THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No. 31794 of 2010 Date: 19.12.2011 Between: NCC-IVRCL –SMS (JV), a Joint Venture entity of M/s. Nagarjuna Construction Company Ltd., IVRCL Infrastructures & Projects Limited and M/s. SMC Infrastructures Private Limited, Rep., by its Authorised Representative, Hyderabad. … Petitioner And Andhra Pradesh Industrial Infrastructure Corporation Ltd., Hyderabad and 2 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No. 31794 of 2010 O R D E R : The A.P. Industrial Infrastructure Corporation Limited (for short ‘APIIC’) floated a tender inviting bids for execution of the work namely “Somasila Drinking Water Supply Scheme – Manufacturing, supplying, lowering, laying, jointing, testing and commissioning of 1500mm dia MS Gravity main with cement mortar factory in lining and outcoating and other appurtenances from Proposed Sump at Kannumalonipalli (on Kadapa –Rajampet Highway) to Proposed Sump at Kadapa SEZ including Manning & Operation for a period of 24 months (defect liability period) –Package-II”. In response to the same, the petitioner submitted its bid. Having found it to be more suitable, the work was awarded to the petitioner and accordingly an agreement dated 24.09.2008 was entered into between the petitioner and the APIIC. Pursuant thereto, the petitioner claims to have completed more than 35% of the work. It is alleged that while the further work was in progress, the Officials of APIIC asked the petitioner not to proceed further and in spite of repeated requests, the petitioner was not permitted to resume the balance work. That apart, the running account bills submitted by the petitioner for the work already completed were kept pending resulting in non payment of about Rs.23 crores against the outstanding bills submitted from time to time. The petitioner made several representations, including the representation dated 11.11.2010 requesting the APIIC to release the payments with interest against the outstanding running account bills and to give permission to complete the balance work. As the respondents failed to respond, the present writ petition is filed seeking a declaration that the action of the respondents in not passing any orders on the representations of the petitioner is arbitrary and illegal. In the counter-affidavit filed on behalf of the respondents while denying the allegations made by the petitioner it is stated that the petitioner had stopped the work on its own accord and that the petitioner had also removed the men and machinery from the site. It is further explained that the work done by the petitioner as on the date was not more than 31% and that the APIIC never instructed the petitioner not to proceed with the work. It is further contended that the writ petition itself is not maintainable inasmuch as the same arises out of a non-statutory contract in relation to a commercial transaction. I have heard the learned counsel for the both the parties and perused the material available on record. Admittedly APIIC is an Undertaking wholly owned by the Government of A.P. and its action should be fair and just. However, the agreement dated 24.09.2008 entered into between the APIIC and the petitioner is a non-statutory contract, the terms and conditions of which are not regulated by any statute. It is also apparent that the said agreement was not executed under Article 299 of the Constitution of India. In the light of the said undisputed facts, the learned counsel appearing for APIIC at the outet raised an objection as to the maintainability of the writ petition under Article 226 of the Constitution of India. However, relying upon the decision of the Supreme Court in ABL International Ltd., v. Export Credit Guarantee Corporation of India Ltd.[1] and the decision of this Court in IBC Knowledge Park Pvt. Ltd., v. HUDA, Secunderabad[2], the learned counsel for the petitioner vehemently contended that the petitioner cannot be driven to civil Court merely on the ground that the dispute arises out of a contract. It is true that in ABL International’s case (1 supra) it was held that even in a matter of contract an aggrieved party can invoke the writ jurisdiction under Article 226 of the Constitution of India if in the facts and circumstances of a case it is found that the State or an instrumentality of the State acted in an arbitrary manner. It was also held that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably in its contractual obligations or if it acts contrary to the Constitutional guarantee found in Article 14 of the Constitution of India, a writ can be issued to set right such arbitrary action. However, it was further made clear in the above decision itself that having regard to the facts of the case, the High Court has discretion to entertain or not to entertain a writ petition and that the relief to be granted depends on the facts and circumstances of the case. Coming to the case on hand, where as the petitioner claims that it was abruptly directed by APIIC to stop the work and no reasons were assigned for the same, it is contended by APIIC that the petitioner had abandoned the work on its own accord. It is relevant to note that Clause-61 of the agreement dated 24.09.2008 specifically deals with a situation where the work was suspended by the contractor on his own. That apart Clause 73 provides for arbitration in case of any dispute or difference between the parties to the contract. As noticed above, there is a serious dispute between the parties with regard to the circumstances under which the work was discontinued. Consequently, the entitlement of the petitioner for the outstanding amounts against the running account bills is also in dispute. Admittedly the petitioner’s representation dated 11.11.2010 is for release of payments against the bills submitted by it. Thus it is nothing but a money claim. Since the very entitlement of the petitioner for the amounts claimed is in dispute, no Mandamus can be issued as prayed for. The agreement entered into between the parties contained various provisions for settlement of disputes and therefore, if aggrieved, it is for the petitioner to avail the said remedies for redressal of its grievance. Viewed from any angle, the relief as prayed for cannot be granted in exercise of the jurisdiction under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed. However, this shall not preclude the petitioner to avail the alternative remedies available under law for redressal of its grievance. No costs. ______________ G. ROHINI, J Date: 19.12.2011 KLP/GBS [1] 2004 (3) SCC 553 [2] 2010 (3) ALD 659