Hon'ble Ritu Raj Awasthi, J.
Heard the counsel for the petitioner Sri Raj Kumar Pandey and Sri Lalit Tiwari holding brief of Sri A.M. Tripathi for the respondents.
The petitioner has filed this petition, claiming payment of the amount towards the work done under a private contract. The ground for not making the payment is shortage of funds i.e. non-release of funds by the concerned authority.
Under the circumstances, we cannot entertain the writ petition nor can issue a direction for making payment.
Reliance is being placed upon the case of M/s. Satish Chandra vs. State of U.P. and others (Writ Petition No. 6017 (MB) of 2005 and other connected matters) decided on 21.9.05, wherein under the circumstances and conditions mentioned in the order, directions have been issued for payment of the admitted amount.
In a case where either the amount is not admitted to the concerned authority, as per the observations made in the aforesaid case of M/s. Satish Chandra, or where there is dispute regarding entitlement of amount claimed, writ petition cannot be entertained.
The contract being of purely private nature, the non-payment of the amount would only be a breach of contract, which cannot be enforced under Article 226 of the Constitution.
In a case, where there is a plea of shortage of funds or non-release of funds in favour of the department who has to make the payment, again this Court would not entertain the petition for the reason that this Court under Article 226, while exercising discretionary jurisdiction, would not pass any order for execution and implementation of the order in the matter of payment of the amount towards the work done under a private contract.
It also cannot be lost sight of, that normally the remedy in such matters is either to undertake the arbitration proceedings, if it is provided under the agreement or to file civil suit i.e. to initiate appropriate proceedings, as may be provided under law.
For getting a direction for payment of the admitted amount towards the work done, the claim has to meet the test as laid down in the case of M/s. Satish Chandra.
In a case where paucity of funds or non-release of funds is shown by the department, even if this Court issues order for payment of the amount, this Court would not take any coercive action against the department concerned or the State Government for making the payment.
If such a dispute regarding the payment of the amount is decided in arbitration or in civil suit, that can very well be implemented by taking recourse to proceedings for execution, where there can be attachment of the government or State property, besides other coercive steps which can be taken.
For the aforesaid reason, the writ petition is dismissed.
Dated: 13.9.2010 MFA