M/s Sarveshwari Construction vs State of Jharkhand And Ors

The present writ petition is taken up today through Video conferencing.

The present writ petition has been filed for issuance of direction upon the respondents to pay Rs. 34,69,669/- to the petitioner for executing the

construction work to the extent of 95% of the total allotted work of A-type quarter (one Block of 4 units) for Home Guard Institute at Gumla

(hereinafter referred to as ""the said work"") in the year 2012-13 along with statutory interest.

The learned counsel for the petitioner submits that the said work was allotted to the petitioner vide Agreement No. 2F2 of 2013-14 dated

20.05.2013 and the most of the said work was completed by the petitioner within the stipulated period, however, only a part payment of Rs.

15,00,000/- was released in his favour on 06.08.2013 out of the total agreement value of Rs. 46,49,669/-. The petitioner filed representations dated

26.11.2015 and 19.08.2016 before the respondent no. 5 - the Executive Engineer, Building Construction Department, Government of Jharkhand,

Gumla (copy of which was also served to the respondent nos. 2 to 4), however no action has been taken by the respondents in this regard due to

which the petitioner is facing financial hardship. It is further submitted that the petitioner is ready to complete the rest 5% of the work, subject to

payment of cost of the material and labour at current market rate.

The learned counsel for the respondents submits that the time for completion of the said work was nine months from the date of written order to

commence i.e. from 20.05.2013, however, even after lapse of almost 8 years from the date of execution of the agreement, the entire work in

accordance with the agreement has not been completed. It is further submitted that 5% of the work awarded to the petitioner is still incomplete, hence

completion certificate has not yet been furnished to the petitioner by the Engineer-in-Charge as per the Clause 6 of the said agreement. The

agreement value of the said work was Rs. 46,49,669/-. It is also submitted that as per the measurement book maintained by the respondents, the work

done by the petitioner is for an amount of Rs. 39,85,787/- only, out of which Rs. 15,00,000/- has already been paid to the petitioner on 06.08.2013 and

the rest amount of Rs. 24,85,787/- will be paid to it as soon as the fund is made available to the respondents from the District Commandant , Home

Guard, Gumla which functions under the Department of Home, Jail and Disaster Management, Government of Jharkhand. It is further submitted that

the respondents are unable to calculate and find out the imaginary balance claim of Rs. 34,69,669/- without any document/measurement book or any

other documentary proof instead of admitted amount Rs. 24,85,787/- by the respondents, which is also supported by the measurement book maintained

by them. The respondent no. 5 made various communications to the District Commandant, Home Guard, Gumla so that the due payment to the

petitioner could be made, but till date neither any reply to the said letters has been received nor any action for allotment of fund has been taken by the

Commandant, Home Guard, Gumla. Hence, the admitted amount could not be paid to the petitioner. The petitioner has not completed the said work till

date and due to incomplete work, the handing over of the building has not been accepted by the District Commandant, Home Guard, Gumla and hence,

the petitioner is not entitled to receive any statutory interest as claimed. The petitioner has not approached this Court with a clean hands and has

suppressed the material fact that the time allowed for carrying out construction work was nine months from the date of the written order to

commence the said work i.e., from 20.05.2013, moreover it did not annex the complete copy of agreement with the writ petition, rather only first page

of the agreement has been annexed.

Heard the learned counsel for the parties and perused the materials available on record. The petitioner seeks direction of this Court upon the

respondents to pay its dues to the extent of Rs. 34,69,669/- with interest in connection with the said work. The respondents have contended that the

contract value of the said work was Rs. 46,49,669/- and as per the measurement book, only 95% work has been completed and total due amount to

the said extent of work figures to Rs. 39,85,787/-, out of which Rs. 15,00,000/- has already been paid to the petitioner and as such, only Rs. 24,85,787/-

is due to be paid to the petitioner. It has further been contented that the said dues amount could not be paid to the petitioner since the fund has not

been released by the District Commandant, Home Guard, Gumla.

The Hon'ble Supreme Court in the case of ""Punjab National Bank & Ors. Vs. Atmanand Singh & Ors."" reported in 2020 SCC OnLine SC 433,

after discussing several earlier judgments has summarized the law dealing with the scope of intervention by the writ court in the matter involving

money claim as under:

The appellant-Bank has rightly invited our attention to the Constitution Bench decision of this Court in ThansinghNathmal (supra). In paragraph 7,

the Court dealt with the scope of jurisdiction of the High Court under Article 226 of the Constitution in the following words:

... The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any

restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not

exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-

imposed limitations.

Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute.

Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being

unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which

demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a

court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon

an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in

another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under

Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the

machinery so set up.

(emphasis supplied) Similarly, another Constitution Bench decision in Suganmal (supra) dealt with the scope of jurisdiction under Article 226 of the

Constitution. In paragraph 6 of the said decision, the Court observed thus:

On the first point, we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred

under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not

ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally

collected the money as a tax. ... We do not find any good reason to extend this principle and therefore hold that no petition for the issue of a writ of

mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right.

(emphasis supplied) And again, in paragraph 9, the Court observed as follows:

We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained.

The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the

claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction.

(emphasis supplied) In Smt. GunwantKaur (supra) relied upon by the respondent No. 1, in paragraph 14, the Court observed thus:--

The High Court observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were

admitted could only be determined after an affidavit in reply was filed by the State. The High Court, however, proceeded to dismiss the petition in

limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to

relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law.

Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises

questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of

the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine

will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to

be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it

would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

(emphasis supplied) We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which

may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the relief

sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties

to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High

Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law.

In the case of ""Joshi Technologies International Inc. Vs. Union of India & Ors."" reported in (2015) 7 SCC 728, the Hon'ble Supreme Court has held

as under:

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.

In the aforesaid case, the Hon'ble Supreme Court after citing various earlier judicial pronouncements has held that a writ petition cannot be

maintained merely for the reason that refund of money is claimed by the petitioner against the State, as the claim for money can always be made by

filing a civil suit. When refund of money is claimed by filing a writ petition and the question of facts as raised is so complex in nature which requires

production of documents and leading of evidences, in such case the High Court must relegate the parties to remedy of a civil suit. However, in case of

admitted facts, the High Court may grant relief to the petitioner by examining the case on its own merit.

In the case in hand, the respondents in their counter affidavit dated 15.05.2019 have admitted the dues of the petitioner to the extent of Rs.

24,85,787/- as stated in paragraph-9 of the said counter affidavit, however, they have shown inability to pay the same to the petitioner on the ground

that fund has not been generated by the District Commandant, Home Guard, Gumla. I am of the view that the admitted amount cannot be denied on

the ground of non-release of fund. Thus, the respondents are directed to release the admitted amount of Rs. 24,85,787/- in favour of the petitioner

within two months from the date of receipt/production of a copy of this order, failing which they will be liable to pay interest @ 6% per annum over

the said amount from the date of filing of the writ petition till the actual payment. So far as the rest of the claim is concerned, the admissibility of the

same has been disputed by the respondents. Admittedly, the work has not been completed by the petitioner and now, it claims the current market rate

of materials and labour cost for completion of the same, which has been objected by the respondents. The handing over of the possession of the said

building has also been disputed by the respondents.

In view of the aforesaid factual and legal position, I do not find any ground to issue direction to the respondents to release the disputed amount as

claimed by the petitioner, however, the petitioner is at liberty to avail civil remedy for recovery of the said dues as well as interest, if so advised.

The writ petition is accordingly disposed of with aforesaid observation and direction.