Full Judgment
S.J. Mukhopadhaya, J.
1. The writ petition has been preferred by petitioner for following relief :--
I. To issue writ in the nature of writ of Mandamus commanding the respondents to show cause as to why the petitioner's agreement in relation to work allotted vide job No. 023/B.R./99-515 and 516 vide F-2. Agreement be not closed.
II. To issue writ in the nature of writ of Mandamus directing the respondents not to make any deductions what so ever from any other work so allotted to the petitioner under a valid separate agreement and also to direct the respondents to refund the amount if already deducted to the petitioner forthwith.
III. To issue writ in the nature of Mandamus holding that the deductions made by the respondents as communicated to the petitioner vide letter No.755 dated 18.11.2002 under the signature of respondent No. 6 is ab initio void, illegal and without jurisdiction and the amount so deducted by the respondents be refunded to the petitioner forthwith.
IV. To issue any other appropriate writ or writs, order or orders, direction or directions as this Hon'ble Court may deem fit and proper.'
2. The counsel for the petitioner submitted that the respondents have not yet closed the contract No. 515 and 516, on the other hand, taken step to adjust a sum of Rs. 20,000,00/- (twenty lakhs) from the contract amount arising out of a third contract No. 538.
3. In the writ petition, the petitioner has made the following statement :--
That the petitioner further humbly states that the respondent-Executive Engineer though himself has written for closure of the agreement saying that the repairing work has already been completed by the petitioner and even the measurements were taken separately for the same but for the reasons best known to him, the same Executive Engineer has adjusted the excess payment made to the petitioner from the bills of another contract just in order to grab the money of the petitioner. It is relevant to state here that the agreement relating to job No. 516 has also not been closed and the security money and earnest money are still lying with the respondents which is approximately Rs. 20 Lacs. Moreover, the bill of approximately Rs. 50 to 60 Lacs is also lying with the respondents and therefore, any excess payment, if any, can be recovered by the respondents from the same contract also i.e. from the bills of job No. 516. But, certainly the respondent authorities have got no authority under law to make any deduction or recovery from the bill of any other contract of the petitioner.
That the respondent Executive Engineer has also written a letter dated 11.10.2002 to the Chief Engineer requesting him to give direction to closethe agreement of the petitioner relating to Job No. 515 and 516 as the work has already been completed in past itself, but no action has been taken to close the agreement.'
4. The respondents in their affidavit while opposed the prayer made following statement in respect to the three works awarded to the petitioner :--
'That the short facts and circumstances of the case is that the petitioner was awarded 3 works between k.m. 55 to 105 of N.H. 23 namely, widening of k.m. 53 to 62 under job No. 023/BR-98-515 (ii) widening of k.m. 67 to 75.435 under job No. 023/BR-98-516 itself and (iii) widening in k.m. M 101 to M 105 under job No. 23/BR-99-538. During the execution of work the road surface started showing the signs of failure and certain directions were passed by the respondent authorities to the petitioner-Contractor for rectification of all defects and failures, due to such sub, standard work the road failed badly and all payments of the petitioner-Contractor was stopped by respondent No. 4 till proper rectification of failure of the road.'
5. Learned counsel for the State relied on clause (i) of condition of contract enclosed as Annexure A-2 to the counter affidavit to suggest that if any amount is found payable to the Government by the contractor it can be adjusted from the security deposit or any other dues.
6. Having heard the counsel for the parties, I find that there are certain grounds mentioned in the counter affidavit for not closing the contract No. 515 and 516. In this background, this Court under Article 226 of the Constitution of India is not inclined to direct the respondents to close a contract without taking into consideration all the aspects and terms and conditions of such contract.
7. So far as adjustment of amount of about Rs. 20,000,00/- (twenty lakhs) is concerned, indirectly it is a money claim made by the petitioner and for that the petitioner can avail the alternative remedyof arbitration or may move before a Civil Court of competent jurisdiction or may move before the competent authority of the State. No finding can be given on the basis of facts as disputed by the respondents.
8. The writ petition stands disposedof.