Allahabad High Court
M/S Lalloo Ji Rajiv Chandra And Sons vs Meladhikari Prayagraj, Mela Authority ... on 11 March, 2019
Equivalent citations: AIRONLINE 2019 ALL 1530, (2019) 135 ALL LR 412, (2019) 2 ALL WC 1750, 2019 (4) ADJ 1 NOC
Bench: Pankaj Kumar Jaiswal, Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 Case :- WRIT - C No. - 3467 of 2019 Petitioner :- M/S Lalloo Ji Rajiv Chandra And Sons Respondent :- Meladhikari Prayagraj, Mela Authority And 3 Others Counsel for Petitioner :- Ashwani Kumar Sachan,Saurabh Sachan Counsel for Respondent :- C.S.C.,Pranjal Mehrotra Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri A.K. Sachan and Sri Saurabh Sachan, learned counsel for the petitioner, Sri Pranjal Mehrotra,, learned counsel for the respondents no. 2 and 3 and Sri Ajit Kumar Singh, learned Additional Advocate General assisted by Sri Sudhanshu Srivastava, learned Standing Counsel for the respondents no. 1 and 4.
2. The petitioner entered into a contract on 18.12.2015 with U.P. Jal Nigam, Allahabad for supply, installation and maintenance of Swiss Cottage, Tin Boundary Wall and supply of furniture on rental basis in Magh Mela 2015-2016. According to the petitioner he completed the work within time. Similarly in Magh Mela 2016-2017 and 2017-2018, a work was awarded to the petitioner and after completing all the formalities petitioner completed the contract. After completion of contract in the aforesaid financial years, petitioner submitted final bill but same was not paid, therefore, present writ petition has been filed for issuance of necessary directions to pay the bill together with interest at the rate of 18% per annum.
3. Learned counsel for the petitioner has submitted that the amount of bill has been admitted by the respondent no. 1 and there is no impediment for them in making payment. Law on the subject is well settled and the learned counsel for the petitioner has referred judgment in the matter of Chitra Gupta Trading Vs. U.P.P.W.D. and others, reported in 2010 (4) AWC 3911, in support of his contention and prayed that the respondents be directed to ensure payment of outstanding amount as may be found and payable to the petitioner with interest @ 18% per annum.
4. Per contra, learned counsel for the respondents no. 2 and 3 has submitted that these are purely contractual matters. The remedy of the petitioner, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement. The exercise of jurisdiction under Article 226 of the Constitution is not warranted for what the petitioner seeks in essence is a decree in a civil suit which cannot be granted in this proceedings and prayed for dismissal of the writ petition.
5. In the case of M/s Hyderabad Commercials Vs. Indian Bank and others, reported in AIR 1991 Supreme Court 247, the petitioner therein admitted that the transfer of the disputed amount had been made by the Bank in an unauthorized manner and it further admitted its liability to pay back the amount to the appellant therein, therefore, the Apex Court, under the aforesaid circumstances, directed in writ proceedings to re-credit the amount.
6. In the case of Popcorn Entertainment and another Vs. City Industrial Development Corpn. and another, reported in (2007) 9 SCC 593, the Apex Court in paragraph no. 22 has held that if the action of the respondent is illegal and without jurisdiction, if the principles of natural justice have been violated and if the appellants' fundamental rights have been violated, writ petition can be held maintainable.
7. In the matter of ABL International Ltd. And another Vs. Export Credit Guarantee Corporation of India Ltd. And others, reported in (2004) 3 SCC 553, the Apex Court has held that if the State acts in arbitrary manner even in the matter of contract then the aggrieved party can approach the Court by way of writ under Article 226 of the Constitution of India and the Court, depending upon the facts of such case, is empowered to grant relief.
8. It is well settled that writ petition involving serious disputed question of fact, which requires consideration of evidence which is not on record, will not normally be entertained by the Court in exercise of its jurisdiction under Article 226 of the Constitution, but there is no absolute rule that all the cases involving disputed question of fact, the parties should relegate to civil suit. Similar view has been taken by the Kerala High Court in WA No. 1996 of 2014 decided on 10.06.2015 (The Superintending Engineer, P.W.D and three others Vs. M/s Dora Infrastructures & Properties (P) Ltd. and another).
9. Learned Standing Counsel has drawn our attention to the decision taken in Writ-C No. 63139 of 2014 decided on 28.04.2017 (Smt. Atari Devi and 44 others Vs. State of U.P. and 6 others) and has submitted that the contract between the petitioner and respondent no. 2 is not a statutory contract and cannot be enforced under Article 226 of the Constitution of India. He submitted that the issue involved in this writ petition is no more res integra and is settled by a large number of judicial pronouncements of this Court. In support of aforesaid, he has drawn our attention to the decision taken in Writ-C No. 11544 of 2014 decided on 24.02.2014 (M/s R.S. Associate Thru' Prop. Reeta Singh Vs. State of U.P. and 3 others) and Misc. Bench No. 14618 of 2017 decided on 07.07.2017 (M/s Odyssey Computers through Marketing Manager Sri Ajai Singh Vs. State of U.P. and others). Paragraphs no. 13 to 16 of the order dated 07.07.2017 passed in Misc. Bench No. 14618 of 2017 reads as under:
"13. It is pertinent to mention here that on perusal of Annexure-7 G.O. dated 2.6.2015, it revealed that on the 'directions' issued by Finance Department of the Government of U.P. remaining amount of Rs. 59.30344 lac was deposited on 25.5.2009 in PLA of DRDA of BPL Survey Lucknow. Therefore payment of petitioner could not be made. On the basis of representations of opposite party no. 3 and opposite party no. 2 sanction was accorded for amount of Rs. 20,94,000.00/- in financial 2015-16 by opposite party No. 1-State of U.P. opposite party No. 3 vide letter dated 22.8.2015, 1.3.2016 and 29.3.2016 apprised opposite party No. 2 Commissioner Rural Development about transfer of sanctioned amount by providing details of bank account etc.
14. The fact that why sanctioned amount was not released by opposite party No. 2 in favour of opposite party No. 3 or equipments supplied by the petitioner firm are in working order is not clear on perusal of above mentioned correspondences made by opposite party No. 3. These facts can only be decided on the basis of evidence adduced by both the parties regarding violation of conditions of contract/order. The pleadings of the petition revealed that it is purely a private contractual matter between the parties and it was not a statutory contract indicating violation of any constitution right as alleged by the petitioner. The petitioner has alternative civil and criminal remedy as alleged in the legal notice dated 13.7.2016 sent by it to the opposite parties.
15. Further, learned counsel for petitioner, relying upon the correspondences made by opposite party No.3, has argued that liberty may be given to the petitioner to make representation for release of funds before the State Government. In the facts and circumstances of the case, the petitioner firm, if wishes, may make representation before the opposite party Nos. 1 and 2.
16. In view of the above exposition of law, it is trite that in contractual matters, it is not appropriate to exercise extra ordinary equitable jurisdiction under Article 226 of the Constitution of India. The petitioner is unable to disclose this fact that the order placed and contract executed between opposite party no. 3, the IBM company and the petitioner firm was a statutory contract, therefore, this petition devoid of merit and liable to be dismissed."
10. In the present case there is nothing to held that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement.
11. In our view, it will not either be appropriate or proper for the Court under Article 226 of the Constitution to entertain a petition of this nature. The grant of relief of this nature would virtually amount to a money decree. The petitioner is at liberty to take recourse to the remedies available by raising such a claim either invoking an arbitration clause (if it exists in the contract between the parties) or if there is no provision for arbitration, to move the competent civil court with a money claim. The law laid down by the Division Bench of Lucknow Bench in the case of M/s Odyssey Computers through Marketing Manager Sri Ajai Singh (Supra) will hold the field.
12. For the above mentioned reasons, it is not appropriate to exercise extra ordinary equitable jurisdiction under Article 226 of the Constitution of India.
13. The writ petition is, accordingly, dismissed. There shall be no order as to costs.
Order Date :- 11.3.2019 Ashish (Dr. Y.K. Srivastava, J.)(Pankaj Kumar Jaiswal, J.)