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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 ..... 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 arise out of a common judgment and order and common questions of law and fact are involved, for which the aforesaid appeals were heard analogously and are decided by this common judgment and order. 4. The writ petitions involve similar facts and there are minor factual differences including the dates of the correspondences exchanged between the parties. In order to avoid repetition and for the purpose of convenience, the facts of WPA 27966 of 2022 is summarised hereunder and the appeal being MAT 1412 of 2023 arising out of the said writ petition is treated to be the lead case. 5. The Superintending Engineer of Ghani Khan Choudhury Institute of Engineering and Technology, Malda (hereinafter referred to as "the Institute") issued a Notice Inviting Tender being No. 04 of 2013-2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntra-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 were raised by the agencies during the mentorship of NIT, Durgapur in the year 2015 and those were submitted before the mentor Institute namely NIT, Durgapur for releasing the payment. He submitted that the Assistant Engineer of the Institute appointed by NIT, Durgapur made a note of objections on 03.06.2016 in connection with the bills in question and the NIT, Durgapur did not release the payment towards the agencies and returned all the original files related to the said works. He further submitted that each items of work under the Notice Inviting Tender in question were in excess of Rupees Thirty lakhs which should have been assigned to a public work organization and not to the writ petitioners. He concluded by submitting that the impugned order is liable to be set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Mall Management Pvt. Ltd. & others reported at 2018 SCC Online Cal 12876. 12. Heard the learned Advocates for the parties and perused the materials placed. 13. The writ petitioners have prayed for a direction upon the Institute to compel the Institute to honour its contractual obligations of making payment. 14. Serious objections as to the maintainability of the writ petitions have been raised by the appellants as well as by the Union of India i.e., the 3rd respondent. Therefore, this Court shall proceed to decide such issue first. 15. The Institute is a Central Government funded technical institute. That the said Institute is amenable to the jurisdiction of the High Court under Article 226 of the Constitution of India is not in dispute. The contract entered into be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. 18. 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. 19. The stand of the Institute in the report filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied 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 Institute refers to the CAG report which noted that the entire construction work of the Institute was entrusted to NBCC by virtue of MOU signed between the Institute and NBCC. The said report pointed out that the requirement of "Land Development by Earth Filling" was not referred to in the declared estimate of NBCC. It also referred to a letter of the NBCC addressed to the Institute that NBCC were not intimated about the execution of earth filing work and also that the same was causing hindrance to the construction work due to slush after rains. CAG report states that the expenditure amounting to Rs. 1023.51 lakhs for earth work was outside the plan and the estimate prepared by the NBCC was irregular. The said report further stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 exercise of its discretion entertain the writ petition. 33. In the case on hand, the allegation of the writ petitioners is with regard to violation of a contractual right. The writ petitioners have claimed payment on account of work done by them. The dispute, therefore, is within the private realm. In order to maintain a writ petition involving such a dispute, the writ petitioners have to satisfy the Court that the case falls within the exceptional circumstances. The conduct of the writ petitioners may be of some relevance for deciding whether the case of the writ petitioners fall within the exceptional circumstances. 34. The completion certificate was issued was January 7, 2015; the Final Bill was submitted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... menable 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 the Learned Single Judge for which this Court is inclined to interfere with the impugned judgment and order in these intra court appeals. 40. Surya Constructions (supra) cannot come to the aid of the writ petitioners /respondents as the money claim therein was not disputed, whereas in the case on hand, the claim for payment of money cannot be said to be an admitted one in view of the note of objections dated 03.06.2016 of the Assistant Engineer of the Institute and the consequent return of the original file by the mentor, NIT, Durgapur. 41. For the reasons as aforesaid the appeals stand allowed. The impugned judgment and order stands set aside. The connected applications stand disposed of. Writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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