Saiyazmohammad Gulabmohammad Bagwan vs Director Of Municipalities

R.M.Chhaya, J

Heard Mr. N.K. Majmudar, learned counsel for the appellant and Mr. Tirthraj Pandya, learned AGP for the respondent - State authorities on advance copy.

By way of this intra-Court appeal under Clause 15 of the Letters Patent, the appellant - original petitioner is challenging the order dated 1.10.2019 passed by the learned Single Judge in Special Civil Application No.15746 of 2019.

Mr. N.K. Majmudar, learned counsel appearing for the petitioner contended that the work as per the tender has already been executed by the appellant and no disputes have been raised by the respondent - Deesa Municipality.

3.1. Mr. Majmudar, learned counsel for the appellant submitted that even though representations have been made, the respondent Municipality has sat tight over the matter. It was further contended that some payment is already made which according to Mr. Majmudar indicates that no disputes are there. Referring to Clause 30 of the tender document, it was also contended by Mr. Majmudar that an arbitration clause for settlement of dispute does exist in the contract between the appellant as a contractor of the Deesa Municipality.

From aforesaid ground, it is therefore contended by Mr. Majmudar appearing for the appellant that the learned Single Judge has committed an error by not entertaining the petition on the ground of alternative efficacious remedy.

Mr. Majmudar has also contended that though as per the settled law, the prayer prayed for may not strictly fall within the jurisdiction of this Court under Article 226 of the Constitution of India, still, however, as there is no dispute, this Court may at-least issue notice in the matter.

With the aforesaid grounds, it is contended by Mr. Majmudar, learned counsel for the appellant that the appeal requires consideration.

Per contra, Mr. Tirthraj Pandya, learned AGP has submitted that the learned Single Judge has rightly not entertained the petition.

No other and further submissions are made by the learned advocates for the parties.

Before reverting to the submissions made, it is appropriate to reproduce prayers in terms of paragraph No.8 of writ petition i.e. SCA No.15746 of 2019:

"(A) Admit / Allow this petition.

(B) Issue appropriate writ, order or direction and be pleased to direct the respondent authorities including Deesa Nagarpalika to release the payment of outstanding amount of Rs.56.78,577.00 and the same may kindly be paid with 24% interest from 24.05.2018 till actual payment is made by the respondent Deesa Nagarpalika, in the interest of justice;

(C) Issue appropriate writ, order or direction and be pleased to quash and set aside the action of the respondent authority including Deesa Nagarpalika of withholding the payment of outstanding dues of Rs.56,78,577.00 and the action of the Nagarpalika of not releasing the outstanding payment / amount in respect of the work undertaken by the petitioner which was completed in May, 2018 and action of the respondent authorities may kindly be declared as illegal, irrational, illogical, discriminatory, violative of Article 14 of the Constitution of India;

(D) Grant interim relief and by way of interim order be pleased to direct the respondent authorities to immediately release the outstanding amount of Rs.56,78,577.00 with 24% interest w.e.f. 24.5.2018 till the actual payment is made, pending admission and final disposal of this petition."

The bare reading of the prayer prayed for in Paragraph No.8(B) indicates that it is for release of the payment / recovery of outstanding amount of Rs.56,78,577-00 with 24% interest from 24.5.2018 till the date of actual payment.

Even the prayer prayed for in Paragraph No.8(C) though couched as if there is violation of Article 14 of the Constitution of India in fact, it is for the enforcement of an agreement and, therefore, arises out of contract between the appellant and Deesa Nagarpalika. The prayers prayed for are in the realm of recovery of outstanding dues and in opinion of this Court, such dispute cannot be decided in exercise of powers under Article 226 of the Constitution of India.

In addition to that the contact between the appellant and Deesa Nagarpalika also provides for Arbitration Clause as even contended by Mr. Majmudar, learned advocate for the appellant.

Learned Single Judge while examining the contentions raised by the respective parties has candidly observed in Paragraph No.9 of the order dated 1.10.2019 passed in Special Civil Application No.15746 of 2019 which reads as under:

"9. In view of the aforesaid facts and on the perusal of the documents produced on record by the petitioner being the terms and conditions of the tender documents. It appears that dispute between the petitioner and the respondents is arising out of the contract awarded to the petitioner and, therefore, no writ would be maintainable for the alleged breach of contract and / or non payment of contractual amount to the petitioner for the work carried out as per the terms and conditions of the contract. The petitioner has an alternative efficacious remedy either by way of filing Civil Suit and / or initiating arbitration proceedings as per the terms of the contract as provided in Clause 30 of the general conditions of contract for settlement of disputes and arbitration (as at page No.153 to 155 of the petition)."

We are in total agreement with the findings given by the learned Single Judge and the petition in the form of a Writ Petition under Article 226 would not be maintainable.

It will be open for the appellant to take recourse to other remedies available under the law. On this count alone, the appeal deserves to be dismissed and is hereby dismissed. However, there shall be no order as to costs.