Pintoo @ Mukesh S/o Bhairam vs State of M.P.

This intra-court appeal has been filed against the order dated 11/01/2017, passed in W.P. No.7480/2015, whereby learned writ court refused to grant relief to the appellant/petitioner on the ground that the respondents have denied the claim of the appellant and, therefore, no direction can be made to release the additional amount. It is also held that the question involved in this writ appeal is disputed question of fact and the same cannot be decided under the proceedings of Article 226 of the Constitution of India.

Brief facts of the case that on 22/012/2010 Municipal Council, Jaora invited tenders for water transportation/water freightage in the municipal limits of Jaora, District - Ratlam to procure the requirement of drinking water in the events of crisis, limiting the last date of submissions of tenders upto 8/02/2010. The tender of the appellant was accepted and thereafter he entered into an agreement with respondent No.4 undertaking to supply/transport the same from his own sources in tankers of capacity of 12000 litres to the spots provided by municipal council on kilometre variation basis and the payment of these trips to be determined in accordance to Clause 10 of the agreement.

Learned counsel for the appellant has drawn our attention to the resolution/proceeding No.172 of the Municipal Council(Nagar Palika), which is at page 151 and 152 and

submitted that the Municipal Council be directed to pass an appropriate order on the basis of the proceedings and, thereafter, if they come to the conclusion that dues of the appellant is outstanding then the same may be directed to be paid within the specified time.

The case of appellant is that the respondent No.4 had deprived the appellant of his legitimate claims and same is withheld with the respondents without any reason.

Shri Mangal, leaned counsel for the respondent No.3 has submitted that appellant had failed to demonstrate any order specifying transportation of water by 24000 litre capacity tankers as per the instructions to supply more water in the event of crisis which were given to the appellant by Chief Municipal Officer, meaning thereby, instructions were issued to only supply more water and no specific order has been issued for supplying water from a tanker having capacity of 24000 and mode of payment for the same.

The appellant has claimed double amount as agreed in the contract which cannot be granted and the amount has to be computed and expenses has to be proved by oral and documentary evidence. These questions cannot be decided in a writ proceedings under Article 226 of the Constitution of India. The only remedy lie to the appellant is to file a civil suit. There is a delay of 5 years from the last payment and, therefore, to by-pass the hurdle of delay to file a civil suit, the writ petition was filed and prayed for dismissal of the writ appeal.

In the case of U.P. & Ors. Vs. Bridge and Roof Co. (India) Ltd.,(supra), the Apex Court has held that firstly, the contract between the parties is a contract in the realm of private law. It is governed by the provisions of the contract Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for Civil court as the case may be. whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not are all matters which cannot be agitated in or adjudicated upon in a writ petition.

If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the civil court, as the case may be according to law.

Accordingly, the writ petition filed by the appellant directing the Government to release a particular sum, which according to the appellant is payable to it under the contract, was wholly misconceived and was not maintainable in law.

On due consideration of the arguments of the learned counsel for the parties so also the fact that Rs.13,49,757/-, which the appellant is claiming is disputed by the respondents before the learned writ court as well as this court and that amount is not a undisputed amount and, therefore, the learned writ court has rightly dismissed the writ petition.

For these reasons, the writ appeal is dismissed. No costs.