The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C). No. 32436 of 2024 Maheswar Behera …. Petitioner State of Odisha and others …. Opposite Parties -Versus- Advocates appeared in this case: For Petitioner For Opposite Parties : : Mr. Satrughna Dash, Advocate Mrs. Suman Pattnaik, Addl. Government Advocate CORAM: HON’ BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE MANASH RANJAN PATHAK J U D G M E N T ---------------------------------------------------------------------------------- Date of Judgment: 3rd December, 2025 ---------------------------------------------------------------------------------- HARISH TANDON, CJ. 1. The seminal point involved in the instant writ petition revolves around the issue whether the writ Court can direct the authorities to refund the amount of money withheld without any justifiable reasons. W.P.(C) No. 32436 of 2024 Page 1 of 17 2. At the very outset, we must record that the principal and primary relief claimed in the writ petition is the recovery of an amount withheld by the respondent authorities not as an ancillary relief coupled with the other substantive reliefs. 3. Shorn of unnecessary details, the facts emerged from the instant writ petition needs recapitulation in order to determine the points as indicated hereinabove. 3.1 Undeniably, the writ petitioner is registered as a B-Class contractor with the Public Works Department in the State of Odisha and participated in the tender floated for “excavation & construction of Saharpada Minor, Balabhadrapur Minor and Tail Minor off-taking from RD 23805m to RD 25205m of left Main Distributary including structure of Deo irrigation project”. The petitioner after having adjudged successful bidder was awarded a contract and an agreement in this regard was also entered into by and between the parties. Undeniably, the project commenced on 10.01.2022 and the petitioner perceived several difficulties and obstacles because of frequent deviation made to the approved plan, which resulted into a delay in completion of the project work and the same, according to the petitioner, was beyond his conceivable W.P.(C) No. 32436 of 2024 Page 2 of 17 imagination. Yet the petitioner continued to execute the work as per the instructions given by the authorities from time to time and also sought for an extension of the period for completion of the said project, which appears to have been granted by the authorities. Despite the work assigned to the petitioner in terms of the tender, additional and extra work was also imposed upon the petitioner by the authority, which was also executed. Apart from the aforementioned hurdles having created in timely execution of the construction work, the delay was also attributed to the dispute raised by several persons claiming their rights in respect of the lands over which such construction was to be undertaken, which includes the felling of the trees and clearance of dense forest, which requires the permission from the competent authority. The petitioner submitted the R/A bills from time to time after execution of the work, which was paid after retaining certain amount in contemplation of a final decision to be taken by the authority after proper verification and scrutiny to be made in this regard. The 9th and 10th R/A bills appear to have been withheld partially despite the completion certificate having issued by the authority and for such action of the authorities which according to the petitioner is W.P.(C) No. 32436 of 2024 Page 3 of 17 irrational and unreasonable, the instant writ petition has been filed for the following reliefs. “(i) To Admit and allow the writ petition by calling the records from the opp. Parties in connection with engineering contract work undertaken for Excavation and construction of Saharpada minor, Balabhadrapur minor and tail minor off-taking from RD 23805m to RD 25205m of left main distributary including structure of DEO irrigation project. AND (ii) To issue rule NISI directing to the O.P.s, to file show cause, if the O.P. fail file show cause or file insufficient cause then the rule may be made absolute. AND (iii) To issue writ of mandamus, or any other writ of like nature, directing to O.P.-1 to 5, to pay the withheld amount 26,80,000/-, security money 26,00,000/- and initial security deposit in shape of bank guarantee ₹3,41,000/- along with additional expenditure incurred by the petitioner during the construction of DEO irrigation project to the tune of ₹1,30,06,750/, total petitioner 21,49,66,750/-.” admissible due to 3.2 Amidst pendency of the writ petition, an interlocutory application, i.e. I.A. No. 16694 of 2024 is taken out by the petitioner for return of the withheld amount of Rs.6,80,000.00, security money to the tune of Rs.6,00,000.00 and initial security deposit in shape of bank guarantee to the extent of Rs.3,41,000.00, W.P.(C) No. 32436 of 2024 Page 4 of 17 as the petitioner has completed the entire project and completion certificate is also issued by the authority corroborating the aforesaid fact. An additional affidavit is also filed by the writ petitioner bringing the facts that after the completion of the entire project the same has been cross-checked by the Sub Divisional Accounts Officer, which was accepted and ratified by the Superintending Engineer on 21.03.2024. It was also pleaded in the said affidavit that despite the cross checking of the bills, the payment has been deferred and partially disbursed after a lapse of one year without compensating the petitioner in the form of payment of interest and also without any tangible explanation from the side of the authorities. 4. The opposite parties were invited to file counter affidavit
Decision
to respond the facts pleaded in the writ petition, which in fact has been filed by the opposite party nos. 3 and 4. Although the opposite parties took a usual stand that the writ petition is not maintainable, yet clear admission can be perceived in paragraphs-4 and 6 of the said counter affidavit. The statement made in the aforementioned paragraphs can be summarized that the petitioner completed the work, though beyond the time stipulated therefor W.P.(C) No. 32436 of 2024 Page 5 of 17 and an extension of time proposal to the Engineer-in-Chief, Procurement is pending approval. It is categorically averred that the bank guarantee and security deposit may be released after the final decision is taken on the extension of time. An admission can also be manifestly seen from paragraph-6 that the petitioner was directed to undertake an additional or extra work beyond the scope of contract on the directions or the order passed by the opposite party nos. 3, 4 and 5, which was also duly executed. However, the claim made by the petitioner that because of the delayed decision taken by the authorities, the machineries, employees, labours and technical persons were made to sit idle, which caused an extra monetary burden on the petitioner, for which he should be monetarily compensated, was denied. 5. The summum bonum of the pleadings made in the counter affidavit leaves no ambiguity that the authorities have accepted withholding of the money so far as the security deposits and the other undisputed amounts are concerned subject to the final approval to be taken on the extension of time by the competent authority. There is also no denial of the execution of the extra work on the instruction given by the competent authority and W.P.(C) No. 32436 of 2024 Page 6 of 17 withholding of an amount is dependent upon the final decision to be taken on the extension of time in completing the project. 6. On the backdrop of the aforesaid facts discerned from the pleadings filed by the respective parties the question boils down to whether a writ for recovery of the amount due and payable to the petitioner is maintainable. 7. It would be pertinent to recapitulate the letter dated 27.02.2025 issued by the Chief Construction Engineer, Deo Irrigation Project, Karanjia, which contains necessary compliances in point wise manner including the reasons for delay in submission of the extension of time application. It is indicated that the delay was caused because of the tree felling and also handing over the possession of the land as the compensation to the land owners was not paid. The said letter was issued to the Engineer in Chief, Procurement and appears to have been taken as a defence as the final decision has not been taken thereupon by the said authority. It can be reasonably gathered from the said document that the delay in completion of the project is not attributable to the conduct of the petitioner, but appears to have been caused because of the impediments having faced, which was W.P.(C) No. 32436 of 2024 Page 7 of 17 beyond the control of the writ petitioner. Several documents have been annexed which includes the R/A bills and partial payment thereupon including the work completion certificate issued by the competent authority signifying the satisfactory completion of the work entrusted upon the petitioner in terms of the said agreement. 8. A legal plea is taken by the opposite parties that the writ for recovery of an amount of money is not maintainable and the petitioner should be relegated to the Civil Suit, as it involves the determination of a disputed question of facts, which can only be decided on the basis of the evidences to be adduced in this regard. 9. The issue pertaining to maintainability of the writ petition strike at the root of the jurisdiction to be exercised by the writ Court needs deeper scrutiny and, therefore, we invited the parties to argue on the said point. 10. According to the petitioner, there is no complete embargo created in law in maintaining the writ petition for recovery of an admitted sum and, therefore, the stand of the opposite parties has to be understood in such perspective. It is submitted that the amount which is undisputed or impliedly accepted by the opposite W.P.(C) No. 32436 of 2024 Page 8 of 17 parties can be directed to be disbursed to the petitioner under Article 226 of the Constitution of India. It is arduously submitted that the opposite parties have not denied withholding of the security deposit or other deposits being sine qua non to the execution of the agreement in the counter affidavit and, therefore, there is no fetter on the part of the writ Court to direct the opposite parties to release the said amount. 11. Per contra, the Additional Government Advocate submits that since the dispute revolves around a private law domain and there is no public law element involved therein, the writ Court is not competent to entertain the writ petition, which is founded upon the solitary relief of recovery of money. It is further submitted that the authorities have taken a conscious decision to release the amount only after a final decision on extension of time is taken, which would further be evident from the stand taken in the counter affidavit. 12. There has been a considerable debate on the scope and jurisdiction exercised by the writ Court under Article 226 of the Constitution of India to enforce the civil liabilities arising from breach of a contract to pay an amount due to the claimant. The W.P.(C) No. 32436 of 2024 Page 9 of 17 Courts of the country often faced such situation and takes divergent views as in some cases the writ was held not maintainable if the solitary relief is claimed for recovery of money and in some the same is entertained in granting the relief. It would be apposite to consider a decision of the Apex Court in the case of Godavari Sugar Mills Limited v State of Maharashtra and others, reported in (2011) 2 SCC 439 wherein the apex Court formulated the points as to whether the writ petition for recovery of money is maintainable or not. In the said case, a notification was issued under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 declaring that the appellant therein is holding and possessing surplus agricultural land the possession thereof was taken by the authorities. Subsequently, the claim was submitted to the authorities for payment of the compensation and an award under the said Act was made containing an interest on the compensation @ 3% per annum. The writ petition was filed for an interest @ 9% instead of 3%, which ultimately travelled to the apex Court. In the perspective of the aforesaid facts, the apex Court formulated a question as to whether the writ petition for recovery of money simpliciter is maintainable or not. Reliance was W.P.(C) No. 32436 of 2024 Page 10 of 17 placed upon a judgment of the Apex Court rendered in the case of Suganmal v. State of M.P., reported in AIR 1965 SC 1740 wherein it is held that the writ petition to enforce the money claim is not maintainable. The said judgment was subsequently taken into consideration in the subsequent cases and was explained and distinguished which was noticed by the apex Court in the said report. The Apex Court succinctly and lucidly laid down the principles in relation thereto, more particularly in what circumstances a writ for money claim can be maintained 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 for aggrieved party comes 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 Court to W.P.(C) No. 32436 of 2024 Page 11 of 17 the power to give consequential relief by ordering payment of money realised 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 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.) that (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 and sparingly depending facts on W.P.(C) No. 32436 of 2024 Page 12 of 17 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 facts and several grounds depending on 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 the remedy under Article 226 of Constitution will not be denied. (Vide Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.) 13. What can be reasonably gathered from the aforesaid decision that ordinarily the writ petition under Article 226 of the Constitution to enforce the civil rights touching upon the breach of the contract is not maintainable, but there is no fetter on the part of the writ Court in directing the payment thereof if it relates to enforcement of a statutory right or on the functions of its officials. It is further held that the moment the question involves the public law functions dependent upon the peculiarity of the facts, there is W.P.(C) No. 32436 of 2024 Page 13 of 17 no absolute inhibition in the writ Court in granting the reliefs in the form of refund of the amount. 14. However in a recent decision rendered in the case of Union of India and others v. Puna Hinda, reported in (2021) 10 SCC 690, the apex Court held that the writ Court may refuse to entertain the writ petition involving the disputed question of facts or the relief is dependent upon an evidence to be laid in this regard, but there is no fetter on the part of the writ Court to issue direction upon the authorities to make the payment of money if the same is admitted or otherwise crystallised in the following paragraph. “24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount W.P.(C) No. 32436 of 2024 Page 14 of 17 due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads. 15. It is axiomatic to record that there is no complete bar in entertaining the writ petition claiming relief of refund of admitted and/or crystallised amount. The writ Court shall refuse to grant such relief if it involves a disputed question of facts, the voluminous documents to be considered and the evidence to be laid by the authorities. In such situation the writ Court may refuse to exercise such jurisdiction and relegate the parties to the Civil Court. The court must ascertain before it embarks its journey on such parameters as to whether the action or the function of the public authorities or its officials are unreasonable, irrational and deprives the right accrued to the litigant to have the said amount refunded to it. 16. Reverting to the instant case, as indicated hereinabove, there is no denial that the petitioner executed the work in terms of an agreement to the satisfaction of the authorities, but there was a delay perceived, which cannot be attributed to the conduct of the petitioner, which has been highlighted by the competent authority W.P.(C) No. 32436 of 2024 Page 15 of 17 in the letter dated 27.02.2025 of the Chief Construction Engineer, Deo Irrigation Project, Karanjia addressed to the Engineer-in- Chief, Procurement. Even the counter affidavit filed by the opposite party nos. 3 and 4 contained a clear admission so far as the initial security deposit, the bank guarantee and other security deposits made by the petitioner in terms of the said agreement. 17. We thus do not find any fetter in directing the release of the amount withheld in anticipation of final decision to be taken on the extension of time after meticulously going into the said letter dated 27.02.2025. So far as the claim of compensation because of the delay caused by the authorities, which in our opinion requires an evidence to be gone into and, therefore, cannot be awarded at this stage. 18. We, therefore, allow the writ petition to the extent that the authorities shall pay a sum of Rs.6,80,000.00 which has been withheld, a sum of Rs.6,00,000.00 which was submitted by the petitioner as security deposit and also a sum of Rs.3,41,000.00 lying with the authorities as initial security in the form of bank guarantee within a period of four weeks from the date of W.P.(C) No. 32436 of 2024 Page 16 of 17 communication of this order. So far as the claim of compensation in causing delay by the authorities in execution of the work is concerned, it is open to the petitioner to claim the said amount by approaching the Civil Court. 19. With these observations, the writ petition is disposed of. No order as to costs. (Harish Tandon) Chief Justice Judge (Manash Ranjan Pathak) Arun Mishra Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 04-Dec-2025 11:52:09 W.P.(C) No. 32436 of 2024 Page 17 of 17