IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWELFTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 17378 of 2005 Between: Bokka Sathi Reddy, S/o.Yadi Reddy, H.No.2-9-710, NGO's Colony, Hanumakonda, Warangal district. ..... PETITIONER AND 1 The Executive Engineer, R & B Division, Warangal division. 2 The Pay & Accounts Officer, SRSP/KC Colony, Hanumakonda, Warangal district. 3 The Superintending Engineer, R & B Circle, Warangal district. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate writ, order or direction more particularly in the nature of writ of mandamus declaring the action of respondents issuing Memo.No.AB/A2/2005-06/716 dt.4-7-2005 and taking steps to recover the alleged amount of Rs.78,555/- which was due to some other work concluded and completed during the year 2002 and pending payment of final entered in to agreement No.1/2005-06 dt.2-4-2004 of 3rd respondent herein without settling and taking explanation for such excess payment is illegal, arbitrary and violation of principles of natural justice through administrative discussion power, tender rules agreements and Article 14 and 19 of the constitution of india, consequently direct the respondents not to recover the alleged excess payment without settling regarding excess payment after fulfillment of due process of law particularly settlment of final bill of payment and pass such other order or orders. Counsel for the Petitioner:MR.KOONA REDDY ANJI REDDY Counsel for the Respondent No.: GP FOR ROADS & BUILDINGS The Court made the following : THE HON’BLE MS JUSTICE G.ROHINI W.P.NO.17378 2005 ORAL ORDER The petitioner herein is a registered Contractor. He was entrusted the work of improvements to road from Cheetakodur P.R. “X” road to Dasannagudem (via) Chowdaram & Madaram from Km.0/0 to 4/4 in Warangal District under Food for work scheme vide agreement dated.25- 01-2001 executed by the 1st respondent. The petitioner states that pursuant thereto though the entire work was completed, in spite of several requests made by the petitioner the respondents failed to make the payment. On the other hand by letter dated.01-03-2005 the respondents directed the petitioner to remit a sum of Rs.78,555/- alleging that excess payments were made to him as per the information received from the Pay and Accounts Officer, Hanumakonda. Thereafter the 1st respondent by memo dated.04-07-2005 informed the Deputy Executive Engineer R&B, Sub-Division Mulugu to recover the said amount of Rs.78,555/- from the payments due to the petitioner in respect of the another work entrusted to him under agreement dated.02.04.2005. Aggrieved by the action of the respondents this writ petition has been filed seeking a declaration that the action of the respondents in issuing a memo dated.04-07-2005 for recovery of the alleged amounts due from the petitioner in respect of the work concluded and completed under the agreement dated.25.01.2001 is arbitrary and illegal. The 1st respondent filed a counter-affidavit stating that the petitioner being a successful bidder was awarded the work of improvements to road from Cheetakodur P.R. “X” road to Dasannagudem (via) Chowdaram & Madaram from Km.0/0 to 4/4 in Warangal District under agreement dated.25-01-2001 for a sum of Rs.5,07,045/- @ 4.05% excess over the estimated costs. Pursuant to the final bills submitted by the petitioner, the Pay and Accounts Officer issued a cheque for Rs.2,67,163/-on 31-10-2002 duly withholding Rs.63,819/- for want of sufficient funds and Rs.37,852/- towards FSD. In the meanwhile, the petitioner gave a representation dated.20-02-2004 for waiver of the fine imposed and also to release the amounts withheld pleading that the entire work was completed within the time agreed. The said representation was transmitted to the 1st respondent by the 3rd respondent by endorsement dated.17-03-2004 and accordingly a detailed report was submitted on 16-05-2004. It is further stated that when the final bill was presented to the Pay & Accounts Office, it was found that a sum of Rs.78,445/- was paid in excess and therefore the memo dated.01-03- 2005 was issued for recovery of the said amount. Heard the learned counsel for both the parties. At the outset it is to be noted that the dispute raised by the petitioner in this writ petition is nothing but a money claim arising out of a non-statutory contract. The terms of the conditions of such a non-statutory contract cannot be enforced by invoking the extraordinary jurisdiction of this Court under Article.226 of the Constitution of India. Moreover the matter involves several disputed questions of fact which do not deserve consideration by this Court in exercise of writ jurisdiction. However the learned counsel for the petitioner points out that the representation made by the petitioner dated.20-02-2004 is still pending before the 3rd respondent and no decision has been taken till today. Though the fact that the petitioner made such a representation is not disputed in the counter, the subsequent memo issued by the 1st respondent dated.01-03-2005 and as well as the impugned memo dated.04-07-2005 did not refer to the same and nothing was stated as to the tenability of the petitioner’s claim. In the circumstances while leaving it open to the petitioner to work out the appropriate common law remedy as available under law for redressal of his grievance, the respondents 1 and 3 are directed to pass appropriate orders on the representation of the petitioner dated.20-02- 2004 if not already passed, as expeditiously as possible preferably within a period of eight(8) weeks from the date of receipt of this Order. The writ petition is accordingly disposed of. No costs. _____________ G.ROHINI,J 2ND December,2008 *TSNR