Judgment:
(This Writ Petition Is Filed Under Articles 226 And 227 Of The Constitution Of India, Praying To Direct The Respondents To Release The Balance Bill Amount Of ?19,18,781/ For The Contract Work Carried Out Under The Scheme H.A.No.3054 Roads and Bridges (Non-Plan) Special Repairs For The Year 2000-01 To 2003-04.
This Petition Coming On For Preliminary Hearing This Day, The Court Made The Following:)
1. The petitioner is a Class-I PWD Contractor. He has filed this writ petition, to issue a writ of mandamus and direct the respondents to pay the balance bill amount of ?19,18,781/- for the work executed by him.
2. Sri K.T. Gurudeva Prasad, learned advocate, contended that the respondents have no right to retain the balance bill amount towards contract work executed by the petitioner i.e., for construction of roads and bridges as per the Scheme H/A No.3054 for the years 2000-01 to 2003-04, even after final bill submitted by the petitioner was accepted. He submitted that despite submission of repeated representations and the correspondence amongst the authorities, there is inaction on the part of the respondents and the petitioner has been made to suffer financial loss. He further submitted that, since, no steps have taken for payment of the balance amount even after submission of a representation on 16.01.2013, this writ petition has been filed for grant of the relief.
3. Sri H.T. Narendra Prasad, learned AGA, on the other hand submitted that the writ petition for issue of direction for payment of the balance bill amount being not maintainable is liable to be rejected. He submitted that the alleged work executed, even according to the petitioner, being for the period 2000-01 to 2003-04, the writ petition having been filed on 03.01.2014, there is bar of limitation, apart from need for adjudication of factual matrix, which is not permissible in exercise of writ jurisdiction.
4. Perused the writ record. Point for consideration is, whether the writ petition under Article 226 of the Constitution of India is maintainable and whether a writ of mandamus cart be issued to pay the contract work bill amount?
5. This writ petition has been filed to direct the respondents to pay the balance bill amount in respect of the contract work for the period from 2000-01 to 2003-04. In a matter of present nature, the petitioner cannot invoke the writ jurisdiction under Article 226 of the Constitution of India. A writ of mandamus can be issued where there is a legal right and can be refused where there is an alternative remedy which can be availed. If there is no other means to obtain justice a writ of mandamus can be issued for doing justice.
6. In Burmah Construction Company Vs. State of Orissa and others, AIR 1962 SC 1320, Apex Court has held that, normally, the petition will not be entertained to enforce a civil liability arising out of breach of a contract or a tort, to pay an amount of money and an order for payment of money be sometimes made to enforcement of a statutory obligation
7. In Suga.nmal Vs. State of Madhya Pradesh and others, AIR 1965 SC 1740, Apex Court has held that the mandamus for recovery of money could be issued only when the petitioner is entitled to recover that money under some statute.
8. In Kerala State Electricity Board and another l/s. Kurien E. Kalathil and others, (2000) 6 SCC 293, the respondent-contractor had sought issue of writ of mandamus, directing the appellant-Board to discharge its obligation under a notification issued under the Minimum Wages Act and a direction contained in a judgment and an award and to further issue a writ of mandamus to the Board, directing it to pay to him the amount shown in the settlement arrived at. Apex Court has held as follows:
"10. We find that there is a merit in the first contention of Mr. Raval. Learned Counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it hac been avjarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.
11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of 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 disputesabout 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 parlies, 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 n the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms arid ccnditions 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 [he 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 should have relegated to other remedies."
(Italicised for emphasis)
9. The contract between the parties herein is not a statutory contract and being governed by the provisions of the Contract Act is in the realm of private law. Any dispute, relating to the terms and conditions of such contract cannot be agitated in a writ petition. The dispute, if any, can be the subject matter of either Arbitration, if provided by the agreement or for the Civil Court to decide. Whether any amount is due to the petitioner and, if so, how much and further question, whether the retention or refusal to pay the amount by the respondents is justified or not are matters which cannot be agitated or adjudicated upon in this writ petition.
10. If the money due to the petitioner is payable under a contract and if the petitioner has discharged the contractual obligations, he should seek enforcement of the contractual obligations in arbitration, if there is an agreement in th-?t regard or before a Civil Court. Prima facie, quest'on of limitation is involved, since, the contract period even according to the petitioner expired during 2003-04 and this writ petition was filed on 03.01.2014. Limitation is a mixed question of fact and law. Disputed questions of fact cannot be the subject matter of consideration in exercise of writ jurisdiction. The petitioner has not sought the enforcement of statutory dues or the money payable under some statute.
11. In Godavari Sugar Mills Ltd. /s. State of Maharashtra and others, (2011) 2 SCC 439, Hon'ble Supreme Court after noticing the previous decisions has made the legal position clear and has held that, normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort, to pay an amount of money due to the claimant and the aggrieved party will have to agitate the question in a civil suit.
In the circumstances, it is not open to the petitioner to invoke writ jurisdiction of this Court for relief. The writ petition for the relief sought is not maintainable. Consequently writ of mandamus cannot be issued. However, if the petitioner is advised, he may institute a suit for passing money decree i.e., realization of contractual dues.
Writ petition is rejected accordingly.