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TMI Blog2024 (5) TMI 882X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of non-statutory contract, the jurisdiction of the writ court can be invoked if the aggrieved party is able to establish that the action of the entity amenable to writ jurisdiction is per se arbitrary. The said decision also recognizes the right of an aggrieved party to call upon such an entity to honour its obligation of making payment unless a serious and genuine dispute is raised relating to the liability to make such payment. Before arriving at a final conclusion as to whether the judgment and order impugned calls for interference, this Court has to turn back to the case on hand to see whether there is a serious and genuine dispute relating to the liability to make payment - The stand of the Institute in the report filed in the form of an affidavit before the writ court that the Institute was established and placed under the mentorship of NIT, Durgapur, in the absence of its regular Director and the mentorship continued till 06.08.2017 and also that the Institute got its first director on and from 07.08.2017 does not appear to have been disputed by the writ petitioners. This Court is of the considered view that in case of alleged violation of a contractual right or duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intainable. The impugned judgment and order stands set aside - Appal allowed. - Hon ble The Chief Justice T. S. Sivagnanam And Hon ble Justice Hiranmay Bhattacharyya For the Appellants : Md. Sarwar Jahan, Mr. Maidul Islam Kayal, Mr. Sayantan Hazra, Ms. Tapati Sarkar. For the Respondents : Mr. Abhratosh Majumder, Sr. Adv., Mr. Subhabrata Datta, Mr. Debasish Sarkar. For the Union of India : Mr. Kumar Jyoti Tewari,, Ms. Ashima Roy Chowdhury,, Mr. Tirthapati Acharyya. ORDER HIRANMAY BHATTACHARYYA, J.:- 1. These appeals at the instance of Ghani Khan Choudhury Institute of Engineering and Technology and its Director, Chairman and others are directed against a common judgment and order dated May 17, 2023 passed in a batch of writ petitions, the lead case being WPA 27966 of 2022. 2. M/s. Malda Construction Company filed two writ petitions being WPA 27966 of 2022 and WPA 28412 of 2022. WPA 28415 of 2022 was at the instance of Subham Enterprise. Gouri Construction filed two writ petitions being WPA 28417 of 2022 and WPA 28419 of 2022. 3. The aforesaid writ petitions were heard analogously by the learned Single Judge and were disposed of by a common judgment and order. The aforesaid appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioners bills despite the petitioners completing the work to the satisfaction of the Institute amounts to arbitrary and unreasonable conduct on the part of an entity amenable to Article 226 of the Constitution of India. After recording the aforesaid findings, the learned Single Judge allowed the writ petitions with a direction upon the Director of the Institute to release the amounts as indicated in the impugned order along with the security deposits furnished by the petitioners and with interest at 6% per annum with each of the amounts indicated in the said order from the dates on which the 3rd and final running account bills were raised to the dates of payment. 8. Being aggrieved, by the said judgment and order, the Institute has approached this Court with these intra-court appeals. 9. Md. Sarwar Jahan, learned Advocate appearing in support of the appeals contended that the Institute was established and placed under the mentorship of NIT, Durgapur till 06.08.2017. He submitted that the Chairman, Board of Governor was not eligible to execute tender works as per the Memorandum of Association of the Institute as he had no financial powers. He submitted that the final bills we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Article 226 of the Constitution behaved arbitrarily by not releasing payment of undisputed amount. In support of such contention, he placed reliance upon the decision of the Hon ble Supreme Court in Surya Constructions vs. State of Uttar Pradesh and Others reported at (2019) 16 SCC 794. Mr. Majumdar relied upon a decision in the case of M.P. Power Management Company Limited, Jabalpur vs. Sky Power South-East Solar India Private Limited and Ors. reported at (2023) 2 SCC 703 in support of his contention that an aggrieved party can approach the writ court seeking payment of the amounts arising out of contractual obligation. Mr. Majumdar contended that the Institute cannot be permitted to raise the points indicated in the CAG report as a defence against the claim of the writ petitioners as the CAG report is not sacrosanct as the same is subject to parliamentary debates. In support of such contention, he placed reliance upon the decision of the Hon ble Supreme Court in Arun Kumar Agrawal vs. Union of India and ors. reported at (2013) 7 SCC 1. For the same proposition, Mr. Majumdar placed reliance upon a decision of a co-ordinate bench in the case of KMDA Another vs. Riddhi Siddhi Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous and genuine dispute raised relating to the liability of the State to make the payment. Such dispute, ordinarily, would include the contention that the aggrieved party has not fulfilled its obligations and the Court finds that such a contention by the State is not a mere ruse or a pretence. 82.7. 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, resolution of which is necessary, as an indispensable 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. 82.8. ******** 17. The proposition of law laid down by the Hon ble Supreme Court in the aforesaid reports is that even in case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant writ petition is non disbursal of the amount raised in the Final Bill. 22. The Institute claims to have submitted the Final Bills raised by the writ petitioners before the NIT, Durgapur Government of India, by a letter dated 18th March 2015 while conveying its decision to release the Plan Grant for the financial year 2014-15 requested NIT, Durgapur to clear all pending bills submitted by the Institute immediately. However, it was clarified that if NIT, Durgapur finds that any expenditure by the Institute is against the prescribed procedure or rules or beyond the sanctioned amount then that may immediately be brought to the notice of the Ministry and it may be ensured that prescribed procedures and rules are complied with totally by the Institute. 23. It further appears from the said affidavit that the Assistant Engineer (Civil) of the Institute made a note of objections on 03.06.2016 in connection with the bills in question and the NIT, Durgapur accordingly returned the original file relating to the works in question without releasing the payment. Therefore, the amount claimed in the Final Bill cannot be said to be an admitted one. 24. The affidavit filed by the Institu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refuse to exercise such discretion. The Hon ble Supreme Court specified the circumstances where normally the Court would not exercise such a discretion. It was held that money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 30. Therefore, this Court has to consider as to whether the learned Single Judge was right in exercising discretion in favour of the writ petitioners. 31. Three Hon ble Judges of the Supreme Court in Bharat Coking Coal Limited (supra) held that merely because the accusations made are against the State or its instrumentalities it does not mean that an aggrieved party can bypass established civil adjudicatory process and directly seek writ relief. 32. From the aforesaid discussion, this Court is of the considered view that in case of alleged violation of a contractual right or duty by the State or its instrumentalities or entities amenable to jurisdiction under Article 226, normally the aggrieved person has to avail the established civil adjudicatory process and only in exceptional circumstances in contractual matters or even when money claim is raised, the writ court may in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court which somehow escaped the attention of the learned Single Judge. Therefore, it appears to this Court that there is a serious dispute as to the liability to make payment. 37. To the mind of this Court, the writ petitioners have miserably failed to bring their case within the exceptional circumstances for the Writ Court to entertain a money claim for alleged violation of a contractual right by an entity amenable to the jurisdiction under Article 226 of the Constitution of India. 38. For the reasons as aforesaid, this Court is of the considered view that the writ petitioners could not have been allowed to bypass the established civil adjudicatory process merely because the claim is against an entity amenable to writ jurisdiction. This Court, therefore, holds that the writ petitions were not maintainable. 39. It appears that Issuance of Completion Certificate in favour of the writ petitioner forms the basis of the decision to grant relief by the learned Single Judge. The aforesaid relevant factors as indicated in the preceeding paragraphs, goes to the root of the jurisdiction of the Court to grant relief, non-consideration of which amounts to improper exercise of discretion by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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