JUDGMENT :

Dhiraj Singh Thakur, J.

Since common questions of facts and law have arisen in the present two appeals, therefore, we propose to dispose of the same by way of this common judgment.

2. With a view to understand the background in light of which the present controversy has arisen, it is necessary to briefly state the material facts as under:-.

3. The petitioner, a Private Limited Company registered under the Companies Act, is involved in execution of civil works on contract basis.

4. The appellant filed four petitions before the Writ Court bearing WP (C) Nos. 983/2020, 984/2020, 985/2020, 986/2020 in which it was alleged that pursuant to the Notice inviting tenders for execution of works and having been found to be L1, work was allotted to the appellant which was satisfactorily completed by it but the payment was withheld without any cause or justification. The case set-up was that running account bills were submitted in regard to all four contracts which were allotted to the appellant but only partial payment was released by the respondents and rest was withheld on account of the fact that the funds were not available.

5. It was in that background that the petitioner/appellant filed four different petitions in regard to each NIT and the contracts which were successfully executed, claiming a direction in the nature of a mandamus for release of the admitted amount payable.

6. In response to the writ petitions, filed by the respondents, a preliminary objection was taken that the petition was not maintainable inasmuch as, an alternative remedy of arbitration was available to the appellant/petitioner in view of the existence of an arbitration clause in the agreement. Apart from this, the fact that the payment was not due to the petitioner/appellant was not specifically denied. What was highlighted in the reply, as reflected in paragraph 02-09 and 10 & 11 was that the balance amount, if any, due to the appellant/petitioner had already been kept in the Plan and the same would be paid on release by the Government and that the Work done liability for the years 2016-17, 2017-18 and 2018-19 had been communicated to the Government.

It was, however, stated that the deductions, as permissible in terms of the provisions of the Income Tax, GST, Service Tax Labour Cess Security Deposit etc. were also required to be made by the respondents before releasing the payment in favour of the petitioner.

7. The other objection raised was that the writ petition could not be entertained in view of disputed questions having being raised in the writ petition.

8. The matter, having been considered by the Writ Court, the petitions were dismissed vide judgement and order dated 23.02.2021.

One fact which needs to be noticed is that during the pendency of the writ proceedings, pursuant to the directions dated 05.06.2020 passed by the writ court the respondents were asked to file a better affidavit. In the said affidavit, it was stated that the floods which affected the Kashmir valley in September, 2014 had caused substantial damages to the roads and villages and the basic infrastructure in Kashmir which was quite deplorable causing severe hardships to the commuters. It was stated that with a view to provide proper roads, the Department took up the macadamization programme in hand in a big way during 2015-2016 and onwards also. The macadamisation programme is stated to have got the approval of the then State Government.

9. In the affidavit, the following chart has been reproduced with a view to show the work done for all the years from 2015 to 2019, the expenditure involved, the availability of funds, work done and the pending claims. The said chart for facility of reference is reproduced hereinbelow:-

S. No. Year Availability of funds Work done Expenditure Pending work done claim

1. 2015-16 330.00 337.71 270.00 67.61

2. 2016-17 500.00 511.29 467.52 43.77

3. 2017-18 711.41 1021.47 692.15 329.32

4. 2018-19 300.00 393.87 300.00 93.87

Total (A) 1,841.41 2,264.34