RAMESHWAR PD. SAWAR LAL Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) The petitioner has invoked the writ jurisdiction of this Court, making a prayer to issue mandamus and to direct the respondent nos. 2 to 5 to be responsive to the cause of the petitioner in making payment of the legal dues for the services rendered by him to the Public Works Department at Hazaribagh Circle. The petitioner took up the work as allotted to him under an agreement No. 11F2 of 1963 -64 relating to bring improvement to Ramgarh Bhurkunda Patratu Road. On completion of the work the, concerned officials in the Public Works Department made proper checking thereof and on final calculation respondent no. 4, the Superintending Engineer sanctioned the amount of Rs. 7,32,000/ - of the bill submitted vide memo no. 978 dated 28.2.1971. As per the Rule of Business, in the Public Works Department, the payment should have been made normally within a month from the date of the sanction -order. But after the grant of the sanction, the officials instead of taking up the follow -up action in discharging their liability in making payment, slept over the file and did not make payment till today.

(2.) The Standing Counsel no. 4 Sri R.N. Prasad on the first date of hearing of the application sought for an adjournment to find out why the claim of the petitioner has not been paid for so long a period of sixteen years. The learned Standing Counsel was vocal in his submission that if the malady was in the concerned Department and the officials were defaulters then the petitioner must be compensated and payment be made with interest, otherwise the application is fit to be dismissed. However, he further added that if so advised, he may file counter -affidavit as well. Long adjournment was granted with a direction that the respondents would examine the claim of the petitioner and it was further observed that if it was found that outstanding dues were there, to which the petitioners entitled to get payment, necessary steps be taken by the respondents to pay off all the dues. It again came up for hearing on 27.10.1987. Again the Standing Counsel made a prayer for adjournment. It was submitted that respondent no. 5 the Executive Engineer could not bring all the connected papers relating to the claim of the petitioner and therefore, a prayer was made to grant further adjournment to examine the claim and to file counter affidavit. Further hearing was taken up on 3.11.1987. The Advocate General personally appeared on behalf of all the respondents, properly assisted by the Standing Counsel no. IV. It will be pertinent to note that no counter affidavit was filed on behalf of the respondents. I may further state here that even in the course of argument, the claim of the petitioner was not denied. Learned Advocate General, however, citing decisions of the Supreme Court in the case of M/s. Radha Krishna Agrawal and others v/s. The State of Bihar and others ( : AIR 1977 S.C. 1496) and also of this Court in the case of B.K. Sinha v/s. State of Bihar and others ( : A.I.R. 1974 Patna 230) made short argument stating that the claim of the petitioner arises out of a contractual held on account of breach and violation of the terms and conditions of the contract between the petitioner and the respondents and it does not attract the application of Article 14 of the Constitution of India and the writ application is therefore, not maintainable. It has also been argued that apart from the fact that the petitioner should avail of an alternative remedy, the dues being of past sixteen years and the application under Articles 226 and 227 of the Constitution of India must be defeated on the ground of delay.

(3.) Having heard the Counsel for the petitioner and also the Advocate General for the respondents, I find that the petitioner is not seeking for issuance of any direction against the respondents for fulfilment of any contractual obligation. It is not the case of the petitioner that there has been any breach or violation of any contract. The agreement of course, was there between the parties. The petitioner was asked to perform and render services as per agreement. The work was completed to the satisfaction of the respondents. There is no denial of this. It has been argued on behalf of the petitioner that under Article 298 of the Constitution of India the Executive power of the Govt. officials can reasonably be exercised to an extent it does not contravene any law and at the same time, even in dealing with the trade and business, Article 14 of the Constitution imposes an obligation upon State's executive powers to be exercised under Article 298 of the Constitution. It is not the case of the petitioner that he was not allowed to perform his part of the contract. There was no let or hindrance at any stage. The petitioner is there, fore, not seeking any relief for remedy of any breach of contract on behalf of the respondents and that the two case laws cited on behalf of the respondents have got no application to the instant case.