Tarun Child And Women Development Society v. State of U. P.
2016-07-20
MAHESH CHANDRA TRIPATHI, V.K.SHUKLA
body2016
DigiLaw.ai
JUDGMENT Heard Sri Girijesh Tiwari, learned counsel for the petitioners and learned Standing Counsel. 2. Tarun Child and Women Development Society through its Manager/Secretary is before this Court with request to issue writ in the nature of mandamus directing the respondents to ensure the due payment of the petitioners for the month of July 2014 to December 2014 for supply of hot cooked food under ICDS scheme alongwith interest, within stipulated period. 3. Learned Standing Counsel relies upon a Division Bench of this Court in Sant Lal Yadav Vs. State of U.P. and 3 others Writ C No. 37639 of 2014 dismissed on 23.07.2014 taking a view that writ petition under Article 226 of the Constitution of India for satisfying money claim arising out of a contract would not be maintainable. 4. Sri Girijesh Tiwari, Advocate, on the other hand, has produced before us another Division Bench judgment of this Court in case of M/s Jai Ambey Construction Vs. U.P. Jal Nigam & others reported in 2014 (7) ADJ 266 (DB). As far as said judgment in question is concerned, it has proceeded to take note of another judgment of this Court in case of Ashok Kumar and others Vs. State of U.P. and others, 2013 (9) ADJ 448 that proceeds on premises that if such a case arises the payment has to be ensured and a writ petition would be maintainable for the said purpose. In the case of M/s Jai Ambey Construction Vs. U.P. Jal Nigam & others Division Bench of this Court has proceeded to make mention that prima facie there is conflicting opinions of the Division Benches of this Court which may require to be resolved by an authoritative pronouncement of a larger Bench in some appropriate case and in the said case on the statement of counsel for the Jal Nigam payment in question has been directed to be made. 5. Here in the present case, what we find from the record in question that in reference to supply of hot cooked food that are to be effectuated a remedial forum has been provided for to move for arbitration under clause-32 of the agreement provided there is a dispute. The remedial forum is provided for by way of arbitration before the District Magistrate or by a committee nominated by the District Magistrate and the decision so taken is to be binding upon the parties concerned.
The remedial forum is provided for by way of arbitration before the District Magistrate or by a committee nominated by the District Magistrate and the decision so taken is to be binding upon the parties concerned. 6. Here in the present case, we also find that the petitioners are contending that they have effectuated supply of hot cooked food under ICDS scheme but payment in question has not at all been ensured. It has been contended that the Director, Bal Vikas Seva and Pushthahar, Lucknow on 21.05.2015 has directed to all the District Programme Officers to ensure such payment and in spite of the said directives payment in question has not at all been paid to the petitioners. 7. As per terms & condition of contract grievance of the petitioners is that amount in question has not all been paid. The rights of the parties are governed by the terms and conditions of the contract and contractor is complaining non-payment, the remedy, in normal course of business, is to get the dispute resolved by the arbitrator by invoking clause 32 of the agreement at page 47 of the paper book in question. 8. Once there is a remedial forum provided for getting the dispute adjudicated by the Arbitrator and herein the amount in question has not all been paid, then in our considered opinion, the petitioners should invoke arbitration clause and Arbitrator would answer all the issues raised and even in cases of delayed payment can suitably redress. However, we leave it open to the petitioner to invoke clause 32 of the agreement in question, thereafter it is expected that the matter would be dealt and decided in accordance with law. With these observations, present writ petition is disposed of.