Petitioners are contractors who were given certain civil works in connection with the Edamalayar Right Bank Main Canal including the work of Cross Drainage. It is stated that, as many as 38 persons were given such contract for completing the work in separate units for an approximate length of 250 m. The grievance of the petitioners is that, despite the completion of work, the due amount is not paid; which is contrary to the terms and conditions of the tender conditions and the agreement executed in between. The amount due to the petitioners has been admittedly withheld by the respondents, which made the petitioners to approach this Court by filing this writ petition.
2. The learned counsel for the petitioners submits with reference to the materials on record that, pursuant to the tender notification floated by the fifth respondent, Ext.P1 agreement was executed between the first petitioner and the Government and similar agreements were executed between the other petitioners and the Government as well. It was accordingly, that the work was completed by the petitioners and they raised Bills for the due amount, which however was not disbursed; referring to some Vigilance enquiry. It is stated that, there is absolutely no merit or bonafides with regard to the allegations raised against the petitioners. Even if there is any dispute between the parties concerned, by virtue of Clause 24 of Ext.P1 agreement, the dispute ought to have been referred to 'Arbitration', submits the learned counsel. It is further pointed out with reference to the contents of Ext.P1 agreement itself, at Clause No. 24, that, the dispute if any, has to be resolved through the competent Civil Court and this being the position, there is no rhyme or reason for the respondents in withholding the amount without any disbursement to the petitioners. It is in the said circumstance, that necessary reliefs have been sought for in the following terms:
“i. Issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1, 4 and 5 to disburse Rs.6,45,547/- to the 1st petitioner.
ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1, 4 and 5 to disburse Rs.7,32,525/- to the 2nd petitioner.
iii. Issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1, 4 and 5 to disburse Rs.7,25,199/- to the 3rd petitioner.
iv. Issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1, 4 and 5 to disburse Rs.9,83,208/- to the 4th petitioner.
v. Declare that the action of the respondents in recovering huge amounts referred to in prayers (i) to (iv) is without any authority of law and is void and nonest.
vi. Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext.P11 and quashing the same, to the extent it directs recovery of the amounts shown therein from the petitioners as loss caused to the Government.”
3. A detailed counter affidavit has been filed from the part of the third respondent and a separate counter affidavit has been filed by the first respondent as well.
4. The learned Government Pleader for the respondents submits that, the version of the petitioners, as put forth in the writ petition, as such is not fully correct and that the work assigned to the petitioners was not performed in the desired manner. It is stated that serious lapses were there on the part of the petitioners, which led to the registration of Vigilance Case as V.C No. 1/2005. The issue was the subject matter of consideration in W.P.(C). No. 11936/2004 filed by one Sri. P.L.
Jacob before this Court. During the course of hearing, it was brought to the notice of this Court by the learned Government Pleader that, detailed fact verification was pursued by the authorities of various departments when it was found that, serious loss had already been caused to the Government; particulars of which have been given in the table, in paragraph '11' of the counter affidavit, which is extracted below:
“11. The allegation in respect of petitioners is that they carried out the contract work of Modification of Right Bank Main Canal of Idamalayar Irrigation Project, Chalakudy in a substandard manner in collusion with the Executing Officials as mentioned below:
5. It is pointed out that, the acts and deeds of the petitioners have resulted in serious loss, which in turn is sought to be realized and hence the petitioners are not entitled to have the reliefs sought for. It is further brought to the notice of this Court that, Clause 24 sought to be relied on by the petitioners has been substituted as discernible from the opening sentence of Clause 'No. i' of the Special Conditions of Ext.P1 itself, which reads as follows:
“i) Notice inviting tender for works (Form No.33) Clause 24 shall be substituted by the following Arbitration shall not be a means of settlement of disputes or claims arising out of the contract relating to the works.”
6. The clause sought to be relied on from part of the petitioners (for settlement of disputes) is also sought to be relied on by the learned Government Pleader as well, pointing out that, if at all there is any dispute for the petitioners with regard to the amount due, it is always open for the petitioners to approach the competent Civil Court. It is further pointed out that, the Vigilance case is still pending. The relevant clause referred to, with regard to the settlement of dispute, with the intervention of Civil Court reads as follows:
“All disputes and difference arising out of the contract that may be executed in pursuance of the notification shall be settled only by the Civil Court in whose jurisdiction the work covered by the contract is situated or in whose jurisdiction the work covered by the contract is situated or in whose jurisdiction the contract was entered into in case the work extend to the jurisdiction of more than one court.”
7. This Court finds that, the fixation of loss, the eligibility for the due amount and such other incidental aspects are in dispute. This being the position, a fact adjudication is necessary to resolve the dispute and by virtue of the contents of Ext.P1, particularly the Clause substituting Clause 24, it is for the aggrieved party to approach the competent Civil Court. As such, it is always open for the petitioners to approach the competent Civil Court to get the due amount, if any, in respect of the work awarded to the petitioners pursuant to the tender notification and Ext.P1 agreement.
Without prejudice to the rights and liberties of the petitioners to approach the competent Civil Court, interference is declined and the writ petition is dismissed. It is made clear that, this Court has not expressed any thing with regard to the merits involved.
P.R. RAMACHANDRA MENON, JUDGE.
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