In cases involving disputed questions of fact and pure contractual matters, the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution cannot be invoked. Payment disputes in construction contracts should be decided through oral and documentary evidence.

ORDER :

Parth Prateem Sahu, J.

1. Challenge in this appeal is to the order dated 05.04.2016 passed in W.P.(C) No. 77 of 2015 whereby the writ petition filed by the respondent No.1/petitioner was allowed directing the appellants to make payment of the entire amount to the respondent No.1/petitioner at the contractual rate for the remaining 5 piece works and to pay respondent No.1/petitioner the entire amount with respect to 10 piece works at the contractual rate.

2. Facts relevant for disposal of this appeal are that the respondent No.1/petitioner is a registered A-4 Class Contractor in the Water Resources Department. In the year 2011-12, the respondent No.1/petitioner was awarded 36 number of piece works of Left Bank and Right Bank of Indrawati river near Old Bridge at Jagdalpur for construction of retaining wall, CC pitching work and 8th down stream & upstream of Anicut for different lengths. Work value of each piece work was Rs.2.5 lakhs. Agreements for all 36 piece works were executed on 30.03.2011 and period for completion of the works were fixed as 15.06.2011. Respondent No.1 claimed to have completed the entire work within the prescribed period and requested for disbursement of the entire bill amount. As per valuation and completion of 21 piece works, out of total 36 piece works, a sum amounting to Rs.46,26,690/- was paid to the respondent No.1. Respondent No.1 demanded the balance undisputed amount vide representation dated 29.11.2014. The appellants failed to release the amount as demanded by the respondent No.1 and therefore, he approached this Court by way of filing writ petition bearing W.P.(C) No. 77 of 2015 with following reliefs :-

“10.1 That this Hon’ble Court may kindly be pleased to call for entire records, pertaining to case of petitioner works.

10.2 That this Hon’ble Court may kindly be pleased to issue writ/writs or direction to respondent No.3 to release the entire undisputed amount which is illegally detain by the respondent No.3/4, with the suitable compensation as deem fit by this Hon’ble Court.

10.3 That the Hon’ble Court may kindly be pleased to issue writ/writs or direction to respondent No.3/4 to pay suitable rate of interest upon detained amount, as deem fit by this Hon’ble Court from the date of completion of work.

10.4 That the Hon’ble Court may kindly be pleased to punish the respondent No.4 for his mala-fide action and respondent No.1 for his inaction spite of received the copy of this Hon’ble Court passed W.P.(C) 1696/2014.

10.5 Cost of the petition may also be awarded.”

3. Appellants submitted counter affidavit to the writ petition denying the claim of the respondent No.1/petitioner. It was further pleaded that payment with respect to 21 piece works was made to the respondent No.1/petitioner and for 10 piece works, payment is made as per reduced rate in SOR as agreed by the respondent No.1/petitioner. Remaining 5 piece works were not completed. The respondent No.1/petitioner accepted amount due for work of 31 piece works without any protest.

4. Learned Single Judge while considering the rival claim of the parties, allowed the writ petition by the order impugned. The appellants (department) have challenged the order impugned on the ground that it is perverse, unjust and unreasonable. The direction issued for payment of entire amount at contractual rate for the remaining 5 piece works and direction to make payment to the respondent No.1 at contractual rate for 10 piece work is, overlooking the undertaking given by the respondent No.1 as also the order dated 23.03.2011, passed by the office of Engineer-in-Chief, Water Resources Department amending SOR. It was further pleaded that the learned Single Judge erred in directing the appellants to make payment of 5 piece works, which was even not started by the respondent No.1/petitioner despite extension of time.

5. Mr. Jitendra Pali, learned Deputy Advocate General appearing on behalf of the appellants would submit that in the facts of the case, writ petition c