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2018 Supreme(HP) 1853
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Tarlok Singh Chauhan, J.
Parminder Kumar Kanwar - Appellant
Versus
Superintending Engineer And Anr - Respondent
Civil Writ Petition No. 8172 of 2012
Decided On : 10-08-2018
Suman Thakur, Adv., Vinod Thakur, Adv., Sudhir Bhatnagar, Adv., Bhupinder Thakur, Adv.
The main legal point established in the judgment is that a writ petition is not maintainable for resolution of private law disputes, and the court will not entertain a petition under Article 226 where there is an alternative effective and efficacious remedy available under law.
Headnote:
Mandamus - Contract Dispute - Article 299 of the Constitution - 299. Contracts (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise. (2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
Fact of the Case:
The petitioner was awarded a construction contract by the Irrigation and Public Health Department, but a dispute arose regarding the provision of hindrance-free site and drawings, leading to the cancellation of the contract and forfeiture of earnest money.
Finding of the Court:
The court found that the petitioner failed to execute the contract as required under Article 299 of the Constitution, and the relief claimed in the writ petition was not maintainable without praying for a writ of certiorari.
Issues: The main issue was whether the writ of mandamus was maintainable without praying for a writ of certiorari, and whether the petitioner had executed the contract as required under Article 299 of the Constitution.
Ratio Decidendi: The court held that the relief claimed in the writ petition was not maintainable without praying for a writ of certiorari, and the petitioner had failed to execute the contract as required under Article 299 of the Constitution.
Final Decision: The writ petition was dismissed, and the petitioner was given the option to seek redressal before the competent court.
JUDGMENT
Tarlok Singh Chauhan, J. - Even though the relief claimed in this writ petition is very innocuous to the effect that "the respondents be directed to refund the earnest money with interest and pay 10% loss of profit of awarded amount to the petitioner", yet the moot question is as to whether such a petition is in fact maintainable. However, before answering this question minimal facts need to be noticed.
2. The Irrigation and Public Health Department on 8.6.2011 awarded the contract in favour of the petitioner for construction work of Shah Nehar project in District Kangra, which is LBC main canal at RD 23618 to 24842 i.e. 1224 metres in length with the time limit of six months for its completion. The petitioner was requested to execute the contract and thereafter commence the work immediately as is evident from the letter dated 8.6.2011 (Annexure P1) addressed by the Executive Engineer to the petitioner.
3. The grievance of the petitioner as set out in this petition is that he was not provided hindrance free site along with structural designs and drawings and apart from that, these were the respondents themselves, who kept on changing the alignment and resultantly, the petitioner could not even enhance much less complete the work in question, and therefore, should be refunded earnest money with interest and damages, as aforesaid.
4. The respondents have contested the petition by filing reply, wherein, factual matrix with regard to the tender of the petitioner being accepted has not been denied, however, it is submitted that the petitioner was asked to collect the drawings from the office of the Assistant Engineer vide letters dated 19.10.2011, 24.10.2011 and 14.2.2012, but he failed to do so. Before that, he was required to sign the agreement, but he failed to do so and without it, under law, he was not entitled to proceed further. It is also averred that the joint inspection was conducted and the petitioner was asked/informed that the site was clear and the drawings were available and he was asked to start the work in question. The other allegation regarding nonavailability of hindrance free site as raised by the petitioner has been denied as would be evident from para 8 of the reply, which reads thus:
"8. That the contents of this para are not only wrong but false. The petitioner never deployed his labour and machinery at the site of work in spite of the request of the department, which is clear from his conduct. Firstly he did not sign the agreement without which he could not have started the work. Secondly, the petitioner is contradicted by himself as he has alleged that there was dispute and the drawings were not supplied, if it was so where was the question of deploying labour and machinery when he had no drawings. So far as representation of farmers is concerned, it was internal matter of department. In fact, on the request of Sh. Hussain and others during 9/2011, the possibilities to execute the work on another route from RD 23700 to RD 24640 were examined/investigated and explored and the request of land owner was not accepted due to non feasibility. The land stood acquired. The Department even had prepared Patra for construction of canal on its own expenses on dated 10.2.2012 which clearly shows that the site was very much clear and free from all hindrances. Beside several requests in writing/personally as well as telephonic ally to the petitioner he did not start the work. Because the site of work remained unchanged and the patra work was done by the department. Therefor, there was no question of the contractor to claim enhanced rates for other site as contractor did not start the work in already approved alignment despite repeated requests.
5. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.
6. As per the admitted case of the petitioner, the respondents vide letter dated 20.3.2012 (Annexure P23), after holding the petitioner liable for delay in exe
