A petitioner must exhaust contractual dispute resolution mechanisms before seeking intervention under Article 226 of the Constitution.

ORDER :

(UMESH A. TRIVEDI, J.)

1. This petition is filed by the petitioner praying for following reliefs:

(A) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to make the outstanding payment of Rs.1,32,14,004/- (Rupees One Crore Thirty Two Lakhs Fourteen Thousand Four Only) alongwith interest towards the work done by the petitioner.

(B) Pending admission, hearing and final disposal of this petition, your Lordships be pleased to direct the respondents to consider and decide the case of the petitioner regarding the outstanding payment of Rs.1,32,14,004/- (Rupees One Crore Thirty Two Lakhs Fourteen Thousand Four only) alongwith interest towards the work done by the petitioner.

(C) Ex-parte ad-interim relief in terms of prayer (B) be granted.

(D) Such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted.

2. Essentially the petition appears to be filed under Article 226 of the Constitution of India claiming the outstanding payment, as mentioned in the relief clause, from the respondent Corporation, that too, by writ of mandamus. However, considering the affidavit-in-reply, it appears that there are very serious disputes about the work having been completed satisfactorily, that too, within the contract period. Not only that, sufficient opportunities were furnished to the petitioner to show the completion of satisfactory work so as to entitle him for the payment thereof. However, from the affidavit as also the correspondence, which is at page 200, relied on by the learned advocate for the petitioner, it reflects that sufficient and proper opportunities were provided to the petitioner to justify its claim in accordance with the contract entered into. The letter dated 10.01.2023 addressed to the petitioner by the respondent – Executive Engineer, Garden Project Cell reflects that on 03.07.2015 on different issues hearing was held and pursuant thereto final bill as per the work carried out by the petitioner came to be prepared by the Assistant Engineer, which was refused to be signed by the petitioner. That itself shows that there are serious disputes about the work having been completed and the payment, which is claimed by the petitioner.

3. Not only that, as reflected from the affidavit-in-reply as per the General Condition no.46 of the tender document, a settlement resolution is provided for initially through the Engineer and if amicable settlement with the Engineer fails, the question or difference is stated to be settled by the Municipal Commissioner, who shall state his decision in writing and give notice of the same to the Engineer and to the Contractor. It appears that petitioner has not resorted to the same and straightway filed this petition under Article 226 of the Constitution of India claiming his payment for remaining outstanding out of the contract work. As such, as coming out from the affidavit-in-reply, for the work carried out by the petitioner, he has already been paid Rs.1,00,44,000/- and its remaining claim appears having been disputed about incomplete and unsatisfactory work, which cannot be directed to be paid under Article 226 of the Constitution of India. Therefore, reliance placed on the decision of this Court in the case of Cube Construction Engineering Limited Through Sanjay D. Shah, Director Vs. State of Gujarat reported in 2022 (1) GLH 82 is not at all applicable to the facts of the present case as the work order mentioned the rates at which the work entrusted was to be carried out in that case, which was completed in a stipulated time and there was no grievance raised by the respondent authority therein but unilaterally altered the rates on the ground that it was on the higher side when originally fixed. In those circumstances, it appears that this court interfered with the same.

4. At any rate, for non payment of the remai