Judgment ( 1. ) SHORT payment of bills in connection with the work of ?hiring of equipment for overburden Removal (Blast Hole Drilling, Blasting, excavation, Loading, Hauling and Dumping of broken rocks/soil/earth by mechanical means) at Jayant Opencast Project of Northern Coalfields limited? is the center theme of present writ petition. ( 2. ) THE relevant facts in nutshell are, that petitioner, a private company, incorporated under the Companies Act, 1956, in pursuance to the NIT for the work of ?hiring of Equipment for overburden Removal (Blast Hole Drilling, Blasting, Excavation, Loading, Hauling and Dumping of broken rocks/soil/earth by mechanical means) at Jayant Opencast Project of Northern Coalfields Limited for 1,80,00,000 bank cubic meter (B. C. M) to be executed during 3 years, submitted its bid on 4. 4. 2006 for the work in question, for the contract price of Rs. 132,02,79,880. 00 on a weighted average rate of Rs. 73. 35 per B. C. M, inclusive of all taxes, levies, duties etc. The bid of the petitioner was accepted on 24. 8. 2006 and the term of letter of acceptance, performance security of Rs. 6,60,14,000/-by way of bank Guarantee having validity period from 23. 9. 2006 to 22. 12. 2009 was submitted on 23. 9. 2006. The work order was issued on 8. 12. 2006 and the contract was signed on 19. 12. 2006; whereas the site was handed over to the petitioner on 30. 12. 2006. Clause 5 of the contract stipulates the term of payment enunciating therein that the payment will be made for the work done in 15 days before the following 15 days against progressive bills duly certified by surveyor/mine Authority of NCL. For fortnightly bills payments are made either on survey measurements on the basis of progressive trip average. The monthly bills were made on survey measurements, payments to be made as per slab-wise rates after retaining service tax @ 12. 24 % of the billed amount. Clause 8 stipulates that NCL to pay the successful bidder in consideration of the execution, completion and maintenance in accordance with the terms and conditions of the contract. ( 3. ) THE case of the petitioner is that despite of the clear terms of contract certain amount is being deducted on the count of drilling, blasting amount for a loose (bulk) quantity which was removed from the working area in the course of work performance. ( 3. ) THE case of the petitioner is that despite of the clear terms of contract certain amount is being deducted on the count of drilling, blasting amount for a loose (bulk) quantity which was removed from the working area in the course of work performance. It is urged that 2. 77 lakh BCM has been paid at a rate Rs. 57. 90 per BCM instead of Rs. 73. 35 per B. C. M and 1,00,116 BCM has not been paid, thereby instead of an amount of rs. 2,77,42,217/-relatable to the quantity excavated, a much lesser amount of Rs. 1,44,33,447. Being aggrieved, the petitioner, in pursuant to clause 16 of conditions of contract approached the authority for settlement of disputes; however, when no settlement was arrived at the petitioner preferred a writ petition No. 16177/2007, which was disposed of with a direction to the competent authority to decide the dispute/claim after affording an opportunity of hearing to the petitioner. It is stated by the petitioner that though the decision has been taken but the respondents misdirected themselves by referring to certain provisions not applicable in the matter which was referred. ( 4. ) THE petitioner accordingly challenges the action on the ground that the respondents all times were fully aware about the nature of the strata on which overburden removal was to be carried out for which the NIT was issued and the weighted average per BCM of overhead burden as dealt with by the petitioner in terms of agreement is @ Rs. 73. 35 per BCM as per weight average rate, hence no justification for any reduced amount. The respondents are not justified in applying formulae like swelling factor and reduction on the count of loose (bulk) quantity. The action is / unreasonable and unfair. The strata being well known to the parties to the agreement the respondent cannot rescile from the same. The relief accordingly is sought for a direction to the respondents to make payments without reducing any amount ( 5. ) THE respondents on their turn have raised objection as to maintainability of the petition. It is stated that though clause 16 of the agreement does contemplate redressal of dispute through Court of law, however, the same, it is urged, does mean a redressal of dispute through petition under Article 226 of the Constitution of India. ) THE respondents on their turn have raised objection as to maintainability of the petition. It is stated that though clause 16 of the agreement does contemplate redressal of dispute through Court of law, however, the same, it is urged, does mean a redressal of dispute through petition under Article 226 of the Constitution of India. It is stated further that the respondents have acted within the four corners of the agreement. It is urged that the rates provided Rs. 73. 35 per BCM was having breakup of three components which includes 4. 41 % for drilling, 17. 77% for blasting and 77. 82 % for excavation as based on the formula agreed in the contract. It is further contended that site which was handed over to the petitioner on over burden lies loosely which does not require any drilling or blasting but only requires excavation of over-burden. It is stated that a meeting was called on 20. 9. 2006; wherein, the representative of the petitioner and the respondent participated. In the said meeting it was held that initial survey will be conducted in the presence of the representatives of the petitioner and the rehandling and the blasted material in the outsourcing patch will be quantified and shown in the initial level survey plan and therefore the rules for the same, i. e. , rehandling and blasted material portion would be as per the guidelines given by the respondents. It is, further urged that in pursuance to the aforesaid decision a pre level survey plan and check measurement plan was conducted and preferred in presence of petitioner?s representative indicating loose/blasted quantity. It is contended that the work thereafter commenced from 31. 10. 2006 and the work order was issued on 8. 12. 2006 and on 19. 12. 2006 contract was signed. The respondents further contend that clause 5 of the General Terms and Conditions of contract provided for the extent of deviation/variation in quantities and the pricing thereof, which has been strictly adhered to and since the part portion of the work in question was loose/blasted therefore, a committee was constituted to find out the rate for that portion. It is contended that the committee while taking into consideration the swell factor as 1. 36 and after applying the formula for lead variation and price escalation in terms of agreement found the weightaged average rate of Rs. 51. It is contended that the committee while taking into consideration the swell factor as 1. 36 and after applying the formula for lead variation and price escalation in terms of agreement found the weightaged average rate of Rs. 51. 90 per BCM It is urged that in a proceeding held in compliance to the order passed in w. P. 16177/2007 the petitioner was heard and the decision has been taken which, as contended, is in terms of the contract. ( 6. ) HAVING adverted to the respective submissions in extenso the question which crops up for consideration whether in absence of any breach of statutory obligation, the petitioner can maintain a petition under article 226 for executionof the right arising out of a private contract and moreso when the respondents have denied their liability. ( 7. ) INDISPUTABLY the contract in respect of work of Hiring of Equipment for overburden Removal (Blast Hole Drilling, Blasting, Excavation, Loading, hauling and Dumping of broken rocks/soil/earth by mechanical means) at jayant Opencast Project of Northern Coalfields Limited? existed between the petitioner and the respondents. Clause 5 of the General Conditions of contract stipulates deviations/variations in quantities providing therein the extent and pricing thereof. It is also not in dispute that a meeting for outsourcing of overburden removal at Jayant Project was held on 20. 9. 2006, wherein, the representative of the petitioner and that of respondents participated wherein it was decided that initial level survey and boundary fixation for the outsourcing patch for the first year will be done by the surveyor of Jayant Project and that of Contractor and that after handing over the first year patch, initial level survey for the second and third year will be done by the surveyor of Jayant Project and contractor so that the full patch will be handed over to the contractor as early as possible. It was also decided in the said meeting that the rate for rehandling and blasted material portion in the outsourcing patch will be as per guidelines given by headquarter NCL. ( 8. ) CLAUSE 16 of the General conditions of contract stipulated that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution and if such dispute arises between the contractor and the department, effort shall be made first to settle the dispute at the company level. ( 8. ) CLAUSE 16 of the General conditions of contract stipulated that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution and if such dispute arises between the contractor and the department, effort shall be made first to settle the dispute at the company level. It is stipulated that the contractor should make request in writing to the Engineer-in-Charge for settlement of such disputes/claims within 30 days of arising of the cause of dispute/claim failing which no dispute claims of the contractor shall be entertained by the company. The said clause further makes a provision that if differences still persist, the settlement of the dispute with the Government Agnecies shall be dealt with as per the guidelines issued by Ministry of Finance, Government of india in this regard. In case of parties other than Government Agencies, the redressal of the dispute may be sought in the Court of law. It is also not disputed that the weightaged average rate would be out of total value divided by total quantity. It is further evident from the record that in pursuance to the decision taken in the meeting held on 20. 9. 2006 the committee was constituted by order dated 22. 1. 2007 to arrive at the rates for re-handling and blasted material portion in the outsorcing patch will be as per the guidelines given by headquarter NCL. The said committee after meeting on various occasion submitted its final recommendation on 23. 4. 2007. Further more in a decision taken on 25. 1. 2008 in compliance to the order passed by this Court in W. P. No. 16177/2007 it was observed that the Bank cubic Meter (BCM) has been defined as ?material measured solid? and accordingly it was suggested to convert loose material into solid and make payment. The committee took into account ?swellfactor? for conversion of loose to solid as per the P. R. provisions and accordingly the payments were made to the petitioner in respect of the work done by the petitioner which is not acceptable to the petitioner because as per petitioner the same is in contravention to the terms of contract entered into between the parties. The question, therefore, is, can such a dispute be gone into in a petition under Article 226 of the Constitution of India? ( 9. The question, therefore, is, can such a dispute be gone into in a petition under Article 226 of the Constitution of India? ( 9. ) IN catena of cases decided by the Supreme Court in the matter of contract when no statutory violation is established, the aggrieved party should refer to the remedy available under the common law and interference in the writ petition is not permissible. To note few in the case of World Tel Net and another v. Union of India and others [ (2001) 10 SCC 513 , their lordships of the Supreme Court were pleased to observe in paragraph 2: ?2. The petitioner made a claim for refund of a sum of eighty-three and odd lakhs of rupees together with interest at the rate of 21 % p. a. payable by Doordarshan. The writ petition filed by the petitioner under Article 226 was dismissed by a Division Bench of the High Court of Delhi by entering into the merits of the rival contentions. In our view the High Court ought not to have entered upon findings on the contentions issues in a proceedings under Article 226 of the Constitution. Instead the parties should have been resolved in a civil litigation. The claim made is basically one arising from contractual obligations. Time and again this court has said that such disputes should not be resolved through the summary proceeding conducted under Article 226 of the Constitution. We, therefore, vacate all such findings made against the appellant in the impugned judgment. ? similarly in the case of State of Bihar and others vs. Jain plastics and Chemicals Ltd. : [ (2002) 1 SCC 216 ] their Lordships were pleased to observe in paragraph 3 in the following terms: ?3. Settled law-writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the court of competent jurisdiction for alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not to invoke the writ jurisdiction of the High court. Under the law, it was open to the respondent to approach the court of competent jurisdiction for alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not to invoke the writ jurisdiction of the High court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226. ? in the case of Hindustan Steel Works Construction Ltd. and another vs. Hindustan Steel Works Construction Ltd. Employees union [ (2005) (6) SCC 725] their lordships of the Apex Court were pleased to observe in paragraph 8 in the following terms: ?8. In U. P. State Bridge Corpn. Ltd. v. U. P. Rajya Setu nigam S. Karmachari Sangh it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd. V. Kamlekar shantaram Wadke, Rajasthan SRTC v. Krishna Kand, chandrakant Tukaram Nikam v. Municipal Corpn of ahmedabad and in Scooters India v. Vijai E. V. Eldred. ? in the case of State of U. P. v. Bridge and Roof Co. (India) Ltd. ( AIR 1996 SC 3515 ), it has been held by the Supreme Court that the dispute regarding enforcement of a private contract has to be adjudicated by resorting to the remedy of arbitration, if available or by filing a suit and not by resorting to a remedy under Article 226 of the Constitution of India. ( 10. ) IN the case of Moran M. Baselios Marthoma Mathews II and others vs. State of Kerala and others [ (2007) 6 SCC 517 ] their lordships of the Apex Court were pleased to observe in paragraph 7 as under: ?7 The short question which arises for consideration, in our opinion, is as to whether in a situation of this nature, the high Court should have gone into the rival contentions of the parties. Our answer is ?no?. Our answer is ?no?. There cannot be any doubt whatsoever that prayer for issuance of a writ of mandamus may be granted against the State commanding it to perform its legal duties when it fails an/or neglects to do so. It is, however, another thing that while considering only that aspect of the matter, the Court in the garb of rendering a decision on that limited aspect would go into the disputed question of title and/or interpretation of a judgment of this court wherefor other remedies are not only available but, as noticed hereinbefore, in fact, more than 200 suits, touching one aspect of the matter or the other, are pending in different civil courts. ? ( 11. ) IN the present case nothing has been shown by the petitioner as to the violation of any statutory provision as would call for issuance of mandamus under Article 226 of the constitution. Having thus considered, this Court does not find any substance in the claim put-forth by the petitioner and the same is accordingly dismissed. However, no cost. Needless to say in case the petitioner avails the remedy available under the common law any observations made herein above shall be ignored.