Gauhati High Court
Page No.# 1/9 vs The Union Of India And 6 Ors on 16 September, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/9
GAHC010080142023
2025:GAU-AS:12717
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2061/2023
M/S GOSWAMI ENGINEERING
HAVING THEIR OFFICE AT NH-37(A), BATAMARI,
P.O.- KALIABHOMORA,
TEZPUR, ASSAM- 784027,
DULY REPRESENTED BY ITS PARTNER SRI DIGANTA GOSWAMI,
AGED ABOUT 61 YEARS,
SON OF LATE BARADA KANTA GOSWAMI,
RESIDENT OF POLOFIELD BAMUNGAON, P.O. AND P.S.-TEZPUR- 784001,
ASSAM.
VERSUS
THE UNION OF INDIA AND 6 ORS
REPRESENTED BY THE DEFENCE SECRETARY,
MINISTRY OF ROAD TRANSPORT AND HIGHWAY,
TRANSPORT BHAWAN-1,
PARLIAMENT STREET, NEW DELHI- 110001.
2:THE MANAGING DIRECTOR
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LTD. (NHIDCL)
MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS
3RD FLOOR
PTI BUILDING
4-PARLIAMENT STREET
NEW DELHI- 110001.
3:THE EXECUTIVE DIRECTOR (P)
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED (NHIDCL)
Page No.# 2/9
REGIONAL OFFICE- GUWAHATI
MINISTRY OF ROAD
TRANSPORT AND HIGHWAYS
2ND FLOOR
AGNISHANTI BUSINESS PARK
OPP. AGP OFFICE
GNB ROAD
AMBARI
GUWAHATI- 781001
ASSAM.
4:THE GENERAL MANAGER (PROJECT)
NATIONAL HIGHWAYS AND INFRASTRUCTURE DEVELOPMENT
CORPORATION LIMITED
PROJECT MONITORING UNIT- TEZPUR
SARAF TOWER
1ST FLOOR
OPPOSITE DON BOSCO SCHOOL
MAZGAON
TEZPUR- 784001
ASSAM.
5:STUP CONSTULTANTS PVT. LTD.
PS SRIJAN TECH PARK
8TH FLOOR
PLOT NO. DN-52
BLOCK-DN
ELECTRONIC COMPLEX
SALT LAKE CITY
SECTOR-V
KOLKATA- 700091.
6:M/S. RAMKY-TK(JV)
RAMK GRANDIOSE
19TH FLOOR
SY. NO. 136/2 AND 4
GACHIBOWLI
HYDERABAD- 500032
TELENGANA.
Page No.# 3/9
7:M/S. T K ENGINEERING CONSORTIUM (P) LTD.
MODEL VILLAGE- NAHARLAGUN
DISTRICT- PAPUM PARE
ARUNACHAL PRADESH- 791110
For the petitioner : Mr. D. Borah, Advocate
For the respondents : Mr. R. K. Talukdar, SC, NHIDCL
Mr. S. K. Deori, Advocate
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
Date of Hearing : 16.09.2025
Date of Judgment : 16.09.2025
JUDGMENT AND ORDER (ORAL)
Heard Mr. D. Borah, the learned counsel appearing on behalf of the petitioner. Mr. R. K. Talukdar, the learned counsel appears on behalf of the respondent Nos.2, 3 & 4 and Mr. S. K. Deori, the learned counsel appears on behalf of the respondent Nos.6 & 7. None appears on behalf of the respondent Nos.1 & 5.
2. The petitioner herein is aggrieved by the inaction on the part of the Respondent Authorities, more particularly, the respondent Nos.2 to 4 in not releasing the amount of Rs.2,21,08,249/- which the petitioner claims to be entitled on the basis of the work order dated 27.10.2015.
3. The materials on record show that the petitioner which is a micro, small, and medium enterprise is an empanelled contractor with the Page No.# 4/9 Assam Power Distribution Company Limited (APDCL). The respondent Nos.2, 3 & 4 had granted a contract to the respondent No.6 for the purpose of construction of the National Highway No.52 from Bishwanath Chariali bypass to Gohpur, i.e. chainage km 208.00 to km 265.00 in the Sonitpur District of the State of Assam. The said contract entered into by and between the respondent No.6 contained a Clause being the Clause 9.2. The said Clause being relevant is reproduced herein under:-
"9.2 Shifting of obstructing utilities The Contractor shall, in accordance with Applicable Laws and with assistance of the Authority, cause shifting of any utility (including electric lines, water pipes and telephone cables) to an appropriate location or alignment, if such utility or obstruction adversely affects the execution of Works or Maintenance of the Project Highway in accordance with this Agreement. The actual cost of such shifting, as approved and communicated by the entity owning the utility, shall be paid by the Contractor and reimbursed by the Authority to the Contractor. In the event of any delay in such shifting by the entity owning the utility beyond a period of 180 (one hundred and eighty) days from the date of notice by the Contractor to the entity owning the utility and to the Authority, the Contractor shall be entitled to Damages in a sum calculated in accordance with the formula specified in Clause 8.3.1 for the period of delay, and to Time Extension in accordance with Clause 10.5 for and in respect of the part(s) of the Works affected by such delay; provided that if the delays involve any time overlaps, the overlaps shall not be additive."
4. The record reveals that the respondent No.6 issued a work order to the petitioner for shifting of HT/LT lines in between Bishwanath Page No.# 5/9 Chariali to Gohpur from km. 208.000 to 265.500. In the said work order so issued to the petitioner by the respondent No.6, the payment terms have been duly mentioned at Clause 5 of the work order dated 27.10.2015. Clause 5 of the said work order, being relevant, is reproduced herein under:-
"5. PAYMENT TERMS:
You shall raise the running bills fortnightly duly certified by APDCL, Biswanath Chariali. Payment towards the same shall be made as follows:
a) After completion of work, bill shall be submitted to RAMKY-TK (JV) along with all supporting documents such as joint records, certified measurement & reconciliation statement of the issued materials etc. The same shall be verified by our Authority Engineer and put to NHIDCL for payment.
b) Net RA bill amount will be released to you immediately only after receipt from our authority.
c) 4% of the Bill value will be retained in cash as Retention Money from all your bills. The retention money shall be released within 60 days from the date of certification of final bill along with all supporting documents, reconciliation statement etc. whichever is later.
d) All statutory deduction shall be made as per prevailing norms.
e) 20 % of the billed amount shall be payable to M/S Ramky-TK (JV) as agreed by you and the same shall be deducted from your RA Bill.
f) Quality standard shall be maintained in terms of guidelines made and delivered by APDCL and rectifications, if any required to be done, shall be done at your own cost and no extra payment shall be made."
5. It is further seen that in terms with Clause 8 of the said work order Page No.# 6/9 if any kind of dispute or differences arises during the execution of the work, the same shall be settled/reconciled in cordial manner, and the decision of the Assistant General Manager of the APDCL, Biswanath Chariali shall be final and shall be mandatory for both the parties.
6. The petitioner claims that in terms with the work order, the petitioner had carried out the work, and out of the said amount to which the petitioner is entitled to, an amount of Rs.88,00,000/- has already been paid to the petitioner and the petitioner is further entitled to an amount of Rs.2,21,08,249/- and on account of non-payment of the same, the present writ petition has been filed.
7. The respondent Nos.2 to 4 have duly filed their affidavit-in- opposition wherein their stand is that the question of payment of the amount by the said respondents to the petitioner does not arise unless and until the said payment has been made by the respondent No.6 and thereupon only the respondent Nos.2 to 4 shall reimburse the said amount.
8. The respondent No.6 has not filed any affidavit-in-opposition. But, the learned counsel appearing on behalf of the respondent Nos.6 & 7 submitted that the contract between the respondent No.6 and the respondent Nos.2 to 4 has been foreclosed and there is an arbitration proceedings ongoing.
9. In the backdrop of the above, the question therefore arises is as to whether this Court is required to issue a writ in the nature of mandamus Page No.# 7/9 thereby directing the respondent No.6 to pay the said amount to the petitioner, and thereupon, claim reimbursement from the respondent Nos.2 to 4.
10. This Court finds it very pertinent at this stage to take note of Clause 9.2 which stipulates that it is the duty of the contractor who shall cause shifting of any utility, (including electric lines, water pipe and telephone cables) to an appropriate location or alignment if such utility or obstruction adversely affects the execution of the work on maintaining of the proper highway in accordance with the agreement. It further stipulates that the actual cost of such shifting, as approved and communicated by the entity owning the utility, shall be paid by the contractor and reimbursed by the authority to the contractor.
Therefore, the question arises in the present proceedings as to whether there has been any approval given by the entity owning the utility. The answer is in the negative taking into account that the owner of the utility in the present case would be the Assam Power Distribution Company Limited (APDCL) and there appears to be no certification by the said APDCL in respect to the actual cost of such shifting favouring the petitioner.
11. Taking into account the above, therefore, it appears that without the certification done by the entity owning the utility which would be the APDCL, the claim of the petitioner that the petitioner is entitled to the said amount of Rs.2,21,08,249/- cannot be accepted in the present Page No.# 8/9 proceedings. In addition to that, Clause 9.2 as quoted herein above makes it very clear that it is for the contractor, i.e. the respondent No.6 to first pay, and thereupon, the same would be reimbursed by the respondent Nos.2 to 4, and admittedly, no payment has been made as it is the very case of the petitioner. This Court is further of the opinion that any direction if issued directly upon the Respondent Nos.2 to 4 in the present facts would amount rewriting the contract by this Court in exercise of powers under Article 226 of the Constitution.
12. This Court is further of the opinion that the dispute in question is primarily a private dispute between the petitioner and the respondent No.6 and such disputes, cannot be permitted to be entertained in a proceedings under Article 226 of the Constitution. It is the further opinion of this Court that the instant dispute which also includes disputed questions of facts cannot be adjudicated on the ground that the evidence has to be led.
13. Considering the above, this Court, therefore, is not inclined to entertain the instant writ petition in view of the above reasons.
14. Accordingly, the instant writ petition, therefore, stands dismissed on the ground of being not entertained.
15. Before parting with the record, this Court, however, observes that as this Court is not entertaining the instant writ petition on the grounds and reasons set out herein above and further taking into account that the petitioner has been diligently and bonafidely litigating before this Page No.# 9/9 Court, the petitioner would be entitled to the benefit of Section 14 of the Limitation Act, 1963 for the period during which the present proceedings have been pending.
16. Accordingly, this Court therefore observes that the period from 10.04.2023 till date be excluded while computing the period of limitation in the circumstance the petitioner approaches the appropriate forum for redressal of the grievances.
17. The learned counsel for the petitioner submitted that during the pendency of the present proceedings, the petitioner was protected by certain interim orders and till such time the petitioner approaches the appropriate forum, the interim order be continued else it would be next to impossible for the petitioner to recover the amount from the Respondent No.6. This Court taking into consideration the said submission directs that for a period of 30 days from the date of the present judgment, the Respondent Nos.2 to 4 shall not release the amount of Rs.2,21,08,249/- to the Respondent No.6. Thereupon, the Respondent Nos.2 to 4 can do the needful as per law.
18. Writ petition accordingly stands disposed off.
JUDGE Comparing Assistant