Rahul Bisht Vs the State of Hp and Others

2025:HHC:1411

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Civil Writ Petition No.15610 of 2024 Date of Decision: 07.01.2025

______________________________________________ Rahul Bisht	_______________________ ……...Petitioner
Versus
State of Himachal Pradesh and Others	…....Respondents

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Coram

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Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?

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For the Petitioner: Mr. Sunil Mohan Goel, Senior Advocate, with Mr. Paras Dhaulta, Advocate.

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For the Respondents: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General, with Mr. Ravi Chauhan, Deputy Advocate General, for State.

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Sandeep Sharma, J. (Oral)

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By way of present writ petition, petitioner has prayed for

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following main relief:

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“ a) That this Hon’ble Court may be pleased to issue writ of mandamus directing the respondents to immediately release the 1^st & Final Bill of the work done as prepared by the Assistant Engineer, Nankhari i.e. respondent No. 4 (Annexure P-3) and Memorandum of Payment (Annexure P-4) as prepared by the Executive Engineer (B&R) Division Rampur Bushahr amounting to Rs. 40.00 lacs alongwith commercial rate of interest @ 12.75%.”

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Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Sunil Mohan Goel, learned Senior Counsel representing the petitioner is that though petitioner herein has successfully completed the work of

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construction awarded to him vide letter 15.09.2023, for an amount of Rs.54,45,812/-, but yet he is not being paid amount due to him. To substantiate factum with regard to completion of work as well as preparation of final bill, Mr. Goel, learned Senior Counsel representing the petitioner specifically invited attention of this Court to Annexures P-3 and P-4, perusal whereof clearly reveals that Site Engineer, after being satisfied with the quality of work done by petitioner, prepared final bill amounting to Rs.51,46,186/- in the month of March, 2024, however, except a sum of Rs.9,71,738/-, which was released in the month of October/November, 2024, remaining amount of Rs.40.00 lacs is not being released, on one pretext or the other. In terms of afore final bill prepared and verified by Assistant Engineer, the Executive Engineer, HPPWD, though authorized payment for sum of Rs.40,00,000/-, but till date, amount has not been credited in the bank account of the petitioner.

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Vide order dated 19.12.2024, this Court had specifically called upon learned Additional Advocate General to ascertain that why despite there being completion of work, amount is not being released. Vide aforesaid order, this Court had further called upon respondents/State to file short reply affidavit within one week specifically detailing therein reasons for non-release of payment in favour of the petitioner, despite his having completed the work. Neither short reply has been filed nor amount has been released.

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Mr. Vishal Panwar, learned Additional Advocate General, on instructions, states that Site Engineer after being satisfied with the quality of work, has already prepared the final bill, but on account of paucity of funds, amount has not been released till date. He states that Public Works Department has already taken-up the matter with the Government of Himachal Pradesh for release of funds and as and when funds are made available, bill submitted by the petitioner shall be cleared.

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Though in the case at hand, no reply has been filed, but taking note of averments contained in the petition, which is duly supported by way of an affidavit, as well as documents annexed therewith, coupled with the fair statement given by learned Additional Advocate General, this Court finds that petitioner herein has already completed the work and department, after being satisfied with the quality of work, has already prepared the bill, if it is so, amount to which petitioner is entitled, as indicated in the final bill, deserves to be released.

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Though it is not in dispute inter se parties, that in terms of agreement arrived inter se parties, dispute if any, qua non payment of bill is to be adjudicated by the arbitrator, if any, appointed with the consent of parties or as per direction issued by the Court under Section 11 of the Arbitration and Conciliation Act but once there is no dispute qua the liability of the respondents and as of today,

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Rs.42,87,250/- is payable to the petitioner, this Court sees no impediment in considering the prayer of the petitioner while exercising power under Article 226 of the Constitution of India. Aforesaid issue has already been settled by the Hon’ble Apex Court in ABL International Ltd. Vs. Export Credit Guarantee Corpn. of India Ltd. (2004) 3 SCC 5553, whereby Hon’ble Apex Court has categorically held that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit, rather, in writ petition, if the facts require, even oral evidence can be taken. Crux of the aforesaid judgment is that writ Court has jurisdiction to entertain writ petition, where disputed questions of facts exist and there is no absolute bar for entertaining writ petition if the same arises out of contractual obligations or involves disputed question of facts. Relevant paras of judgment supra, are reproduced herein:

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“19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Smt.Gunwant Kaur (supra), this Court even went to the extent of holding that in a writ petition, if facts required, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out

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of a contractual obligation and or involves some disputed questions of fact.

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27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition :-

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(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

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(b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

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(c) A writ petition involving a consequential relief of monetary claim is also maintainable.”

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In the aforesaid judgment, it has been categorically held

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that in appropriate cases, a writ petition against State or instrumentalities of State, arising out of contractual obligation is maintainable even if some disputed questions of facts arise for consideration.

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Hon'ble Apex Court, while placing reliance on ABL International supra, reiterated in Food Corporation of India v. SEIL Ltd. (2008) 3 SCC 440, that the matters involving public law elements, are amenable to writ jurisdiction. Relevant paras of the aforesaid judgment are reproduced herein under:

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“21. Jurisdiction of the High Court to entertain a writ application involving contractual matter was considered by a Bench of this Court in ABL International Ltd. & Anr. v. Export Credit Guarantee Corporation of India Ltd. & Ors. [(2004) 3 SCC553] wherein upon referring to a large number of decisions, it was held :

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"23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the

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requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent."

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22. Reliance placed by Mr. Sharan on M/s. Burmah Construction Company v. The State of Orissa & Ors. [AIR 1962 SC 1320] is not apposite. Claim made therein was a pure money claim. It was in that situation observed that the High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract to pay an amount of money due to the claimant.

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23. Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved. 24. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity.

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25. We do not, thus, find any substance in the contention of Mr. Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of Review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (An act of the courts shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents.”

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High court of Andhra Pradesh had an occasion to deal

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with similar facts as exist in present case while rendering judgment dated 22.3.2022 in Writ Petition No. 2511 of 2022. In the said

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judgment, High Court of Andhra Pradesh held that when the State or its instrumentalities failed to act legally within reasonable period to make payment to the petitioner for the works executed by her and infringed the fundamental rights of the petitioner, the Writ Court is having jurisdiction to entertain the claim of the petitioner and as such, this Writ Petition is maintainable. High Court of Andhra Pradesh, while returning aforesaid finding also placed reliance upon judgment rendered by Hon'ble Apex Court in ABL International supra. Relevant para of the aforesaid judgment is reproduced herein below:

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“13. This Court opine that when the State or its instrumentalities failed to act legally within reasonable period to make payment to the petitioner for the works executed by her and infringed the fundamental rights of the petitioner, we hold that the Writ Court is having jurisdiction to entertain the claim of the petitioner and as such, this Writ Petition is maintainable.”

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Leaving everything aside, this Court finds that it is none of the case of the respondents that at present, there is dispute, if any, inter se parties on account of non-execution of the work at site by the petitioner, rather, it has been fairly admitted by the respondents that work stands executed on the site. Since it is not in dispute that sum of Rs.40.00 lacs is payable to the petitioner, prayer made on behalf of the petitioner in the instant petition deserves to be allowed. Nonavailability of funds cannot be a ground for not releasing the due and admissible claim of the petitioner.

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Consequently, in view of the above, present petition is allowed and respondents are directed to release the sum of Rs.40.00 lacs, in terms of Annexure P-4, expeditiously, preferably, within a period of three months and thereafter, respondents shall be liable to pay interest @ 6% per annum, on the amount due to the petitioner.

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In the aforesaid terms, petition stands disposed of, along with pending applications, if any.

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January 07, 2025 Rajeev Raturi

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(Sandeep Sharma),

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Judge

Rahul Bisht v. the State of Hp and Others

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Rahul Bisht v. the State of Hp and Others

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