Deputy Chief Secretary, Health, Education & Family Welfare Depart. Govt. of v. Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P(C) No. 6668 of 2022 ... M/s. Akhand Jyoti Petitioner ... ... 1. State of Jharkhand 2. Deputy Chief Secretary, Health, Education & Family Welfare Depart. Govt. of Versus Jharkhand 3. Secretary, Building Construction Depart. Govt. of Jharkhand 4. Chief Engineer, Building Construction Department, Govt. of Jharkhand 5. General Manager(Project)-cum-Executive Director, Jharkhand State Building Construction Nigam Ltd. Building Division, Building Construction Depart. Govt. of Jharkhand 6. The Executive Engineer-cum-Manager, Jharkhand State Building Construction Corporation Ltd. Sahibganj 7. Executive Engineer, Jharkhand State Building Construction Corporation, Santhal Pargana, Dumka 8. Managing Director, Jharkhand State Building Construction Corporation Ltd. Govt. of Jharkhand … … ... Respondents CORAM:
Legal Reasoning
SRI SANJAYA KUMAR MISHRA, C.J. SRI ANANDA SEN, J. --------- For the Petitioner: For the Resp. Nos. 5 & 6: Mr. Khalida Haya Rashmi & Zeeshaw Ahmad Khan, --------- Mr. Nand Kishore Pd. Sinha, Advocate For the State: 04/Dated: 7.08.2023 Advocates Mr. Aditya Raman, AC to GA-III --------- Upon hearing the learned counsel for the parties, this Court passed the following, (Per. Ananda Sen, J.)
Decision
ORDER 2. 3. Heard the parties. The petitioner by filing this application under Article 226 of the Constitution of India has prayed for payment of Rs.37,49,901/- which was deducted from his final bill. He also prayed to quash the letter dated 20.09.2022 whereby the decision of deduction was intimated to him taking a ground that there was no extension of time granted to the petitioner to conclude the work, thus the same amount has been deducted. 4. The petitioner is a contractor and was undertaking building construction work. He was allotted a work to construct school and hostel building on 29.07.2013. An agreement was entered into by the parties and according to which the construction was to be completed by 16 months. It is his contention that he has completed the work on 25.11.2017. The petitioner claims that though he has completed the work but Rs. 37,49,901/- was deducted from the final bill as also the security money i.e -2- 8% of the construction value was not paid, thus he approached this Court by filing a writ petition being W.P(S) No. 5343 of 2021. The learned writ court disposed of the said writ application giving a liberty to the petitioner to file a fresh representation before respondent no.5. Respondent no.5 disposed of the said representation by passing the impugned order dated 20.9.2022, extending reasons as to why the amount was deducted. Be it noted that the contempt application alleging contempt of the order passed in W.P (C) No. 5343 of 2021 was also dropped. 5. Learned counsel challenging the order impugned submits that since the work was completed by this petitioner, it was the duty of the respondents to pay the entire amount but they absolutely withheld the amount of Rs.37,49,901/- from the final bill as also the security money i.e 8% of the construction value. By doing so, they have committed grave illegality. Since the dues are admitted, he is entitled for the relief claimed. 6. Learned counsel for the State submits that none of the dues of the petitioner is admitted. Further a money claim arising out a contract should not be entertained in an application filed under Article 226 of the Constitution, rather the petitioner should have approached the Civil Court claiming relief as there are disputed question of facts. It is his case that there was delay in completing the work, thus liquated damages are attracted as per agreement. 7. After hearing the parties, we find that an agreement was entered into by the State and this petitioner on 29.07.2013. The construction work was to be completed within 16 months i.e by November, 2014. As per the petitioner, he has completed the work on November, 2017 which is apparent from his submission made before the writ court in W.P(C) No. 5343 of 2021 (earlier round of litigation). The State, as per Clause 49 of the Contract, deducted the security deposit upto, 10% of the contract value and the liquidated damage from the final bill. The reasons for deduction is that no time extension was granted either by the Engineering Cell or by the Authority i.e JSBCCL for completion of the project, as admittedly the completion was beyond the time schedule. Since the extension of time was not granted and as the petitioner could not complete the work within time, they had taken a decision to withhold the aforesaid amount. 8. The dues which the petitioner is claiming not admitted by the respondents. This Court in the case of Nitesh Kumar Singh Vrs. State of Jharkhand & Ors. passed in W.P( C) No. 4665 of 2018 has clearly held -3- that the writ application filed under Article 226 of the Constitution claiming admitted dues can be entertained if the dues are admitted. For the dues to be ‘admitted’ there must be a clear and specific admissions on part of the respondents binding them. There should not be any disputed question of facts. 9. In this case, we find that there are disputed questions of facts as the respondent submits that they have invoked Clause 49 of the Contract which is related to liquidated damage as there was no extension of time granted to the petitioner to conclude the work. The question, as to whether there was delay in concluding the work and who was responsible for it is a disputed question of fact which cannot be decided in this writ application. Oral and documentary evidence must be led in support of or opposing the contentions. Further we find that the respondents have not admitted the dues which the petitioner is claiming, thus the claim of the petitioner do not come within the realm of “admitted dues”. 10. Considering the fact that the dues are not admitted and there are disputed question of fact, we are not inclined to entertain this application filed under Article 226 of the Constitution, the same is dismissed. 11. Petitioner is at liberty to approach the Civil Court of appropriate jurisdiction to seek the relief as claimed in the writ application. 12. All pending Interlocutory Applications stand disposed of. 13. No orders as to costs. 14. Grant urgent certified copy of this order as per the Rules. (Sanjaya Kumar Mishra, C.J.) N.A.F.R Anjali/ (Ananda Sen, J.)