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2025 DIGILAW 375 (HP)

Rajender Kumar v. State of Himachal Pradesh

2025-03-13

AJAY MOHAN GOEL

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JUDGMENT : (Ajay Mohan Goel, J.) By way of this writ petition, the petitioner has approached this Court with the prayer that in the course of the execution of the contract work allotted to him by the respondent-State, as there are certain amounts due to him, which are not being paid by the respondent-State, therefore, a mandamus be issued directing the respondents to pay due and admissible amount to the petitioner, as mentioned in the writ petition. 2. Learned counsel for the petitioner submits that as the petitioner has executed the works in accordance with the contract that has been entered into between him and the respondents and as he is demanding the payment of the amount, which is due to him pursuant to the execution of work carried out by him and as the claimed amount is undisputed, therefore, the petition be allowed and a mandamus be issued, as prayed for. 3. On the other hand, learned Additional Advocate General on instructions has taken a preliminary objection with regard to the maintainability of the writ petition. He submits that neither the respondents admit that the amount as is being claimed by the petitioner is payable to the petitioners, nor such issues can be determined in writ jurisdiction. As per him, the issues raised in the writ petition primarily are issues which require determination on the basis of the evidence that may be led by the parties in support of their respective contentions, as to whether any amount at all is due to the petitioner and if yes, then how much?, therefore, these issues cannot be decided by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. He further submits that these highly disputed question of facts require adjudication in a Civil Court or by way of Arbitration. 4. On the other hand, learned counsel for the petitioner by placing reliance on the judgments of the Hon’ble Supreme Court of India in (2004) 3 SCC, 553, titled ABL International Ltd. & anr. Vs. Export Credit Guarantee Corporation of India Ltd. & Ors. as well as Civil Appeal No. 6741 of 2024, titled Subodh Kumar Singh Rathour Vs. The Chief Executive Officer & Ors., submitted that in the light of these adjudications, the prayer of the petitioner can be granted to him. Vs. Export Credit Guarantee Corporation of India Ltd. & Ors. as well as Civil Appeal No. 6741 of 2024, titled Subodh Kumar Singh Rathour Vs. The Chief Executive Officer & Ors., submitted that in the light of these adjudications, the prayer of the petitioner can be granted to him. He also referred to the judgments of the Hon’ble Division Bench of this Court in CWP No. 6039 of 2023, titled Deepak Manta Vs. State of H.P. & others. and CWP No.7942 of 2021, titled Krishan Kumar Vs. State of H.P. & others, to substantiate his contentions. 5. Having heard learned counsel for the petitioner as well as learned Additional Advocate General and having gone through the averments made in the writ petition, this Court is of the considered view that the disputes as are being raised in this writ petition cannot be decided by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 6. In terms of the law laid down by the Hon’ble Supreme Court of India, as stands reiterated in the two judgments cited by the learned counsel for the petitioner, the High Court in exercise of its writ jurisdiction can go into a dispute arising out of a contract, in which one of the contracting party is either a State or instrumentality of the State. But then those are the circumstances wherein, the instrumentality of the State acts in an arbitrary manner, in a matter of contract. 7. In the present case, the grievance of the petitioner is that on account of the work having been carried out by him, certain amounts are due to him from the respondents and as the same are not being paid, therefore, the present petition is maintainable. 8. As already observed by me hereinabove, as the learned Additional Advocate General on instructions has clearly submitted that the respondents do not admit that the amounts claimed are payable to the petitioner and further as this Court is of the considered view that these issues should be best left over to be decided by a Civil Court wherein the parties can lead evidence to substantiate their contentions, this Court in exercise of its writ jurisdiction, should not entertain writ petition, which is nothing but recovery suit in the guise of petition filed under Article 226 of the Constitution of India. 9. 9. Besides the fact that there are disputed questions which need to be determined by leading evidence, another issue is that when every other litigant for the purpose of filing a suit for recovery has to approach a Civil Court and to append ad-valorem Court fee, no exception can be given to the petitioner who is a Government Contractor and who is claiming amounts in lacs and crores by affixing Court fee of Rs. 250/- only. As far as the judgments of the Hon’ble Division Bench relied upon by the learned counsel for the petitioner are concerned, perusal thereof demonstrates that in those cases, the respondent-State had not denied the amount as claimed, but here learned Additional Advocate General has seriously disputed the amounts in question. At this stage, learned Additional Advocate General further submits that in this case, the petitioner has entered into a contract, which has Arbitration Clause. 10. In the light of the above observations, as this Court is of the considered view that the petitioner cannot claim recovery in petition filed under Article 226 of the Constitution of India as the course open to him is to file Civil Suits/invoke Arbitration Clause, this writ petition is dismissed but with the observation that the petitioner, if so advised, may approach the appropriate fora for the recovery of amount in question. Pending miscellaneous application(s), if any, also stand disposed of accordingly.