Andhra Pradesh High Court - Amravati
G.Janardhana Rao, vs State Of Andhra Pradesh, on 28 August, 2024
APHC010516532016
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3330]
(Special Original Jurisdiction)
WEDNESDAY,THE TWENTY EIGHTH DAY OF AUGUST
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO
WRIT PETITION NO: 4310/2016
Between:
G.Janardhana Rao, ...PETITIONER
AND
State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. PONNADA SREE VYAS Counsel for the Respondent(S):
1. GP FOR FORESTS (AP) 2 The Court made the following order:-
This Writ Petition is filed under Article 226 of Constitution of India for the following relief/s:-
"...pleased to issue an order writ or direction more particularly in the nature of WRIT OF MANDAMUS declaring the action of the respondents authorities in not paying the money as per the revised estimates and M-book recordings and issuance of proceedings issued by the 2nd respondent vide Rc.No.3349/2010/A4 dated 3-11-2015 is illegal, arbitrary, unjust and violative of Article 14, 21, 19(1)(g) and 300-A Constitution of India and consequently set aside the proceedings vide Rc.No.3349/2010/A4 dated 3-11- 2015 issued by the 2nd respondent while directing the respondents to clear the bills as per the work and revised estimates and extra work with regards to construction of frontline staff (G+1 model) quarters at Kothuru of Pathapatnam Range, Srikakulam District and pass such other order or orders..."
2. The facts asserted in the affidavit filed in support of the Writ Petition are that the petitioner was a registered contractor of Government of Andhra Pradesh for the last fifteen years in Visakhapatnam, Srikakulam and Vizianagaram Districts. The 4th respondent invited tenders for construction of Frontline Staff (G+1) Model Quarters at Kothuru of Pathapatnam Range in Srikakulam District. The petitioner herein is the highest bidder in the said tender for the subject work for a construction value of Rs.37,81,797/-. Accordingly, entered into a nominal agreement vide Agreement No.934/2010/TO(1), dated 21.05.2011.
3
3. The present Writ Petition is filed to set aside the proceedings of the 4th respondent dated 03.11.2015, wherein the 4th respondent has issued the impugned proceedings directing the petitioner to remit an amount of Rs.81,932/- and consequently prayed to direct the respondents to clear the bills as per the work and revised estimates and extra work with regard to the construction of Front-Line Staff (G+1) Model Quarters.
4. And it is asserted in the Writ Affidavit that he was entrusted with the work of construction of G+1 Model Quarters at Kothauru of Patapatnam range, Srikakulam District. While executing the work, he found that the land is water clogging area having big trees and he was removed the same and he had done extra work to fill the water clogging area and cutting of trees and he constructed 15' pillars, plinth beams, and he completed basement construction and he spent an amount of Rs.3,00,000/- towards construction and the authorities again changed the design for safety reasons and the same was informed to the petitioner and requested to demolish the previous structure and assured that compensation will be paid for the new construction and also extension of time for construction. And the respondents are issued notice after completion of these slabs but they have ignored the promise to extent time as such the contract was terminated. Aggrieved by the same, the petitioner herein filed the Writ 4 Petition bearing No.9409/2014 and the same was disposed of directing the respondents to consider the representation of the petitioner dated 21.03.2014 for not considering application/representation, the petitioner was constrained to file Contempt Case and the said Contempt Case was withdrawn by the petitioner and the petitioner was granted extension of time and the petitioner was invited for inspection and he has not agreed that he has not participated in the inspection and as such it is contended that the termination and demanding remittance of an amount of Rs.81,932/- is contrary to law and it violates Articles 14, 21 and 19 (g) of Constitution of India.
5. The 4th respondent-Divisional Forest Officer, Srikakulam District has filed counter stating that as per clause No.24 of the agreement the Earnest Money Deposit (EMD) and Fixed Security Deposit(FSD) has been forfeited and the same was intimated to the petitioner in writing. This Clause ibid clearly states that if the contractor is guilty of delay in commencing and carrying on the work and fails to improve inspite of the notice, it shall be lawful for the 4th respondent to determine the contract which shall entail forfeiture of EMD and FSD and other amounts due to contractor and also further asserted that option will remain open for the 4th respondent to have the balance work carried out by the another contractor or departmentally at the risk of the contractor and the petitioner is required to submit the details of the 5 work executed to the extent of Rs.37.00 Lakhs as to whether gross and/or Net after statutory recoveries and after reckoning less tender percentage of 10.49 allowed by this lowest tenderar. In fact the sanctioned estimate value of tender was Rs.42.25 lakhs and after taking into cognizance of less rates quoted, the agreement was reached for Rs.37.82 lakhs only. It is also required to refund the excess amount paid to him which is to the tune of Rs.81,932/- since EMD and FSD are to be forfeited to the Government as per the relevant clauses of the agreement vide clause No.24. On 15.03.2015 a meeting was convened by the 4th respondent along with Field Executive officers and with petitioner. During the course of discussions, the petitioner was requested to execute and complete the balance works on or before 25.03.2015 with a view that the remaining few days could be utilized for taking measurement of the works and clear the payments well within 31.03.2014 to account for in the same financial year. But the contractor/petitioner had neither agreed nor waited till the minutes were drawn and had simply left the venue. Hence, excess payment was noticed by the respondents. Hence, prayed to dismiss the writ petition.
6. As the very contention of the learned counsel for the respondents is that, the petitioner has not completed the work and they have to invite special tender for the left over work and also 6 contended that respondents have disputed the execution of work. If at all the petitioner is aggrieved, he has to go before the Civil Court as per the clause No.45 of the agreement, which was entered between the petitioner and the respondents. Clause 45 is hereby extracted:
"...Arbitration and dispute settlement:- Except as otherwise provided in the contract, all disputes and differences arising out of relating to the contract shall be referred to adjudication as follows:-
1.(i) Settlement of all claims upto Rs.50,000/- in value and below by way of Arbitration to be referred as follows:-
(a) Claims/bill upto Conservator of Forests of 10,000/- another circle of A.P.Forest Department to be notified by the Principal Chief Conservator of Forests.
(b) Claims/bill Chief Conservator of Forests
above Rs.10,000/- of the Forest Department
and upto other than the Chief
Rs.50,000/- Conservator of Forests in
charge of the work in
question to be notified by the
Principal Chief Conservator
of Forests.
The Arbitration proceedings will be conducted in accordance with provisions of the Arbitration Act. The Arbitrator shall invariably give reasons in the award.
(ii) Settlement of all claims above 50,000/- value shall be decided by a Civil Court of competent jurisdiction by way of regular suit and not by arbitration..."
7. As per the said clause, if the claim amount is more than 50,000/- one has to approach the Civil Court. The Hon'ble Supreme Court in 7 State of U.P. & Others v. Bridge & Roof Company (India) Ltd 1 at Para No.21 held as follows:
"...21. 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. The 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-recognized 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..."
8. Recently in M.P.Power Management Company Limited v. Sky Power Southeast Solar India Private Limited Company2 the Hon'ble Apex Court held that in the following:
"...The existence of an alternate remedy, is undoubtedly, a matter to be borne in mind in declining relief in a writ petition in a contractual matter. Again, the question as to whether the writ petitioner must be told off the gates, would depend upon the nature of the claim and relief sought by the petitioner, the questions, which would have to be decided, and, most importantly, whether there are disputed questions of fact, 1 1996 (6) SCC 22 2 (2023) 2 SCC 703 8 resolution of which is necessary, as an indispensible prelude to the grant of the relief sought. Undoubtedly, while there is no prohibition, in the writ court even deciding disputed questions of fact, particularly when the dispute surrounds demystifying of documents only, the Court may relegate the party to the remedy by way of a civil suit.
Ordinarily, the cases of termination of contract by the State, acting within its contractual domain, may not lend itself for appropriate redress by the writ court. This is, undoubtedly, so if the Court is duty- bound to arrive at findings, which involve untying knots, which are presented by disputed questions of facts. Undoubtedly, in view of ABL(ABL International Ltd., v. Export Credit Guarantee Corpn.of India Ltd., (2004) 3 SCC 553), if resolving the dispute, in a case of repudiation of a contract, involves only appreciating the true scope of documentary material in the light of pleadings, the Court may still grant relief to an applicant. We must enter a caveat. The Courts are today reeling under the weight of a docket explosion, which is truly alarming. If a case involves a large body of documents and the Court is called upon to enter upon findings of facts and involves merely the construction of the document, it may not be an unsound discretion to relegate the party to the alternate remedy. This is not to deprive the Court of its constitutional power as laid down in ABL. It all depends upon the facts of each case as to whether, having regard to the scope of the dispute to be resolved, whether the Court will still entertain the petition."..."
9. In the present case as seen from the averments in the affidavit and in the counter it is writ large, that the contract was terminated by the respondents and the contract was re-entrusted to another contractor. On the touchstone of the finding arrived by the Hon'ble Apex Court in M.P.Power Management Company Limited, when the contract is terminated or repudiated it involves a dispute and it can be only resolved by appreciating the evidence. In the light of pleadings, admittedly disputed facts were involved in the present case and a 9 clause of alternative remedy is provided under the agreement to settle the dispute, and as held by the Hon'ble Apex Court in State of U.P. & Others (supra1) when effective alternative remedy is provided is a good ground for the Court to decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
10. Therefore, the present Writ Petition is dismissed. There shall be no order as to costs.
As a sequel thereto, miscellaneous Petitions pending, if any, shall stand closed.
___________________________________ JUSTICE TARLADA RAJASEKHARA RAO Date: 28.08.2024 KBN 10 108 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHARA RAO WRIT PETITION No.4310 of 2016 Date: 28.08.2024 KBN