IN THE HIGH COURT OF JUDICATURE AT PATNA LETTERS PATENT APPEAL No.1550 of 2009 IN CWJC 2898 of 2004 WITH I.A. NO. 7992 of 2009 IN LETTERS PATENT APPEAL No.1550 of 2009 ========================================= BISHWANATH SINGHL S/O LATE MATHURA SINGH R/O VILL- BARASHANKAR, P.S- PATAHI, DISTT- EAST CHAMPARAN Versus 1. THE STATE OF BIHAR THROUGH SECRETARY ROAD CONSTRUCTION DEPARTMENT, PATNA 2. CHIEF ENGINEER NATIONAL HIGHWAY PATNA 3. SUPERINTENDING ENGINEER NATIONAL HIGHWAY DIVISION MOTIHARI, EAST CHAMPARAN 4. THE UNION OF INDIA THROUGH MINISTRY OF SURFARAS TRANSPORT THROUGH ITS SECRETARY NEW DELHI ========================================== Appearance: For the Appellant: Mr. Basant Kumar Choudhary, Sr. Advocate Mr. Manoj Kumar, Advocate For the Respondent nos. 1 to 4: Mr. Prabhakar Tekriwal Mr. Alok Kumar For the Respondent nos. 5, Union of India : Mr. Sarva Deo Singh ========================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 04. 09.09.2010 This Appeal under Clause 10 of the Letters Patent was initially filed against the order dated 10th November 2005 made by the learned Single Judge in C.W.J.C. No. 2898 of 2004. The writ petition was dismissed on the ground of disputed questions of fact 2 which could not be resolved in a writ petition. Feeling aggrieved the writ-petitioner (the appellant herein) preferred Letters Patent Appeal No. 606 of 2006. The Appeal was withdrawn on 5th December 2007 with a view to filing Civil Review application before the learned Single Judge. The Civil Review No. 175 of 2008 was dismissed by the learned Single Judge on 5th August 2009. The present Appeal was filed on 8th December 2009. Thus the Appeal was filed three years and 293 days beyond the period of limitation. When the matter came up for hearing before this Court (Coram: Shiva Kirti Singh, ACJ. & Shyam Kishore Sharma, J.) on 19th December 2009, the learned advocate appearing for the appellant gave up challenge to the impugned order dated 10th November 2005 made on C.W.J.C. No. 2898 of 2004 and confined the challenge to the order dated 5th August 2009 made on Civil Review No. 175 of 2008. It appears that the impugned order is dated 5th August 2009. The Appeal was filed within the period of limitation. Therefore, there is no delay in filing this Appeal. Order accordingly. Interlocutory Application No. 7992 of 2009 made under Section 5 of the Limitation Act stands disposed of. Learned Advocate Mr. Basant Kumar Choudhary appears for the appellant. He has submitted that the writ petition was dismissed on the ground that the petition raises disputed questions of fact. The very observation was an error apparent on the face of the record. He has submitted that the appellant is a 3 Civil Contractor. He had been engaged for repair of the National Highway No. 28, Division-Motihari for agreed sum of Rs. 4,99,418/-. Admittedly the work had been completed by the petitioner to the satisfaction of the authorities. Nevertheless, the payment has been withheld on the grounds extraneous to the contract. He has submitted that the reasons for withholding the payment as indicated in order dated 1st September 2003 (Annexure-1) were internal matters of the Department with which the appellant was not concerned. There is no dispute in respect of the tender process, the work order granted to the appellant, the completion of the work to the satisfaction of the authorities and the amount claimed by the appellant. There was no reason to withhold the payment. The petition did not raise disputed questions of fact. The learned Single Judge ought to have entertained the Review application and allowed the writ petition. The learned advocate Mr. Prabhakar Tekriwal appears for the respondent authorities. He has narrated the reasons for withholding the payment to the appellant. He has submitted that the concerned Engineer had committed irregularity in awarding the contract for undertaking the repair works. The award of the work order was beyond his jurisdiction. He has further submitted that the Officers concerned failed to carry out the inspection or verify the measurement book. The main page of the agreement had not been signed by the Executive Engineer. Ordinarily the petition under Article 226 of the 4 Constitution would not be entertained in contractual matters or for money claim. But, in the present case, it appears that the appellant has been dealt with arbitrarily with oblique motive. Though there is no dispute about the work order awarded to the appellant, the final bill given by him, the quality of the work done by him etc., he has been denied the due payment for make-believe drawbacks of which the appellant could not have any knowledge. We, therefore, entertain this Appeal and allow the same. We direct the respondent no. 4 and also the State authorities to make the payment to the appellant against the final bill raised by him within three months from today. In the event the payment is not made by 31st December 2010, the appellant will be entitled to interest at the rate of 10 per cent per annum commencing from 1st January 2011 till the payment. The Appeal stands disposed of. S.Sb/- (R.M. Doshit, CJ.) (Jyoti Saran, J.)