Mrigen Barbarah vs Assam State Electricity Board and Others

Biplab Kumar Sharma, J—Heard Mr. B.K. Bhattacharjee, learned counsel for the petitioner. Also heard Mr. D. Nath, learned standing

counsel, APDCL. I have also heard Mr. A. Kakati, learned counsel representing the respondent Nos. 4 and 6. By means of this writ petition, the

petitioner seeks to challenge the Annexure-E tender notification published in the issue of the Assam Tribune dated 18th December, 2013. The

petitioner has also made a prayer for directing the respondents (without specifying which respondent) to pay the bill amount as indicated in

paragraph 9. For a ready reference, the impugned tender notification and so also paragraph 9 of the writ petition are reproduced below:-

Tender notification

Bhel invites offer from reputed/interested bidders for the job of Balance Civil & Structural job on Main Plant, Balance of Plant including Cooling

Tower and Non-Plant Buildings, Misc. civil work etc. of 100 MW gas based CCPP at Namrup, Dibrugarh, Assam, Bidders may download

Tender Documents along with other details from websites: www.bhel.com & www. jantermanter.com/CPP Portal or purchase Tender Document

from Subcontracts Dept. between 14:00 to 16:00 hrs on any working day by remitting requisite Tender Cost (Rs. 10,000/-) in the form of DD

(Drawn in favour of Bharat Heavy Electricals Limited). All corrigenda, addenda, amendments, time extensions, clarifications, etc. to the tender

shall be published in the said websites only. Bidders should regularly visit websites to keep themselves updated. Following schedule of tendering

may please be noted.

That the petitioner begs to state that in the process of selecting local contractor, the name of the petitioner came first and he was contacted by

the Respondent No. 7 on behalf of the other Respondents with the proposal for execution of the works as per the specifications provided for the

same. Having found the proposal of the Respondent No. 7 acceptable, the petitioner accepted the same sometime in December, 2012 and on

request, he immediately started the work and completed about 35% of the work by October, 2013 under the supervision of the Respondent No.

As per the terms of the agreement executed between the Respondent No. 7 and the petitioner, the payments against the works completed was

to be released within 15 days from the date of the bill against completed works.

As stated in the writ petition (para-graph-3), sometime in the late 2012, the respondent No. 7, a private Company, had approached the

petitioner for execution of works of civil, structural, architectural and building works etc. at Namrup in the district of Dibrugarh and expressed its

interest for awarding contract to the petitioner for execution of the work of civil nature. The petitioner himself has stated in the said paragraph of

the writ petition that the contract was sought to be awarded to him as a sub-contractor. A copy of the agreement executed by and between the

parties has been annexed to the writ petition as Annexure-A.

According to the petitioner, the respondent No. 7 after obtaining the particular contract from the respondent No. 4 had given the sub-contract

to the petitioner in respect of the works of civil nature. Thus, as submitted by Mr. Bhattacharjee, learned counsel for the petitioner, irrespective of

the fact that the contract was entered into with the respondent No. 7 only, but all other respondents, who are party respondents to this proceeding

are also responsible for payment of work the petitioner has allegedly completed comprising of 35% of the works.

In the counter affidavit filed by the respondent No. 4, the plea taken is that the petitioner having not entered into any contract with the

respondent No. 4, the petitioner cannot question the impugned NIT that has been issued for execution of the balance work. It has also been

contended that apart from the fact that the respondent No. 7 is a private body, if the said body had entered into any contract with the petitioner,

the respondent No. 4 is not responsible for the same. In paragraphs 9, 10, 11 and 15 of the counter affidavit, the respondent No. 4 has stated

thus:-

That with regard to the statement made in Para. 3 of the Writ Petition, the deponent states that the Respondent No. 4 does not have any

knowledge about the execution of any agreement with the Petitioner and the Respondent No. 7 or any execution of the Agreement as enclosed as

ANNEXURE-A; prior to the termination of the agreement vide letter dated 22.11.2013 with the Respondent No. 6. It is further submitted that the

Petitioner was executing the work of Respondent No. 7 as a Sub-Contractor without any consent, approval or agreement/Contract with the

Respondent No. 4.

That with regard to the statement made in Para. 4 of the Writ Petition, the deponent denies the statement made in this paragraph for want of

knowledge. It is submitted that the Petitioner was executing the work of Respondent No. 7 as a Sub-Contractor without any consent, approval of

agreement/Contract with fee Respondent No. 4.

That with regard to the statement made in Para. 5-6 of the Writ Petition, the deponent denies the statement made in this paragraph for want of

knowledge as the Respondent No. 4 was not a party to the alleged agreement. The deponent states that the allegation made in those paragraphs is

a dispute between the Petitioner and the Respondent No. 7 and further the Respondent No. 4 has no role to play in the said transaction.

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That with regard to the statement made in Para. 12 of the Writ Petition the deponent states that after terminating the contract vide letter dated

22.11.2013 with the Respondent No. 6, the Respondent No-4 has issued a Tender Notification dated 01.01.2014 for executing the balance Civil

and Structural Work of 100 MW Gas based CCPP at Namrup. It is further submitted that the Respondent No. 4 has within its right has

terminated the Contract with the Respondent No. 6 due to non-performance of the Contract within specified time.

During the course of hearing of the writ petition, it has been brought to the notice of the Court that it is the respondent No. 2, i.e. APDCL,

which had issued a tender notice in respect of some works and the respondent Nos. 3 and 4 being successful was awarded with the contract.

Thereafter, the respondent Nos. 3 and 4 entrusted the respondent No. 6 to do a part of the contractual works said to be civil in nature and in turn,

the respondent No. 6 gave the work to the respondent No. 7 and in turn, the respondent No. 7 entrusted the work to the petitioner as sub-

contractor. It has also been brought to the notice of this Court that the respondent Nos. 3 and 4 have already terminated the contract awarded to

the respondent No. 6 on 22nd November, 2013 and before that the respondent No. 6 had terminated the contract awarded to the respondent

No. 7 on 27th September, 2013. At present, an arbitration proceeding is going on in respect of the dispute involved in between the respondent

Nos. 6 and 7.

Mr. Bhattacharjee, learned counsel for the petitioner drawing my attention to the affidavit-in-reply and the additional affidavit filed by the

petitioner, has contended that the fact that the petitioner was a sub-contractor of respondent No. 7 was very much known to the respondent Nos.

3 and 4 and as such, they are liable to pay the amount to which the petitioner is entitled to. In this connection, he has referred to the minutes of the

meeting held amongst the parties in which the petitioner was also present.

On this Mr. Kakati, learned counsel representing the respondent Nos. 4 and 6 submits that merely because in one or two meetings discussions

were made regarding execution of the works and payment etc, same by itself cannot lead to the inference that the respondent Nos. 3 and 4 were

aware of execution of any contract agreement between the petitioner and the respondent No. 7. He further submits that presence of the petitioner

in the meetings cannot bind the respondent Nos. 3 and 4 to make payment for the alleged execution of works for the respondent No. 7.

Mr. Kakati, learned counsel representing the respondent Nos. 4 and 6 has also submitted that the respondent No. 7 being a private body and in

absence of any agreement of the petitioner and the respondent Nos. 3 and 4 and even otherwise also the writ Court cannot issue any direction for

making payment to which the petitioner is allegedly entitled to. He further submits that the writ petition involving disputed questions of fact is also

not maintainable. In this connection he has placed reliance on the decision of the Apex Court in State of U.P. and others Vs. Bridge and Roof Co.

(India) Ltd., (1996) 6 AD 621 : AIR 1996 SC 3515 : (1996) 7 JT 395 : (1996) 6 SCALE 168 : (1996) 6 SCC 22 : (1996) 4 SCR 762 Supp :

(1997) 104 STC 78 , in which the Apex Court held thus:-

Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions

of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and

conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as

provided by the contract of for civil court, as the case may be. Whether any amount is due to the respondent from the appellant-Government under

the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not,

are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writ petition, viz., to restrain the Government

from deducting particular amount from the writ petitioner''s bill(s) was not a prayer which could be granted by the High court under Article 226.

Indeed, the High Court has not granted the said prayer.

There is yet another substantial reason for not entertaining the writ petition. The contract in question contains a clause providing inter alia for

settlement of disputes by reference to arbitration (Clause 67 of the contract). The arbitrators can decide both questions of fact as well as questions

of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should

not follow and adopt that remedy and invoke the extraordinary jurisdiction of the High Court under Article 226. Tree existence of an effective

alternative remedy - in this case, provided in the contract itself - is a good ground for the court to decline to exercise its extraordinary jurisdiction

under Article 226. The said Article was not meant to supplant the existing remedies at law but only to supplement them in certain well-recognised

situations. As pointed out above, the prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was not

seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory obligation cast upon the appellants. Indeed, the very

resort to Article 226 whether for issuance of mandamus or any other writ, order or direction - was misconceived for the reasons mentioned supra.

I have given my anxious consideration to the submissions advanced by the learned counsel appearing for the parties and have also gone through

the entire materials on record.

As discussed above, it was the respondent No. 2, which had issued the parent NIT and the respondent Nos. 3 and 4 being successful, the

contract was awarded to it. However, there is no disclosure of this fact in the writ petition. The civil work, which was involved in the said tender

work, was entrusted to the respondent No. 6 by the respondent No. 3, who in turn entrusted the same to the respondent No. 7. The respondent

No. 7 also engaged the petitioner as sub-contractor to execute the civil work. Thus, if any dispute has arisen, it is strictly in between the petitioner

and the respondent No. 7. In the agreement that was executed by and between the petitioner and the respondent No. 7, there is a specific clause

providing that incase of any dispute, the same shall be referred to the Managing Director of the respondent No. 7, whose decision shall be final and

binding on both the parties. The impugned NIT dated 18th December, 2013 was issued by the respondent No. 3 in respect of the works involved

indicated in the NIT, which is said to be the balance work of the contractual work in question.

There is no dispute that the respondent No. 7 is not an authority within the meaning of Article 12 of the Constitution of India Merely because it

is the assertion of the petitioner that the respondent Nos. 3 and 4 had knowledge of awarding the sub-contract to the petitioner by the respondent

No. 7, this Court exercising writ jurisdiction cannot saddle the respondent Nos. 3 and 4 with the liability to make any payment for the alleged

execution of the works by the petitioner (35%), for the respondent No. 7, as indicated in paragraph 9 of the writ petition. However, if the

petitioner is entitled to receive any amount from the respondent No. 7, it is for the said respondent to do the needful in the matter. However, as has

been brought to the notice of this Court, presently an arbitration proceeding is going on, between the respondent Nos. 6 and 7.

Above apart, although it is the assertion of the petitioner that he has executed 35% of the works entrusted by the respondent No. 7 but in

absence of any measuring rod or anything brought on record to substantiate the claim and even otherwise also this Court exercising writ jurisdiction

cannot issue any direction for payment of the amount to the petitioner by the respondent Nos. 3 and 4. It will be entirely up to the respondent No.

7 to deal with the matter as per the agreement that was executed by and between the parties. The petitioner shall also be entitled to pursue such

remedy as may be available in law against the said respondent No. 7. With the above observation, the writ petition stands disposed of, without,

however, any order as to costs.