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TMI Blog2021 (9) TMI 1548X X X X Extracts X X X X X X X X Extracts X X X X ..... . The entire amount claimed by the writ petitioner is disputed. The dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads. A p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timated amount payable for each work with rate of each work. The work was divided into three parts, such as, Formation work, which included jungle clearance etc.; Permanent work which included excavation in trenches, cement concrete; and Surface work which included preparation of subgrade in soil mix boulder, laying, spreading and compacting graded stone aggregate. The measurement process for payment was specified in the General Conditions of Contract, which read as under: "2 .8 .1 Excavation for roadway shall be measured by taking cross Section at suitable intervals in the original position before the work starts and after its completion and computing the volumes in cum by the method of average and areas for each class of material encountered. Where it is not feasible to computes volumes by this method because of erratic location of isolated deposits, the volumes shall be computed by other accepted methods. 2.8.2 At the option of the Engineer-In-Charge/QC Contract, the Contractor shall leave depth indicators during excavations of such shape and size and in such positions as directed so as to indicates the originals ground level as accurately as possible. The Contractor shall s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint Survey are recommended for construction on ground between Km 26.800 to Km 47.850 under CA No. CE/VTK/03/2009-10. PERMANENT WORKS 23. Abstract of quantity of item of works for construction of permanent structures which are executed and balance between Km 26.800 and Km 31.000 and structures provisioned between Km 31.000 and Km 47.850 has been worked out and shown at Appendix 'B'. 24. Permanent works to be executed under CA No. CE/VTK/ 03/2009-10 are as under: (a) R/Wall: R/Walls balance between Km 26.800 and Km 31.000 and provisioned between Km 31.000 and Km 40.000 at locations mentioned in Annexure-I to Appendix 'B' are recommended for execution on ground under CA No. CE/VTK/03/2009-10. (b) RCC Culverts: RCC Culverts balance between Km 26.800 and Km 31.000 including two incomplete RCC culverts at locations Km 28.300 and Km 29.000 and those provisioned between Km 31.000 and Km 47.850 at locations mentioned in Annexure-II to Appendix "B" are recommended for execution on ground under CA No. CE/VTK/03/2009-10. (c) T/Walls Below RCC Culverts: T/Walls below RCC Culverts balance between Km 26.800 and Km 31.000 and those provisioned between Km 31.000 and Km 47.850 at locat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration of subgrade in HR Sqm 21227.21 0.00 4 Sand Blanketting 25mm Sqm 21227.21 0.00 5 GSB 150mm thick Sqm 97317.50 5.90 6 GSB 100mm thick Sqm 64229.50 2.60 7 WMM 75mm thick Sqm 256370.31 15.54 8 Prime coat over WMM surface Sqm 85456.71 0.00 9 BM 50mm thick Sqm 85456.71 10.36 10 SDBC 25mm thick Sqm 85456.71 5.18 Total Surfacing Km Eqvt Cl-9 39.58 29. However, if the soil classification varies from the enclosed strata as shown in (Annexure-I to Appx "C"), layer combination shall be revised accordingly and be executed after prior approval of OC Contract duly supported with photographs of Soil strata. 30. Amendment in quantities of surfacing works are recommended only during final stage of completion of surfacing works. x xx x x CE/VTK/03/2009-10 ON ROAD LUMLA-TASHIGONG BETWEEN KM 26.800 TO KM 47.850 Sl. No. Location Earth Work involved in CUM Earth work in Embankment Jungle Clearance Unlined Drain in SR (M) Unlined Drain in HR(M) From To Cutting SMB SR HR 1 26.800 31.000 18727.01 1735.04 7631.42 0.00 0 125.00 217.80 2 31.000 47.850 356166.00 182073.00 337447. 0 0 0.00 23123.0 2174.80 4928 Presiding O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual quantities of earth work before commencement of the work on ground. A comparison of the contract amounts as well as amended contract amount was delineated in Table 3 which reads as thus: S. No. Description Original CA Amount (Crs) Amended CA Amount (Crs) Variation /o/ \(/o) 1 Formation works Rs.11,98 Rs.16.27 + 35,81 2 Permanent works Rs.06.63 Rs.6.25 -05,73 3 Surfacing works Rs.13.26 Rs.12.51 -05,6.6 Total Rs.31.87 Rs.35.03 +09.91 9. It was also pointed out that the formation work was completed on 20.9.2012 i.e., not four years back but two years back, as stated by the writ petitioner. The writ petitioner was communicated that the unpaid amount on account of original formation work was Rs.74,33,631/- and Rs.4 crores (approx.) for extra widening of road beyond 7.45 m. It was communicated as under: "…. (h) It is worth mentioning that vide your letter No. NCUBRO/ L-T/ADM/2013 dated 12 Jul 2013 (copy enclosed as Appx 'D') you claimed unpaid amount just Rs.74,33,631.00 on account of original formation work and Rs. 4.00 Crores (approximately) on account of extra widening of road beyond 7.45m which is beyond the scope of the contract and the same h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 have not been submitted by you. (c) Claims for extra work done in respect of earth work quantities beyond scope of contract claimed through your various letters have been refuted by accepting officer in this connection please refer HQ CE(P) Vartak letter No. 80914/L-T/26.800 to 47.850/326/E8 dated 18 Jul 2014 (copy enclosed). (d) Joint survey earned out in respect of formation works completed against subject CA is under scrutiny and not yet approved by competent Financial authority. (e) Query in respect of escalation payment made against formation works has been raised by HQ CE(P) Vartak to HQ DGBR vide their letter No. 80914/L-T/26.800 to 47 85/286/E8 dated 28 Jun 2014 whose reply is awaited. (f) As per directions received vide Par 8 of HQ DGBR/ADG Sectt letter No 71004/DGBR/25/ADG Sectt dated 25 Jul 2014 and HQ CE(P) Vartak letter No B0914/LT/26.800 to 47.85/341/E8 dated 30 Jul 2014 (copy of both letters enclosed) recovery of amount on account of non hancing over the quantity of hard rock from the formation works executed has to be incorporated in your final bill on receipt of reply from HQ CE(P) Vartak. (g) Already matter in respect of disputes relating to subject C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,155.00 Rs. 4,08,93,814.00 VI Total Pending Bill amounts Rs. 23,68,11,589.00 15. Thereafter, the writ petitioner filed a writ petition before the High Court on or about 23.11.2015 for quashing of the letter dated 27.8.2015. The writ petitioner was informed vide the said letter to process the bills through laid down channels before DC Contract and Commander Contract. The letter dated 21.10.2015 was also challenged which is a reply to the notice under Section 80 of the Code of Civil Procedure, 1908. A writ of mandamus was prayed for to pay a sum of Rs.31,57,16,134/- with 18% interest. In reply to the said writ petition, the assertions made by the writ petitioner were controverted but also an objection was raised that there was a clause for arbitration for resolving disputes arising between the parties, therefore, the writ petitioner should have approached the designated authority by appointment of an arbitrator. 16. The appellants in their affidavit had pointed out that after completion of the formation work, the writ petitioner had communicated expenses of Rs.16,93,51,980/- as against provision of Rs.16,26,71,039.40. It was asserted that the writ petitioner has been paid a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple -- Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457], Premji Bhai Parmar v. DDA [(1980) 2 SCC 129] and Divl. Forest Officer v. Bishwanath Tea Co. Ltd. [(1981) 3 SCC 238 : (1981) 3 SCR 662] " x xx x x 69. The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, "normally", the Court would not exercise such a discretion: 69.1. The Court may not examine the issue unless the action has some public law character attached to it. 69.2. Whenever a particular mode of settlement of dispute is provided in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs.23,68,11,589.02 in the letter dated 17.6.2014 has swelled into an amount of Rs. 35,51,80,651 as per the notice under Section 80 of the Code. Therefore, for the purposes of these proceedings, the communication dated 29.10.2013 cannot be permitted to be disputed by the writ petitioner. 22. The Board of Officers convened its meeting but the same was cancelled vide communication dated 8.6.2015. Thus, an attempt by the appellants to resolve the disputes regarding the measurements by constituting Board of Officers was scuttled by the writ petitioner for the reasons best known to him. 23. The High Court has based its order on the ground that after five monsoons, the final measurements could not be ascertained. If the final measurements could not be done at the spot, the contemporary evidence and the measurement books prepared from time to time could be the basis for determining the liability of the appellants. The Joint Survey Report is not an admitted measurement, though some officers might have signed it. The Report prepared after the completion of work wherein no such work done is reflected in the measurement book prepared during execution of work is an attempt to inflate the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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