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2015 DIGILAW 109 (MAN)

S. N. Pavei v. State of Manipur and Ors.

2015-08-20

KH.NOBIN SINGH, L.K.MOHAPATRA

body2015
JUDGMENT The appellant, who was the petitioner in WP(C)No. 32 of 2014, has filed this Writ Appeal challenging the order of the learned Single Judge dated 15.12.2014 dismissing his writ petition. 2. The appellant, a First Class Government Contractor, was assigned with the job of execution of a work ( KIP ‘L-Earth works’ (SH:- Providing retaining Wall on the non-inspection side canal bund of Right Side Main Canal from RD 12,885.00m to RD 12,945.00m). The work order was issued on 10.9.2007. The petitioner-appellant claims to have completed the work. The bill amount having not been paid, it appears, he had approached this Court in WP(C) No.787 of 2012 and this Court disposed of the writ petition directing the State respondents to verify the claim of the petitioner-appellant in terms of the Full Bench decision of the Gauhati High Court in the case of LS Punii Vs. State of Manipur & Ors in WP(C) No. 2278/2008 disposed of on 29.9.2008. In compliance with the said order, the impugned order was passed on 2nd Dec.2013 by the Chief Engineer, IFCD Manipur rejecting the claim of the petitioner-appellant. Challenging the said order dt. 2.12.2013 passed by the Chief Engineer, the appellant preferred WP(C)No. 32 of 2014 before this Court and the learned Single Judge dismissed the writ petition basically on two grounds. The first ground of dismissal is that the case involves disputed question of facts which would require evidence and such exercise cannot be done in a writ petition filed under Art. 226 of the Constitution of India. The second ground of dismissal is existence of an Arbitration clause in the agreement and therefore availability of an alternative remedy to the petitioner appellant. 3. Shri M. Devananda, learned counsel appearing for the appellant drew attention of the Court to documents attached to the writ petition and submitted that the appellant had completed the work and Measurement Book clearly indicates completion of such work. It was further contended by the learned counsel for the appellant that in the liability statement prepared by the Department as in July, 2012 the petitioner whose name appears was entitled to the amount indicated therein and therefore such amount indicated in the liability statement annexed to the writ petition as Annexure-D/4 is not in dispute and could be directed by the learned Single Judge for payment. 4. Shri Y. Nirmolchand and Mrs Th. 4. Shri Y. Nirmolchand and Mrs Th. Sobhana Devi, learned counsel appearing for the respondents submitted that after the first writ petition filed by the writ petitioner was disposed of as per direction contained therein, verification was made and it was found that the petitioner has not submitted completion report till date. The works are in progress and time extension is required but contractor has not applied. Some photographs have been attached to the counter affidavit filed on behalf of the State respondents in this appeal to show that though the petitioner was required to execute the work, he has not completed the work. Apart from the above, it was further contended by the learned counsel for the respondents that there is an arbitration clause in the Agreement and it is open for the petitioner to invoke the arbitration clause to establish his claim. 5. There is no dispute that the appellant had been entrusted with the execution of above work and claims to have executed the work. The Measurement Book shows that the work had been completed. However, on verification it was found that the work was in progress and the appellant had not applied for extension of time to complete the work. In view of the above pointed by the Department in its impugned order dt. 2.12.2013 passed by the Chief Engineer, it appears a serious dispute has been raised as to whether the appellant had actually executed and completed the work. Therefore, the learned Single Judge was right in taking a view that such disputed question can only be decided by adducing evidence which is not permissible in a writ petition filed under Art.226 of the Constitution of India. The learned Single Judge was also justified in holding that there being a Arbitration clause, the appellant could invoke the same to establish his claim. In this connection, it was contended by the learned counsel for the petitioner-appellant that availability of an alternative remedy is not an absolute bar for filing the writ petition and reliance was placed by him on some decisions of the Apex Court specially the case of (i) ABL International Ltd. & Anr vs. Export Credit Guarantee Corporation of India Ltd. & Ors reported in (2004) 3 SCC 553 (ii) State of H.P. & Ors Vs. Gujarat Ambuja Cement Ltd. & Anr reported in (2005) 6 SCC 499 . Gujarat Ambuja Cement Ltd. & Anr reported in (2005) 6 SCC 499 . On reading of the above two decisions, we find that only when a disputed question of fact can be decided on the basis of interpretation of certain admitted documents, alternative remedy may not be a complete bar, but where such disputed question of fact requires evidence to be adduced, such exercise cannot be undertaken in a writ petition filed under Art. 226 of the Constitution of India. Therefore, we find no infirmity in the finding of the learned Single Judge. 6. However, we find that the Measurement Book clearly indicates the work had been completed. Admittedly the verification was done long time after the work was completed. In course of verification, the work was found incomplete. In our opinion since verification was done after long lapse of time and the work was mainly earth work, before coming to the conclusion as to whether the appellant is entitled to the amount claimed, an opportunity should have been given to him to remain present at the time of verification. This aspect of the matter has not been considered by the learned Single Judge. It is also not known as to whether this issue was raised before the learned Single Judge or not. We are, therefore of the view that the impugned order passed by the Chief Engineer dt. 2.12.2013 should be set aside and a fresh order should be passed by the Chief Engineer after giving an opportunity to the appellant to put forward his case with regard to the stand taken by the Department. 7. We accordingly allow the writ appeal, set aside the impugned order dt. 2.12.2013 and direct the Chief Engineer, I& FC Department, Manipur to serve a copy of the shortcomings found in course of the verification on the appellant giving him a month’s time to submit reply and after consideration of such reply, pass a fresh order as to whether the appellant is entitled to the claim or not. If, after consideration of the reply of the appellant, the claim is rejected, the appellant can invoke the Arbitration clause if permissible in accordance with the terms of the Agreement and law. Consequently the impugned judgment is also set aside. Writ Appeal is disposed of.