Heard learned advocate for the petitioner. The petitioner has approached this Court under Article 226 of the Constitution of India with following prayers:
"A.
A writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or appropriate writ order or direction may kindly be issued directing the respondents to finalize the final bill with regard to execute contract work vide contract agreement No. W/701/2/1/157/WA dated 16/04/96 and expedite the payment along with the interest till the payment of legitimate dues is made, to the petitioner.
B. Pending admission final disposal of the present petition this Hon'ble Court may kindly be pleased to direct the respondents to submit the details and position of the process of the final bill of the contract work executed of the Contracting Agreement No W/701/2/1/157/WA dated 16/04/96 and be pleased to expedite the process of finalization of the final bill and making payment thereof.
C. The Hon'ble Court may kindly be pleased to award the cost of this petition."
The facts in brief as could be culled out from oral submissions made on behalf of the petitioner could be set out as under.
The petitioner appears to have undertaken contractual work under the contract dated 16/4/1996.The said contractual work was executed and is over, as per the say of the advocate of the petitioner by 23/4/1996. The contractual work was to be completed latest by 15/5/1996. The respondent Railways paid one running bill, however the bill which was raised by the petitioner on 27/7/1996 for Rs.1,29,699/- had not been finalized or paid. Petitioner's advocate has invited this Court's attention to the communication issued by Railways on 16/1/1997, 21/5/1998 and 18/12/2000 and contended that the bills were not finalized on account of petitioner's signing No Claim Certificate under protest. This controversy remained and petitioner moved Civil Court Civil Misc. Application No. 695 of 1996 under Section 8 & 9 of the Arbitration Act 1940, against Union of India through Western Railway and General Manager,Western Railway. This application was dismissed on 12/10/2009. The petitioner thereafter has not taken any other proceedings therefrom.
The petitioner kept on issuing notices through advocate to Railways for making payment of his bill which were of no avail. Ultimately petitioner was constrained to file writ petition being Special Civil Application No. 16047 of 2011 which came to be disposed of vide order dated 9/11/2011, wherein this Court observed as under:
"2.
At the outset, Mr. Aript P. Patel, learned advocate for the petitioner states that the interest of justice would be met, if the petitioner is permitted to make a representation to the Divisional Railway Manager (WA) (respondent No.2), in order to ventilate his grievances, who may be directed to consider and decide the same within a time-bound period.
3. Upon the above statement being made by the learned advocate for the petitioner, the following order is passed:
The petitioner is permitted to make a representation to the Divisional Railway Manager (WA) (respondent No.2), within a period of two weeks from today. If the representation is made within the stipulated period of time, the said respondent shall consider and decide the same, in accordance with law, within a period of one month from the date of receipt of the representation.
It is clarified that while passing this order, the Court has not entered into the merits of the case.
The petition is disposed of, in the above terms. Direct service of this order is permitted."
Accordingly petitioner filed representation on 21/11/2011 and till date same has not been decided. Hence this petition.
Learned advocate was called upon to answer as to whether petitioner would like to pursue the remedy of seeking compliance of order dated 9/11/2011, as the representation which was ordered to be disposed of within one month has not been disposed of. The advocate submits that, that remedy would be of no avail to the petitioner and he chose to submit on merits. Accordingly advocate was heard. Petitioner's advocate has argued and submitted that the inaction on the part of Railways is violating fundamental right of the petitioner, and therefore, appropriate writ, order or direction be issued to Railways for finalizing the bill which is pending since 1996.
The petitioner has contended that non-suiting of the petitioner by the Civil Court qua orders made under section 8 & 9 of the Arbitration Act 1940, also would not be held against the petitioner, as it was on a technical ground and the application being premature and therefore respondent Railways cannot sit tight over claim of the citizen and hence appropriate writ, order or direction be issued.
This Court is of the considered view that this petition is required to be dismissed in-limine for the following reasons, namely:
a) The petitioner has in fact approached this Court on earlier occasion on the same fact & circumstances and at that time petitioner did have an option to make submission on merits of the matter and invite appropriate orders. The petitioner himself has opted for approaching authority by making representation which has merely been granted by the Court and the Court was in fact directed respondents to decide the representation if any that may be made by the petitioner within one month therefrom. This direction, in my view being mandatory the Railways was under an obligation to comply therewith. However learned advocate for the petitioner has submitted that petitioner would not like to pursue remedy which was available to him by way of filing representation and bring it to its logical conclusion, namely availing appropriate application including contempt application for seeking due compliance with the order which had remained non-complied as per the submission of learned advocate for the petitioner.
b) It is established principle of law that this Court cannot keep on issuing writ after writ on the same cause of action. It is for the party to bring the matter to its logical conclusion. Filing writ after writ for the same cause of action is impermissible. In the instant case, had there been a decision of the Railways on representation against the petitioner, then that decision, if being adverse, would have given fresh cause of action to the petitioner for bringing action including filing petition against Railways. Unfortunately there exists no decision which can be said to have changed circumstances entitling the petitioner to bring one more petition against the respondent Railways.
c) In my view, when the petitioner has chosen not to file remedy available and chosen a wrong remedy maintaining writ petition, this Court would not countenance this conduct and hence the petition in my view is not maintainable.
d) Without diluting above said observation in any manner, the entire claim of the petitioner is being looked at from the point merits, then also the petitioner's claim for Rs.1,29,699/- which was raised in the year 1996 is otherwise also now not be permitted to be accepted without justification on the part of the petitioner for unexplained delay for enforcing his right if any against respondent Railways. The claim is stale and petitioner has not availed any remedy after the order passed in Civil Misc. Application No. 695 of 1996 on 12/10/2009.
In view of the aforesaid glaring lacuna in the claim, this Court is of the considered view that the discretion under Article 226 of the Constitution could not have been exercised in favour of the petitioner. Hence the petition being bereft of merits deserves rejection and is accordingly rejected. However, there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn Top