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2022 DIGILAW 28 (JHR)

Sunil Tiwari v. State of Jharkhand

2022-01-05

RAJESH SHANKAR

body2022
JUDGMENT : The case is taken up through Video Conferencing. 2. The present writ petition has been filed for quashing the order as contained in memo No. 189/S. Cell dated 06.10.2020 (Annexure-9 to the writ petition) passed by the respondent No.4 whereby the petitioner’s claim for payment of admitted dues of Rs.26,79,413/- was rejected. Further prayer has been made for issuance of direction upon the respondents to make payment of the said due amount as well as the security amount deposited by the petitioner towards total contract value of Rs.64,17,929/- for construction of the Upgraded High School at Saltua (Chainpur), Daltonganj as per Agreement No. 172 of 2009-10. 3. The factual background of the case, as stated in the writ petition, is that the petitioner was awarded the work for construction of the Upgraded High School at Saltua(Chainpur), Daltonganj. An agreement to that effect was executed between the petitioner and the respondent No.6 on 12.03.2010 vide Agreement No. 172 of 2009-10 and the cost for construction of the said school was estimated as Rs.61,41,559/-. However, the said contract was awarded @ 4.5% higher than the estimated cost of the said building and as such the aggregate value of the contract was fixed to the tune of Rs.64,17,929/-. The petitioner commenced the work and completed the same within the stipulated period as per the terms of the said agreement and out of the total contract value, the petitioner was paid Rs.37,38,507/- only towards running bills and the rest amount remained unpaid. Thereafter, the petitioner represented the respondent No.6 on 26.03.2012 for release of the due amount with further request to hand over the building to the Education Department. However, the said request of the petitioner was not acted upon. On repeated requests of the petitioner, the said building was finally handed over to the respondent No.6 on 11.02.2013. The petitioner represented to the respondent No.6 on 15.04.2015 requesting him to make payment of Rs.26,79,413/-. Thereafter, the respondent No.6 vide letter No. 195 dated 18.05.2015, requested the respondent No.4 to allot fund of Rs.26,79,413/- for making payment to the petitioner. On repeated requests of the petitioner, the said building was finally handed over to the respondent No.6 on 11.02.2013. The petitioner represented to the respondent No.6 on 15.04.2015 requesting him to make payment of Rs.26,79,413/-. Thereafter, the respondent No.6 vide letter No. 195 dated 18.05.2015, requested the respondent No.4 to allot fund of Rs.26,79,413/- for making payment to the petitioner. However, the said due amount was not paid to the petitioner due to which he filed a writ petition before this Court being W.P.(C) No. 3117/2015 for release of due amount which was disposed of vide order dated 30.08.2016 giving liberty to the petitioner to approach the competent authority-the respondent No.4 through the respondent No.6 by filing representation along with the relevant documents with further direction to the competent authority to consider the claim of the petitioner in accordance with law after due scrutiny of the relevant material facts relating to execution of the work in question. However, the said respondent authority did not comply the order dated 30.08.2016 of this Court and as such the petitioner filed Contempt Case (C) No. 239 of 2020. In the meantime, the respondent No.4 passed the impugned order dated 06.10.2020 whereby the petitioner’s claim for payment of aforesaid dues was rejected. The said contempt case was disposed of on 09.10.2020 with a liberty to the petitioner to assail the order dated 06.10.2020 before the appropriate forum. Hence, the present writ petition. 4. Learned counsel for the petitioner submits that once the possession of the building in question was handed over to the respondent No.6 getting satisfied with the work done by the petitioner, subsequent allegation that the construction of the school building was incomplete, is not tenable. It is further submitted that the role of the School Education and Literacy Department, Government of Jharkhand was only to ensure release of required fund to the Building Construction Division, Medininagar Palamau, who had engaged the petitioner for construction of the said school building and on receiving the sanctioned amount/fund, it was the obligation of the respondent No.6 to release the payment in favour of the petitioner. It is an admitted fact that the respondent No.6 was accountable for monitoring the quality of construction made by the contractor/petitioner. It is an admitted fact that the respondent No.6 was accountable for monitoring the quality of construction made by the contractor/petitioner. The respondent No.6 had requested the respondent No.4 on various occasions for sanctioning the aforesaid claim of the petitioner vide its letters dated 18.01.2020, 29.06.2020, 21.07.2020, 07.08.2020 & 11.08.2020 after having fully satisfied with the work executed by the petitioner and therefore the respondent No.4 has no authority to retain the due amount for the work already done by the petitioner on the ground that the same was not done by him as per the terms of the contract. It is further submitted that withholding of the said claim of the petitioner amounts to unjust enrichment. Since the petitioner completed the construction and the building has also been handed over to the concerned department, there is no justification in withholding the said amount, particularly when the petitioner has completed the work by taking loan from bank. 5. On the contrary, learned counsel for the respondents-State submits that the work executed by the petitioner was not found up-to-mark, rather several defects were found in the same and as such his claim was rejected by the respondent No.4 vide the impugned order dated 06.10.2020. If the petitioner feels aggrieved with the order of the respondent No.4, he may approach Civil Court claiming due amount (if any). It is also submitted that several disputed questions of facts are involved in this case and as such the present writ petition is not maintainable. 6. Heard learned counsel for the parties and perused the relevant materials available on record. It appears that in compliance of order dated 30.08.2016 passed by a Bench of this Court, the respondent No.4 has passed the impugned order dated 06.10.2020 observing inter alia that the petitioner constructed the building in question violating the terms and conditions of the agreement. 6. Heard learned counsel for the parties and perused the relevant materials available on record. It appears that in compliance of order dated 30.08.2016 passed by a Bench of this Court, the respondent No.4 has passed the impugned order dated 06.10.2020 observing inter alia that the petitioner constructed the building in question violating the terms and conditions of the agreement. On the basis of the technical and physical enquiry report as well as the available documents, the respondent No.4 has found several infirmities in the work done by the petitioner such as - the first floor of the building was constructed in violation of the departmental order as also the same was not in accordance with the fixed standard of quality, casting of the roof of the first floor was also not as per the fixed standard, parapet wall was not constructed on the roof and the building was unsafe for children and the quality of the construction work of the building in question was low and unsatisfactory. The respondent No.4 while rejecting the petitioner’s claim for payment of due amount, has also recommended for initiation of departmental proceeding against the concerned engineers of the Building Construction Division, Palamau for negligence in performing their duty. 7. It is well settled principle of law that a writ petition is not maintainable where there are serious disputed questions of fact requiring detailed evidence for their determination. Unless there is an exceptional circumstance, the claim for payment of the due amount arising out of contractual obligations should not be entertained by the writ Court as the claim for money can always be made by filing a civil suit. The reason behind it is that the Civil Court being a fact finding court can effectively determine the factual claims of the respective parties. Undoubtedly, a writ can be issued for payment of admitted contractual dues and if there is clinching evidence to suggest that the respondents are liable to pay particular amount which has been retained by them without any cogent reason. In the case in hand, the amount claimed by the petitioner is not an admitted one, rather the same has been seriously disputed by the respondents. The respondent No.4 has not accepted the petitioner’s claim on the ground that the work was not done in accordance with the terms/specifications provided in the agreement. In the case in hand, the amount claimed by the petitioner is not an admitted one, rather the same has been seriously disputed by the respondents. The respondent No.4 has not accepted the petitioner’s claim on the ground that the work was not done in accordance with the terms/specifications provided in the agreement. Moreover, several defects were found in the work executed by the petitioner. The allegations levelled against the petitioner are purely factual in nature which cannot be verified under extraordinary writ jurisdiction of this Court. 8. The present writ petition is accordingly dismissed. 9. The petitioner may however approach appropriate Civil Court raising his claim against the respondents for payment of due amount.