a committee to examine the bill and accordingly the committee found that the payment dues to the appellant is Rs. 900600.00 . During the pendency of the writ application, which was filed by the appellant, the respondent-company admitted the claim of the appellant and in the counter filed to the writ petition also agreed to settle the claim of the appellant for the said amount. Learned Single Judge in his order noticed that the Court does not normally grant relief in case of payment of contractual dues but since the respondent No. 1 acknowledged and admitted the claim of the appellant, a direction was issued to pay the said amount. However, the order of the learned single Judge was set aside in appeal by the Division Bench of the High Court on the ground that even if the liability had been admitted the Court had no jurisdiction to issue any writ of mandamus. In these facts, when the matter went to the Apex Court, their Lordships held that where there is no dispute about the liability and the payment has been wrongfully withheld, a mandamus can be issued and the party need not be relegated to take recourse to other remedy. 4. In these facts, when the matter went to the Apex Court, their Lordships held that where there is no dispute about the liability and the payment has been wrongfully withheld, a mandamus can be issued and the party need not be relegated to take recourse to other remedy. 4. In the case of M/s. Hindustan Petroleum Corporation Ltd. ( 1999 (4) SCC 450 ) (supra) the fact of the case was that when the Government took over of Caltex India Ltd. pursuant to the enactment of Caltex (Acquisition of Shares of Caltex Oil Refining (India) Ltd. and of the Undertakings in India of Caltex (India) Ltd.) Act, 1977, dispute was raised by the parties to the lease agreement under the provisions of Sec. 7(1) of the said Act with regard to the effect of the expiry of the period of lease. When the matter went to the Supreme Court the Petroleum company took the stand, inter alia, that invocation of jurisdiction of the High Court in contractual matter, even one having a statutory flavour, was an abuse of the process of the Court. Their Lordships rejecting the stand taken by the company, held as under :- "In the absence of constitutional or statutory rights being involved a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against the State or to avoid contractual liability arising thereto. In the absence of any statutory right Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise. In the present case, the appellants have sought to exercise their powers under Sec. 7 of the Act and, therefore, though the other consequences may be contractual in nature, the exercise of the right being under a statute, it cannot be said that the respondent could not approach the writ Court." 5. In the case of Ram Chandra Singh (2000 (2) Pat LJR 173) (supra) a Bench of this Court considered a question whether appropriate writ can be issued against the respondent for payment of contractual dues. In that case the petitioner, a civil contractor, did certain erection work and submitted bill for Rs. 60,894.00 , against which a sum of Rs. 48,000.00 was paid to the petitioner. In that case the petitioner, a civil contractor, did certain erection work and submitted bill for Rs. 60,894.00 , against which a sum of Rs. 48,000.00 was paid to the petitioner. In the counter affidavit filed by the respondent-State the claim of the petitioner was not disputed and it was found that in several correspondences made by the officers of the Government inter se, they have shown their inability to pay the dues because of paucity of fund. In the facts of that case this Court issued a direction for release of the amount. 6. Now I shall deal with the facts of the case. The petitioner was awarded contract under three different agreements for repairing of Daltonganj-Hariharganj road and other roads in the year 1996. The petitioners case is that after completion of the work he submitted three different bills, those bills were entered in the measurement book mentioning the amounts of bill. In para 7 of the writ petition the petitioner has made the following statement :- "That besides this, the security deposit amount of Rs. 9,790.00 in agreement No. 75, F-2, Rs. 3,977.00 , in Agreement No. 19, F-2 Rs. 2349.00 and in agreement No. 35, F-2 all of the year 1995-96 have been deducted from the final bills for which the petitioner is equally entitled as since passing of the bills more than 6 months have elapsed which used to be kept with the authorities concerned as security for the satisfaction of the work done by the contractor." 7. However, it is alleged that the petitioner requested the respondents on several occasions but the same was avoided on some pretext or other as well as on the ground of non-availability of fund. Although, in para 8 of the writ petition it is stated that the Executive Engineer by letter dated 18-3-98 expressed that steps are being taken for making available the allotment for payment to the petitioner. Curiously enough, copy of that letter has not been filed and annexed alongwith the writ application. In para 9 of the writ application it is stated that on several occasions the petitioner personally requested the concerned respondent and submitted representation for payment of his dues but no heed was paid by the authority. Curiously enough, copy of that letter has not been filed and annexed alongwith the writ application. In para 9 of the writ application it is stated that on several occasions the petitioner personally requested the concerned respondent and submitted representation for payment of his dues but no heed was paid by the authority. It is further stated by the petitioner that he has filed last representation on 2-5-2000 requesting the respondent to clear the bill which is pending since 1998. 8. It is, therefore, manifestly clear from the averment made in the writ petition that there is nothing on record to show that the respondents have admitted and acknowledged the dues claimed by the petitioner rather it has admitted that certain security deposit under different agreements have been illegally deducted from the final bills for which the petitioner claims to be entitled to get back the security amount. It is not a case where there is a clear admission from the side of the respondents in respect of the dues payable to the petitioner. 9. I am, therefore, of the definite opinion that the decisions relied upon by the learned counsel for the petitioner do not apply in the facts of the present case. Prima facie, there is nothing to show that respondents specifically stated and acknowledged the dues and expressed their inability to pay the same because of paucity or non-availability of fund. In such circumstances, it would not be proper for this Court to issue any writ of mandamus directing the respondents to fulfil their contractual obligation, which is not statutory in nature and that too when there is a dispute raised by the petitioner with regard to deduction of security amount from the bills. It would be desirable that the petitioner may pursue his representation or avail other remedy available under the law. 10. For the reason aforesaid, this writ application is dismissed. It goes without saying that if dues are admitted there should not be any reason why the same shall not be paid to the petitioner.Application dismissed.