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2014 DIGILAW 51 (MAN)

H. S. Dawner v. State of Manipur

2014-04-24

LAXMI KANTA MOHAPATRA

body2014
JUDGMENT L.K. Mohapatra, Actg. C.J. This is the second journey of the petitioner to this Court. Facts leading to filing of both the writ applications are as follows:- 2. The petitioner was entrusted with execution of certain works by the Executive Engineer, Khuga Canal Division No. 1, IFC Department, Manipur in June, 2008. 3. The claim of the petitioner is that he completed work in the very same year within the stipulated time and final bill was prepared on 10.08.2008. In between 2010 and 2011, liability statement was submitted to the concerned authority. But no payment was made. In March, 2012, petitioner submitted a representation to the Chief Engineer, IFC, Govt. of Manipur for payment of his dues. When the said representation was not acted upon, he filed W.P.(c) No. 465 of 2012 before this Court seeking for a direction to the state respondents for refund of Security Deposit and payment of undisputed bill for the work executed by him. The above writ was disposed of on 10.09.2012 with a direction to the State respondents to consider the claim of the petitioner and pay the undisputed bill after verification. The appeal was preferred against the said order and it was also disposed of on 16.04.2013. In compliance of the order passed by this Court, the Under Secretary, IFC, Govt. of Manipur issued an order dated 23.03.2013 intimating the petitioner therein that he is not entitled to receive any payment for execution of the said work. 4. Mr. M. Devananda, learned counsel appearing for the petitioner drew the attention of the Court to the measurement book annexed to the writ petition and submitted that last page of the measurement book and endorsement has been made by the Executive Engineer that the work has been completed and the petitioner is entitled to Rs. 76,04,935/- (Rupees seventy six lakh four thousand and nine hundred thirty five) only after deduction of Rs. 6,10,038/- (Rupees six lakh ten thousand and thirty eight) only from the value of the work done. This being an undisputed amount, there is no reason on the part of the state respondents to reject the claim of the petitioner and refuse payment of the said admitted amount. 5. A counter affidavit has been filed on behalf of the respondent No. 1 wherein it is stated that petitioner did not complete the work and left it half-way. This being an undisputed amount, there is no reason on the part of the state respondents to reject the claim of the petitioner and refuse payment of the said admitted amount. 5. A counter affidavit has been filed on behalf of the respondent No. 1 wherein it is stated that petitioner did not complete the work and left it half-way. It is also stated in the counter affidavit that in order to comply with the earlier order passed by this Court in W.P.(c) No. 465 of 2012, Executive Engineer was directed to verify and examined the work done by the petitioner without any extraneous consideration. The Executive Engineer after verification submitted a report stating therein that work has not been completed and before completion of the work, preparation of final bill was incorrect and irregular. It is also stated in the counter affidavit that the petitioner not only failed to complete the work but also failed to seek for extension of time to complete the work. With reference to the counter affidavit, Shri Nirmolchand, learned counsel for the respondents submitted that the petitioner had no intention to complete the work and convinced the then officers, got the measurement book and prepared final bill indicating completion of work and payment to be made. Referring to the original measurement book, learned counsel also submitted that interpolation in several pages have been made in order to raise claim. 6. Undisputedly, the petitioner have been entrusted with the work to be executed under Irrigation and Flood Control Department, Manipur. Though he claims to have completed the work in the counter affidavit, it is specifically stated that upon verification of the work at spot, it was found that the petitioner has not completed the work. This becomes a disputed question of facts which cannot be decided in a writ application. The question as to whether work has been completed or not requires evidence to be proved through oral evidence as well as documentary evidence and such exercise cannot be undertaken in a writ application. 7. Though much reliance have been placed by Mr. Devananda on the entry made in the measurement book, I find certain discrepancies in respect of certain entries. 7. Though much reliance have been placed by Mr. Devananda on the entry made in the measurement book, I find certain discrepancies in respect of certain entries. The second page of the measurement book, Xerox copy has been annexed to the writ application shows that the date commencing as per agreement shows 30.06.2008 and date of completion as per agreement is 31.12.2008 as against the date of actual completion, it is written "In progress". When this entry comparing to the entry made in the original measurement book, it is found that the actual date of completion is mentioned in the Original measurement book as 30.09.2008 and it appears that some words have been erased and date of 30.09.2008 was written later on. This itself creates a doubt as to whether the petitioner had completed the work or not. If a doubt is created in the mind of the Court as to whether petitioner had completed the work or not, it will be unsafe to rely on the last entry made in the measurement book which indicates that the petitioner is due to get Rs. 76,04,935/- and this amount appears to have been arrived at after preparation of the final bill. 8. From the agreement, I find that there is an arbitration clause. Since the petitioner has a remedy available to him by invoking the arbitration clause, such disputed question of facts can be decided in an arbitration proceeding. Reference in this connection can be made to a decision of the Supreme Court in the case of Rajasthan State Industrial Development & Investment Corpn. Vs. Diamond & Gem Development Corpn. Ltd. and Anr. Reported in (2013) 5 SCC 488. 9. In view of the above discussion and the judgment of the Apex Court, I am not inclined to grant the relief sought for by the petitioner as remedy is available to him invoking the arbitration clause. Writ application is accordingly dismissed being devoid of merit. However, it is observed that none of the findings or observations made in this judgment shall have bearing in any proceeding that may be undertaken at instance of the petitioner for the purpose of establishing his claim.