Gujarat High Court
Saiyazmohammad Gulabmohammad Bagwan vs Commissioner Of Municipalities on 20 September, 2021
Bench: R.M.Chhaya, Biren Vaishnav
C/LPA/134/2020 ORDER DATED: 20/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 134 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 21352 of 2019
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 134 of 2020
==========================================================
SAIYAZMOHAMMAD GULABMOHAMMAD BAGWAN
Versus
COMMISSIONER OF MUNICIPALITIES
==========================================================
Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1
MR.TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1,2,3,4
for the Respondent(s) No.5
==========================================================
CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 20/09/2021
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE R.M.CHHAYA)
1. Heard Mr. N.K. Majmudar, learned counsel for the appellant and Mr. Tirthraj Pandya, learned AGP for the respondent - State authorities on advance copy.
2. By way of this intra-Court appeal under Clause 15 of the Letters Patent, the appellant - original petitioner is challenging the order dated 05.12.2019 passed by the learned Single Judge in Special Civil Application No.21352 of 2019.
Page 1 of 6 Downloaded on : Sun Jan 16 16:25:59 IST 2022
C/LPA/134/2020 ORDER DATED: 20/09/2021
3. 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.
4. 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.
5. 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. Page 2 of 6 Downloaded on : Sun Jan 16 16:25:59 IST 2022
C/LPA/134/2020 ORDER DATED: 20/09/2021
6. With the aforesaid grounds, it is contended by Mr. Majmudar, learned counsel for the appellant that the appeal requires consideration.
7. Per contra, Mr. Tirthraj Pandya, learned AGP has submitted that the learned Single Judge has rightly not entertained the petition.
8. No other and further submissions are made by the learned advocates for the parties.
9. Before reverting to the submissions made, it is appropriate to reproduce prayers in terms of paragraph No.10 of writ petition i.e. SCA No.21352 of 2019:
"(A) Admit this petition.
(B) Issue appropriate writ, order or direction and be pleased to direct the respondent authorities to release/pay the amount of Rs.15.57,601/- being the outstanding amount of work undertaken by the petitioner in connection with the Tender ID No.262801 and the respondent authorities may kindly be further directed to pay the remaining amount of Rs.15.57,601/-, and the same may kindly be ordered to be paid with 24% interest w.e.f. 24/5/2018 and the respondents may kindly be further directed to pay the amount of Rs.15.57,601/- with the aforesaid 24% interest w.e.f. 24/5/2018 and till the actual payment is being made the interest @ 24% may kindly be ordered to be added in the principal amount of Rs.84,98,972/-;Page 3 of 6 Downloaded on : Sun Jan 16 16:25:59 IST 2022
C/LPA/134/2020 ORDER DATED: 20/09/2021
ALTERNATIVELY
Be pleased to issue appropriate writ, order or directions and be pleased to direct the respondent authorities to consider and decide the applications/representations dated 20/6/2018, 5/9/2018, 1/12/2018, 21/2/2019, 14/3/2019, 19/7/2019 and 5/8/2019 as expeditiously as possible;
(D) grant interim relief and by way of interim order be pleased to direct the respondent authorities to immediately release the payment of Rs.15,57,601/- with 24% interest w.e.f. 24.5.2018 till the actual payment is made, pending admission and final disposal of this petition."
10. The bare reading of the prayer prayed for in Paragraph No.10(B) indicates that it is for release of the payment / recovery of outstanding amount of Rs.15,57,601/- with 24% interest from 24.5.2018 till the date of actual payment.
11. Even the prayer prayed for in Paragraph No.10(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.
Page 4 of 6 Downloaded on : Sun Jan 16 16:25:59 IST 2022
C/LPA/134/2020 ORDER DATED: 20/09/2021
12. 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.
13. Learned Single Judge while examining the contentions raised by the respective parties has candidly observed in Paragraph No.3 of the order dated 05.12.2019 passed in Special Civil Application No.21352 of 2019 which reads as under:
"3. 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 of the petition)."
14. 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.
Page 5 of 6 Downloaded on : Sun Jan 16 16:25:59 IST 2022
C/LPA/134/2020 ORDER DATED: 20/09/2021
15. 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.
(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J) (BIREN VAISHNAV, J) ANKIT SHAH Page 6 of 6 Downloaded on : Sun Jan 16 16:25:59 IST 2022