Shri Leishangthem Ghanashyam Singh v. The State of Manipur & Ors

Heard Mr.Ch. Bimolchandra, learned counsel for the petitioner and Mrs. Ch. Sundari, learned Government Advocate for the respondents. W.P.(C) No.597 of 2019

This writ petition has been filed by the petitioner seeking direction on the respondents for payment of the undisputed bill amount for the execution of different contract works to the petitioner amounting to Rs.3,27,57,073/- within a stipulated period with interest of 18% per annum. The petitioner also sought direction for payment of compensation to him for causing monetary loss, injury and prejudice for failure of payment of the undisputed bills entitled to him in time.

Brief facts which gave rise to the filing of the writ petition are as follows: The petitioner is a registered contractor and he had executed many contract works of the Drainage and Sewerage Division of the Public Health Engineering Department and other Departments. The petitioner has been awarded with various contract works. The petitioner and the Executive Engineer of the Public Health Engineering Department had entered into different contract agreements for executing the works for the Drainage and Sewerage Division for an amount of Rs.3,27,57,073/-.

3.1. The petitioner had completed the different contract works within the stipulated time to the satisfaction of the authorities concerned as per the stipulated time given by the competent authority and also the execution of the works were duly checked and verified by the concerned authority. After completion of works, the petitioner submitted bills for W.P.(C) No.597 of 2019 payment. However, the bill amount of Rs.3,27,57,073/- payable to the petitioner has been left out by the Department due to oversight. Despite repeated requests made to the authority for payment of the undisputed bills, the authority has not paid any heed to pay the outstanding bills. In fact, the liability was duly admitted by the competent authority of the Public Health Engineering Department, Government of Manipur.

3.2. Several contracts in connection with different works were awarded to the other contractors and all those who have been awarded contract have duly executed and concluded their supply order and also paid with their respective bills. However, for the reasons best known to the respondents, the petitioner has not been paid with his due till date. The outstanding bills of the petitioner for the work executed have been duly admitted by the Executive Engineer.

3.3. According to the petitioner, it is not in dispute that the undisputed bills of the petitioner can be termed as a property of the petitioner within the purview of Article 300-A of the Constitution of India and the same cannot be forfeited from the petitioner without due process of law after conclusion of the contract works executed by the petitioner. Further, the question of attracting arbitration clause of the tender agreement does not arise, once the undisputed bills become the property of the petitioner. In W.P.(C) No.597 of 2019 other words, after the conclusion of the different contract works, the agreement clause of the relevant terms and agreement of the tenders are not attracted at the time of payment of the final bill.

3.

Since the respondents are statutory authorities within the purview of Article 12 of the Constitution of India, their conducts are expected to be fair and reasonable. In the instant case, they are expected to make immediate payment without any discrimination. Hence, being aggrieved with the discriminatory and arbitrary acts of the respondents in not settling the bills, the petitioner has filed the writ petition. Thus, a prayer is made to direct the respondents to settled the undisputed bills to the tune of Rs.3,27,57,073/- and also compensation for monetary loss and injury suffered by him.

4. Resisting the writ petition, the first respondent filed affidavit-in- opposition stating that the names of the work claimed by the petitioner are included the approved work programme. As per rules, financial/budget system is yearly basis and works have to be executed as per the yearly approved work programme and within the allocated budget of that particular year. Accordingly, funds are also released as per the approved budget on yearly basis. It is stated that the Department had already released full amount against the budget provisions of the relevant W.P.(C) No.597 of 2019 years of the Drainage and Sewerage Division to the Division concerned. Thus, it may be concluded that the responsibility of payment of any outstanding bills owed to the petitioner, if any for the alleged completed works lies with the Executive Engineer. The Department cannot take responsibility of any works executed beyond the approved work programme of the Department. Since the works executed by the petitioner are not approved by the State Government, all liabilities cannot be borne by the State Government.

The learned counsel for the petitioner submitted that the Public Health Engineering Department issued work orders to the petitioner for execution of various works and the same have been duly executed by the petitioner within the stipulated time. He would submit that for the execution the different contract works, an amount of Rs.3,27,57,073/- is outstanding to the petitioner and despite requests made by the petitioner, the respondents are evading to settle the said amount.

The learned counsel further submitted that the respondents have paid contract bills to several other contractors, however, the petitioner’s undisputed bills have not been paid till date. Hence, the petitioner has filed the instant writ petition seeking direction on the respondent to settle the undisputed bills to the tune of Rs.3,27,57,073/- with interest and also W.P.(C) No.597 of 2019 compensation for causing monetary loss and hardship for failure of the payment to the petitioner.

Per contra, the learned Government Advocate submitted that the list of works executed by the petitioner has been studied and checked by he authorities and on verification, it was found that some secondary sewer line and manhole construction were executed by the petitioner, which were part of the project sanction under secondary sewer network. The amount relating to the list of works executed by the petitioner which are part of primary and secondary sewerage network shall be paid from time to time subject to the availability of fund and satisfactory completion of works. For the remaining works claimed by the petitioner, the works are beyond the scope of Imphal Sewerage Project Phase-I and the option of payment can be considered only after re-examining the works. She would submit that work orders have been issued by the then Executive Engineer and executed by the contractor.

This Court considered the rival submissions of parties and also perused the materials available on record.

The first respondent in his affidavit-in-opposition stated that the names of the work claimed by the petitioner are not included in the W.P.(C) No.597 of 2019 approved work programme and as per rules the financial/budget system is yearly basis and works have to be executed as per the yearly approved work programme and within the allocated budget of that particular year. It is stated that the Department had already released the full amount against the budget provisions of the relevant years of the Drainage and Sewerage Division to the Division concerned. Thus, the responsibility of payment of any outstanding bills to the petitioner if any for the alleged completed lies with the Executive Engineer, Public Health Engineering Department, Drainage and Sewerage Division and the Department cannot take responsibility for any works executed beyond the approved work programme of the Department.

It is also stated by the first respondent in the affidavit-in- opposition that the works executed by the petitioner are not approved by the State Government and therefore, all liabilities cannot be borne by the State Government. Any liability, it must be admitted by the Chief Engineer and in the present case, the outstanding due has not been admitted by the Chief Engineer.

While it is the averments of the first respondent in the affidavit- in-opposition, the respondents 1 to 3 in their reply to the rejoinder dated

18.02.2022 have categorically stated that the list of works executed by the W.P.(C) No.597 of 2019 petitioner has been studied and verified and found that some secondary sewer line and manhole constructions which were executed by the petitioner are part of the project sanction under the secondary sewer network. That apart, the list of works executed by the petitioner, which are part of primary and secondary sewerage network, has been annexed with the reply, wherefrom, this Court finds that the petitioner had executed the following works: (i) Construction of manhole 5m depth 200mm thick at BD12 towards BD10 portion-I. (ii) Laying of lateral sewer line i/c construction of collection chamber at Thangal Bazar Southern Part-II. (iii) Laying of lateral sewer line i/c construction of collection chamber at Paona Bazar Northern Portion-II “01 to 07 & II “01 to 13. (iv) Laying of secondary line 200mm dia and lateral sewer line 150mm dia at 1st MR campus 1st and 2nd Leirak. (v) Laying of secondary line 200mm dia & lateral sewer line 150mm dia. Across Keisamthong Khul connecting to Manhole YY’10. (vi) Laying of secondary line 200mm dia and lateral sewer line 150mm across Sougaijam Leirak. (vii) Laying of secondary line 200mm dia and lateral sewer line 150mm across 1st MR Campus 3rd & 4th leirak. W.P.(C) No.597 of 2019 (viii) Demolition and relaying of RCC Primary Sewer line 1000mm dia at Lamphel BRTF Office for a length of. (ix) Demolition and relaying of RCC Primary Sewer line 1000mm dia at Lamphel Police Station opposite lane for a length of 80rm.

According to the respondents 1 to 3, the amount mentioned against the Annexure-I to the reply shall be paid from time to time subject to availability of fund and satisfactory completion of works. Further, in respect of other works listed out in Annexure-II to the reply, it is the say of the respondents 1 to 3 that the works are beyond the scope of Imphal Sewerage Project Phase I and the option of payment can be considered only after re-examining the works. Further, in paragraph 5 of the reply, the respondents 1 to 3 stated that work orders have been issued by the then Executive Engineer and executed by the contractor. Thus, according to the respondents 1 to 3, works orders issued to the petitioner have been executed by him and the works were completed. When such being the plea of the respondents 1 to 3, this Court is of the view that there had been outstanding bills due to the petitioner by the respondents.

Having issued work orders to the petitioner by the concerned authority of the respondents 1 to 3 and executed by the petitioner and also verified by the concerned authorities, failure on the part of the respondents W.P.(C) No.597 of 2019 to pay the respective undisputed bills would amount to failure on the part of the respondents to discharge their duties. In fact, the respondent authorities are duty bound to settle the undisputed bills. The petitioner has also listed out the liabilities in Annexure-I to the writ petition to the tune of Rs.3,27,57,073/-.

The first respondent cannot contend that the Department cannot take responsibility for the works executed beyond the approved work programme of the Department and some works executed by the petitioner are not approved by the State Government. Merely because some of the works were not approved by the State Government, it cannot be contended that the State Government is not liable for the outstanding bills. Though the first respondent the Commissioner/Secretary of Public Health Engineering Department, the Chief Engineer of Public Health Engineering Department and the Executive Engineer, Drainage and Sewerage Division, Public Health Engineering Department have been impleaded as party respondent and the petitioner has executed the work for the Public Health Engineering Department. Therefore, all three respondents i.e. respondents 1 to 3 cannot deny the undisputed bills due to the petitioner and they are duty bound to make payments to the work completed.

Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail. - Larson JUDGE W.P.(C) No.597 of 2019