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Shankar Singh v. U.P. P.W.D. Thru' Secy. & Others - WRIT - C No. 38057 of 2004  RD-AH 7114 (7 December 2005)
Court No. 37
Civil Misc. Writ Petition No. 38057 of 2004
Shanker Singh Vs. U.P. Public Works Department and others.
Hon. R. K. Agrawal, J.
Hon. (Mrs.) Saroj Bala, J.
By virtue of the present writ petition, under Article 226 of the Constitution of India, the petitioner seeks a writ, order or direction in the nature of mandamus against the respondent no. 3 to pay the amount of Rs.1,84,793=00, 1,57,707=00, 1,21,283=00, 1,39,091=00, 1,59,598=00, 18,453=00, 18,457=00, 18,457=00, 18,457=00, 18,110=00, 19,416=00, 19,326=00, 18,446=00, 19,425=00, 19,317=00 and 60,441=00 under contract no. 90/AE(N), 67/AE(N), 47/AE(N), 127/AE(N), 125/AE(N), 1405/7MG, 1407/7MG, 253/7MG, 254/7MG, 1/BK-37/AE(N), 21BK-37/AE(N), 3/BK-37/AE(N), 4/BK-37/AE(N), 5/BK-37/AE(N), 13/BK-37/AE(N), 104/BK-37/AE(N) respectively (Annexure No. 2 of the writ petition).
The petitioner also seeks a writ, order or direction in the nature of mandamus against the respondents to pay interest on the aforesaid amounts at the rate of 18% from the date of issuance of the bills till the date of actual payment.
The facts giving rise to the writ petition are as hereunder:
The petitioner an approved contractor with the U.P. Public Works Department was awarded contract by the U.P. Public Works Department for repairing of roads in the nature of patch work etc. within the district Ballia. The petitioner executed the contract orders no. 901/AE(N), 67/AE(N), 47/AE(N), 127/AE(N), 125/AE(N)/1/BK-37/AE(N), 2 BK 37/AE(N), 3 B.K. 37 AE(N), 4 BK 37/AE(N), 5 BK-37 AE(N), 13 B.K./AE(N) and 104/BK-37/AE(N) (Annexure No. 1 (A1-A to AI-K) to the writ petition). The petitioner carried out and completed the work under the aforesaid work orders within the time frame and to the full satisfaction of the respondent authorities. After completion, work under the contract performed by the petitioner was evaluated and assessed and found to be satisfactory by respondent no. 4. The certificates of satisfactory completion of work under the work orders are Annexure-2 (A2-A to A2-K) to the writ petition. The bills for payment of amounts for the work performed were prepared and passed by the concerned authority but the payment under bills is yet to be made. According to the petitioner the amount payable under the bills is being withheld by the respondent no. 3 illegally and arbitrarily, though they admit their liability to pay.
In counter affidavit of Abhai Kumar Rai, Assistant Engineer, Provincial Division P.W.D., Ballia, has been filed on behalf of respondents 2 to 4. The contention of the respondents is that as per condition no. 5 of the contract bond no. 47/AE(4) dated 19.8.2000 and no. 67/AE(N) dated 4.11.2000 the payment of contractors is to be made after the fund is made available. The Executive Engineer, Provincial Division P.W.D., Ballia vide letter no. 1585/12A dated 2.8.2004 (Annexure-CA-1) made a request to the Superintending Engineer, Ballia Circle P.W.D., Ballia demanding requisite fund for making payment to the contractors. The respondents have stated that payment of pending bills of the petitioner would be made immediately on availability of funds.
The petitioner has filed rejoinder affidavit stating that in the agreement bond it was provided that the concerned authority will make payment on the availability of funds but the terms and conditions of the agreement do not grant unlimited period for payment. According to the petitioner the payment was to be made within a reasonable time. The contention of the petitioner is that the respondents are withholding the amounts for the last about five years without any rhyme or reason.
We have heard Sri N.K. Singh, learned counsel for the petitioner and Sri Nand Kishore Singh, learned Standing Counsel appearing on behalf of the respondents and have perused the record of the writ petition.
The learned counsel for the petitioner submitted that the respondents have failed to make payment of the amounts due for a period of more than five years though they admit their liability to make payment. It was argued that the agreement bond though provided that the payment shall be made after receiving the funds yet payment was to be made within a reasonable period, i.e. by the next financial year. The learned counsel urged that the respondents having not disputed their liability but the amounts are being withheld unreasonably, there is no other efficacious alternative remedy except to invoke the jurisdiction of this Court under Article 226 of the Constitution of India.
The learned counsel for the respondents submitted that the remedy under Article 226 of the Constitution of India is not available in the matter relating to the enforcement of contractual obligation.
This fact remains unchallenged that the petitioner carried out and completed the work of repairing of roads within the time frame to the satisfaction of the concerned authorities. The completion of the work was certified and bills were prepared thereafter. Admittedly, the payment of the work performed under contract/work orders no. 90/AE(N), 67/AE(N), 47/AE(N), 127/AE(N), 125/AE(N), 1405/7MG, 1407/7MG, 253/7MG, 254/7MG, 1/BK-37/AE(N), 21BK-37/AE(N), 3/BK-37/AE(N), 4/BK-37/AE(N), 5/BK-37/AE(N), 13/BK-37/AE(N), 104/BK-37/AE(N) respectively (Annexure No. 2 of the writ petition) has not been made by respondent no. 3 to the petitioner. The work orders related to the financial years 2000-01.
The respondents having failed to make payment for the work carried out by the petitioner under various work orders issued in the year 2000-01, the petitioner seeks the redressal of his grievance by way of a writ petition under Article 226 of the Constitution of India. The Apex Court in the case of Harbanslal Sahnia and another Versus Indian Oil Corporation and others (2003) 2 SCC 107 has held that in an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights: (ii) where there is failure of principles of natural justice, or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
In the case of Binny Ltd. and another Versus V. Sadasivan and others 2005 (3) AWC 2806 (SC) the Apex Court has held as follows:
" A writ of mandamus or the remedy under Article 226 of the Constitution of India is pre-eminently a public law remedy and is not generally available as a remedy against private wrong. It is used for enforcement of various rights of the public or to compel the public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties."
It was further held:
"When that contractual power is being used for public purpose, it is certainly amenable to judicial review. The power must be used for lawful purposes and not unreasonably."
In the case of Sanjana M. Wig (Ms) Versus Hindustan Petroleum Corporation Ltd. (2005) 8 SCC 242 while dealing with the maintainability of a writ petition, the Apex Court has held as below:
"Access to justice by way of public law remedy would not be denied when a lis involves public law character or involves a question arising out of public law functions on the part of the respondents, and when the forum chosen by the parties would not be in a position to grant appropriate relief."
In the instant case no disputed question of fact arising out of a contract qua contact is involved as the respondents have admitted their liability to pay the outstanding amounts. The respondents are withholding the amounts for the last about five years though they admit their liability to make payment. In the given circumstances no alternative remedy is available to the petitioner except by way of writ of mandamus directing the respondents to make payment.
It was argued on behalf of the respondents that the petitioner had agreed that the payment will be made after the availability of the funds. There is no grouse or complaint about the quality of work performed by the petitioner under various work orders. The work orders relate to the financial years 2000-01. In the normal course the payment of the work performed under various contracts should have been made in the next financial year, i.e. 2001-02, It is beyond comprehension that the allocation of the budget which is made in each financial year would have taken each a long time.
The learned counsel for the petitioner argued that the respondents having withheld the amounts for an unreasonable period the petitioner is entitled to interest at the rate of 18% on the amounts due. On the contrary, the learned counsel for the respondents argued that the petitioner has agreed for payment to be made as and when the funds were made available by the Government, the petitioner is not entitled for interest.
The respondents, for the first time, demanded budget from Superintending Engineer, P.W.D., Ballia vide letter dated 2.8.2004. There is no derth of funds with the State Government. Of course, sincere efforts on the part of respondents for procuring budget are lacking in the present case. The terms and conditions of agreement to make payment on availability of fund cannot be stretched to unlimited period.
Having given our thoughtful consideration to the various pleas raised by the learned counsel for the parties, we find that the petitioner became entitled to receive the amounts due on satisfactory completion of works under the various contract. The work having been completed in the year 2000-01 the payment of bills should have been made within the financial year 2000-01 or at the most in the next financial year 2001-02. The respondents having failed to perform their statutory obligation under the various contracts by making payment within the reasonable time, the petitioner is to be compensated by awarding interest. On the face of these facts, we are inclined to award interest at the rate of 10% per annum on the outstanding amounts under various contracts/bills from the year 2002 till the payment is made.
In view of the forgoing discussions we allow the writ petition. The respondent no. 3 is directed to make payment of the outstanding amounts within a period of one month from the date of production of a certified copy of this order with interest at the rate of 10% per annum from the year 2002 till the payment is made Dated : 7.12.2005
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