'x ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petltion (0 No.7192 of 2008 PETITIONER: Jagdish Prasad Agrawal, S/o Chhaganiai Agrawal, Aged about 65 years, R/o 13, Alkapuri, Alwar (Rajasthan) Versus RESPONDENTS: 1. 3. 4. State of Chhattisgarh, Through the Secretary, PubElc Works Department, D.K.S. Bhawan, Mantraiaya, Ralpur (CG) The Chief Englneer, Public WorRs Department, Sirpur Bhawan, Rajpur (CG) The Superintending Englneer, PubSic Works Department, Durg Clrcie, Durg, District Durg (CG) Jhe Executjve Engineer, Pubiic Works Department, Khairagarh, District Rajnandgaon (CG) Present: Shri Ashish Shrivastava, counse! for the petitioner. Shri Sumesh Bajaj, Govt. Advocate forthe State/respondents. DivisJGn Bench: Hpn'ble Shrj Dhirendra JVIishra & Hon'ble Shri R.SM. Chandrakar. JJ. ORDER (9-2-2010) The foiiowlng- order ofthe Court was passed by Dhjrendra Mlshra, J. 1. The petitioner by the instant petition'has prayed for a directson to the respondents to release the payment of Rs.14,84,240/-, ba!ance amount due and payable to the petitjoner Sn respect of 3 different agreements between the petltioner and the Pubilc Works Department in relatlon to work of road repairs etc.. ri^T .•^^.»^»»^^^»^,^ 2, The grlevance of the petitioner is that the petitloner successfulty completed the workagainst 3 agreements. The work done by him was duiy recorded and certified by the engineers of the respondents in the measurement book. He submitted final bilis agatnst ail the 3 agreements, however, he was served w'rth a notlce of Annexure-P/4 dated 20-9-2004 tssued by the Executlve Engineer proposing recovery of excess amount of Rs.53,08,901/- on the ground that on technical examinatjon of the works under agreement, quality of bitumen supplied by the pe^ltloner was of inferior quaiity. On due consideration of rep!y of the petitioner, the Executlve Engineer vide his memo dated 15-2- 2006 (Annexure-P/5) apprlsed to the Superintending Engineer that on!y Rs.2,93,758/- is llable to be adjusted against the security deposit. The decision of the Executive Engineer was communicated by the Superintending Engineer to the petitioner. 3. The Executive Englneer vlde his repiy to the iegai nottees cumulative fiied as Annexure-P/6 decided the dlspute on behalf of the Superintendlng Engineer that the security deposit, earnest money etc cannot be refunded till the matter Is finaily dedded by the State Government. . . 4. On appeai preferred by the petitioner, the Chief Engineer vide his order dated 11-6-2007 relterated the ground given by the Executive Englneer for wlthholding the amount due to the petitioner. The petitioner dld not approach the State Government by way of fsllng appeai and awaited the decision of the State Government in thls regard. However, he addressed various representatlons (Annexure-P/8) to the respondents. FlnaJiy the Chief Engineer vlde his memo addressed to the Executive Q^> Englneer dated 2nd September, 2008 (Annexure-P/10) set asids the proposed recovery agalnst the petitloner. The order of Annexure-P/10 was issued by the Chief Engineer after due enquiry. 5. Shri Ashlsh Shrivastava, learned counse! for the petitioner submitted that the objection of the respondents with respect to the malntainabjlity of the petitlon is devoid of any substance. The Chief Engineer, after due enqulry, has held that no enquiry is due from the petitloner and thus, there is no dlsputed question of fact which requires adjudication and the questson for refemng the dispute to the arbitrator for adjudicatlon also does not arise. The order dated 19-9-2008 (Annexure-R/1) of ths State Government is arbitrary and sn vioiation of Artide 14 ofthe Constitution, Reliance is pSaced In the matter of Food Corporation of india & Anr. Vs. Mfs Seit Ltd., & Ors. {AIR 2008 SUPREME COURT 1101}. r 6 On the other hand, Shri Sumesh Bajaj, learned counse! for the State/ respondents has raised preliminary objection regarding malntainabllity of thls writ petltion on the ground that the petitioner has prayed for a dlrection to the respondents to pay a sum of Rs.14,84,240/- being bsiance amount due to the petjtioner arising out of 3 contract agreements. There is no public element invoived in this writ petition. it is pureiy a contractual dispute between the parties to the agreement. Approprlate remedy to the petitloner woujd be by filing a civii suit for recovery before the competent civil Court. He further submitted that clause-29 of the agreement provjdes for adjudication of the dispute arising out of the agreement through arbitration and It is open to the petltioner to resortto dause-29. %uw'v ,.r: ""'f' : ^ ^° "^pi--.^ 1»»«»1»,, 7. Referring to the order of Annexure-R/1 dated 19-9-2008 of the State Government, it was submitted thst It was brought to the notice of the Government that the provisions of clause-37 of the agreement are not being implemented by the Chief Engineers while declding the recovery matters and, therefore, a committee under the Chairmanship of Shri B.S. Gupta has been constituted to examine the matt.er and execution of the final order passed by the Chlef Engineers has been stayed wSth immediate effect. It has been speclfica!Ey mentioned in the said order that the Chlef Englneers before issulng fina! order under CJause-37 of the agreement shaji obtaln concurrence from the Engineer-ln-Chief. 8 In the instant case aiso, Initiaily recovery for a sum of Rs.53.08,901/- on account of suppiy of Inferior quaSity of bitumen (Koltar) was proposed, the same was subsequently reduced to Rs.2 lakhs and thereafter the Chief Engineer finaiiy held that no amount Is recoverable from the petitioner. The petitioner has not impugned the order of Annexure-R/1 and since the State Government has stayed executlon of the order passed under Clause-37 of the agreement of alj the Chief Engineers, the order of Annexure-P/10 passed by the Chief Engineer aiso stands stayed and, therefore, no direction, as prayed for by the petltioner in the instant petltion, can be issued. 9 We have heard Seaned counseS for the parties. 10. !n the matter of M!s Seil Ltd. (Supra), the respondent/petltioner supplied sugar to the Food Corporation of India during the period 1983 to 1995. The FC! withheid the payment on the ground of shortages in supply of sugar during the aforesaid period. Learned SingEe Judge, in ^3SKS^ ^^. ^' u ^ K^ ^ "A ^ ...^ -.^to.^^^*^,^.^^^., ^. respect of supplies macte to the FCI, heid that any resoiutlon settlng the controversy was impermlssible in a writ proceeding and the respondents were relegated to the remedy of a civil suit for recovery of the amount ciaimed by them. The Hon'bie Supreme Court, consjdering that supplles have been made as per the circufars issued by the Central Government through railways; any shortage found during transit in terms of the poiicy decision of the Centrai Government ought to have been raised by the FCI wlth the Railways authorlties, in this factua! scenario, observed thus:- "10.XXXX XXXX XXXX xxxx xxxx xxxx It is now no longer res integra that contractual disputes snvolving pubilc law element are amenable to writ jurisdiction. in these cases, the Central Government not only scrutinized the bllls but also verified the ciaims of the respondents. A direction was issued to make payment. Appeliant, whlch is a 'State' w'rthln the meaning of ArticSe 12 of the Constitution of indla, withheid payment without any legai justificatjon." 11. However, in the instant case; the State Govemment considering the complaint regarding improper exercise of clause-37 of the agreement by its Chief Englneer in passing the order in the matter of recovery decided to stay execution of al! such orders and constituted a commsttee to examine the matter. It has been specificaily mentioned in this order that the Chief Engineers may examine the pending matters after hearing the partses, however, the orders were to be passed only after apprising the Englneer-in-Chlef and wlth their concurrence. The aforesaid order has not been chailenged by the petitioner in this ^-^;,, ^T^.. t!^ -.L^ petition. St is also not in dispute that in clause-29 of the agreement, a complete procedure has been provided. 12. SVIoreover, It is settted iaw that ordinariiy remedy for breach of contract Is suit for damages. i3.Sn vlew of the above, we do not find any pubiic !aw eiement In the present controversy and present is not a fjt case where extraordinary jurisdictlon under Artide 226 of the Constitution of india shouid be invoked in the facts of the present case. 14. Sn the result, the petition being devoid of any substance, deserves to be dlsmissed and it Is hereby dismissed. Sd/- Dhirendra Mishra Judge Barve Sd/- R.N. Chandrakar Judge