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Judgment
HARISH TANDON, CJ.
The solitary point involved in the instant writ petition is whether the opposite parties No.2 to 5 can withhold the just dues of the petitioner without any reason or rhyme; in other words, whether the authorities can withhold the payment of an amount due payable to the contractor for years together without raising any objection to such entitlement.
The undisputed facts discerned from the record reveal that the opposite parties No.2 to 5, being the central public sector enterprise owned by the Government of India under the Ministry of Jal Shakti, floated a tender for “providing architectural services for development of playfields at DN College Ground and residential quarters at Chiplima, Balimela and Upper Indravati Hydro Project for Odisha Hydro Power Corporation (OHPC) in Odisha”.
The petitioner was awarded the contract having quoted the lowest price and executed the work as entrusted upon him. After completion of the assigned work, the bills were submitted for a sum of Rs.16,60,809/- with the opposite party No.5, i.e., the Chief Engineer, WAPCOS Limited, but there appears to be a complete apathetic approach on the part of the said authority in releasing the above amount.
The correspondences were made at the behest of the petitioner reminding the authorities of their liability to make the payment, yet those correspondences remained unattended as the opposite parties did not pay any heed to it. The petitioner, thus, was constrained to move this Court with the instant writ petition seeking a direction upon the opposite parties No.2 to 5 to release the said amount together with an interest as the said amount was unjustly withheld and encroached upon the legal rights accrued to the petitioner.
On the last occasion, the matter was adjourned, as the opposite parties No.2 to 5 were to be noticed and the service of notice was effected upon Mr. Anish Ankur Mishra, learned counsel, who sought time to take appropriate instructions. The matter is taken up today. It is submitted by Mr. Soumya Jyoti Biswal, learned counsel appearing on behalf of Mr. Mishra, learned counsel for the opposite parties No.2 to 5 that the authorities have engaged him and he would be filing his Vakalatnama in the near future.
A plea has been taken by Mr. Biswal that the writ Court should not interfere with such prayer and the parties must be relegated to another appropriate forum. We may appreciate such contention, had there been a complex issue involved in adjudication of the dispute by adducing evidence both orally and documentary but, in the event, the Court finds that there is no dispute to the entitlement nor a single scrap of paper is forthcoming which would remotely suggest the complexity of the issue in this regard, it would be sheer idle exercise to relegate the parties to another forum.
There is no fetter on the part of the Constitutional Court in exercising the extra-ordinary powers enshrined under Article 226 of the Constitution of India, despite there being an alternative efficacious remedy available. It is based on the rule of discretion than of compulsion. The writ Court shall not relegate the parties to exhaust the remedy, if the rights accrued to the parties are crystal clear and the proceedings can be conveniently disposed of on the basis thereof.
We are conscious of the proposition of law that ordinarily the writ Court should not interfere with the writ petition seeking an order for payment of money based on contract. But there is an exception to it as in the event the Court finds that there is no dispute to such entitlement, there is no absolute embargo created in law in extending such benefit to a person whose entitlement was overshadowed by the executives.
The Apex Court, in the case of Suganmal v. State of M.P., reported in AIR 1965 SC 1740 in unequivocal terms, held that the writ petition to enforce the money claim may not be maintainable but subsequently, the Supreme Court, in the case of Godavari Sugar Mills Limited v. State of Maharashtra, reported in (2011) 2 SCC 439, after taking into account the said judgment rendered in Suganmal (supra), held that there is no fetter on the part of the writ Court to entertain the writ petition seeking refund of the money illegally withheld in the following:-
“(i). Normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers. (Vide Burmah Construction Co. v. State of Orissa.)
(ii). If a right has been infringed-whether a fundamental right or a statutory right and the aggrieved party comes to the Court for enforcement of the right, it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law. (Vide State of M.P. v. Bhailal Bhai.)
(iii). A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money. (Vide Suganmal v. State of M.P.)
(iv). There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment, etc. While a petition praying for mere issue of a writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition. (Vide Salonah Tea Co. Ltd. v. Supdt. of Taxes.)
(v). It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. (Vide U.P. Pollution Control Board v. Kanoria Industrial Ltd.)
(vi). Where the lis has a public law character, or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. (Vide Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.)”
In a subsequent decision rendered by the Apex Court in case of Surya Constructions v. State of Uttar Pradesh, reported in (2019) 16 SCC 794, it is held that in the event, the Court finds that the State behaves capriciously and/or arbitrarily in withholding the amount arising from a contract, there is no fetter put in the High Court to entertain the writ petition in the following:-
“3.It is clear, therefore, from the aforesaid order dated 22-3-2014 that there is no dispute as to the amount that has to be paid to the appellant. Despite this, when the appellant knocked at the doors of the High Court in a writ petition being Writ Civil No. 25216 of 2014, the impugned judgment dated 2-5-2014 [Surya Construction v. State of U.P., 2014 SCC OnLine All 6071] dismissed the writ petition stating that disputed questions of fact arise and that the amount due arises out of a contract. We are afraid the High Court was wholly incorrect inasmuch as there was no disputed question of fact. On the contrary, the amount payable to the appellant is wholly undisputed. Equally, it is well settled that where the State behaves arbitrarily, even in the realm of contract, the High Court could interfere under Article 226 of the Constitution of India (ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd. [ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553])”
In view of the law enunciated in the above reports, it is no gainsaying that the writ petition for recovery of an amount due and payable to a citizen of the country by the State or its instrumentality is maintainable, provided there is no dispute raised over it. The Court cannot remain a mute spectator even after noticing that the action of the authority or its instrumentality has impacted the rights of a person, either arising from the statute or a contract and may invoke its power enshrined under Article 226 of the Constitution of India.
The fact reveals that no dispute is ever raised by the opposite parties-authorities in response to the letters issued to them by the petitioner. The authorities unjustly enriched upon the rights of the petitioner and such action can be perceived as arbitrary and/or colourable exercise of the power, which is not expected from such authorities to act in such fashion.
We, thus, allow the writ petition.
The authorities-opposite parties No.2 to 5, each of them jointly or separately, are directed to pay the said sum of Rs.16,60,809/- to the petitioner within four (04) weeks from the date of communication of this order together with an interest @ 6% to be reckoned from expiration of one month from the date of submission of the bills till the actual payment.