RAJKMAR GOYAL Vs. MUNICIPAL CORPORATION GWALIOR
LAWS(MPH)-2020-9-23
HIGH COURT OF MADHYA PRADESH
Decided on September 01,2020

Rajkmar Goyal Appellant
VERSUS
MUNICIPAL CORPORATION GWALIOR Respondents




JUDGEMENT

- (1.)This petition under Article 226 of the Constitution of India has been filed seeking the following relief:-
"(i) That, the Respondent-Municipal Corporation may kindly be directed to make the payment to the petitioner against the work done by him in File Nos. 269/18x3/6, 270/18x3/6 & 271/18x3/6.

(ii) That, the Respondent-Municipal Corporation be further directed to pay the interest to the petitioner for wrongly withholding the amount without any reason @ 14% per annum.

(iii) Any other writ, order or direction as this Hon'ble Court may deems fit in the facts and circumstances of the case be granted to the petitioner. Costs be awarded."

(2.)It is the case of the petitioner that the Municipal Corporation, Gwalior decided to carry out the construction work (CC Floor and Drainage System) in Ward No. 65 Gokulpur, Ward No. 65, Shanti Nagar and in Indian Overseas Bank Colony, Gwalior and for that purpose, NITs were issued by the Municipal Corporation, Gwalior.
The petitioner and other contractors submitted their tenders and since the tender submitted by the petitioner was the lowest, therefore, the same was accepted. An agreement was entered into between the petitioner and the Municipal Corporation, Gwalior and the work order with regard to three construction works were issued, which haves been filed as Annexure P-1 [Collectively]. It is the case of the petitioner that before issuance of NITs, budget was worked out by the Municipal Corporation and it was found that budget is available for carrying out the construction work and, therefore, NITs were issued and the work order was issued. The petitioner thereafter completed his work within time frame work and the technical report was also submitted which was to the effect that work performed by the petitioner is up to the satisfaction of the authority and was in accordance with the specifications. Initially, the petitioner submitted the first bill in all the three cases and, thereafter, final bill was also submitted but it is the case of the petitioner that neither the first bill has been honoured nor the final bill has been honoured and till date, not a singly penny has been paid to the petitioner. It is further submitted that the petitioner applied for documents under the RTI to find out as to why the payment has not been made. Although the copies of the note-sheets have been supplied to the petitioner under the Right to Information Act , but no reason has been assigned as to why the payment has not been made. The note-sheet with regard to three different work orders have been placed as Annexures P-2, P-3 and P-4. By referring to the note-sheets Annexures P-2, P-3 and P-4, it is submitted by the counsel for the petitioner that in all these three cases, it is specifically mentioned that the work which was done by the petitioner was in accordance with the specifications and a recommendation was made for releasing the amount. However, the Commissioner is sitting tight over the recommendation made by the authorities and the amount has not been paid. It is further submitted that since the budget was available with the respondent authority, therefore, they cannot withhold the amount on the ground that budget is not available. It is further submitted that the act of respondent of withholding the amount payable to the petitioner is violative of Article 19 of the Constitution of India because he has been deprived of his livelihood and due to shortage of fund, he is not in a position to take further contract.

(3.)The respondent has filed its return. It is submitted by the counsel for the respondent that one petition has been filed arising out of three different contracts, therefore, in the light of High Court Rules, single petition is not maintainable because provisions of Order 2 Rule 3 of CPC are applicable to writ petition also and, therefore, the petitioner should have filed three different writ petitions. Another preliminary objection of the respondent is that as per Clause 12 of the General Condition of Contract, there is a Dispute Resolution System and the petitioner was required to submit his representation before the competent authority within 45 days of its first occurrence and dispute after 45 days can not be entertained.
In case, if the dispute is decided by the competent authority, then the petitioner had a right to file an appeal within 45 days of such a decision. Thereafter, the petitioner could have approached the Madhyastham Adhikaran Tribunal under the provisions of Madhyastham Adhikaran Adhiniyam, 1983. It is submitted that in spite of the availability of alternative remedy, the petitioner has not availed the same and filed the present petition in order to over come the period of limitation and, therefore, the petition is liable to be dismissed on this ground also. It is further submitted that in the contractual matters, where the disputed question of facts are involved, then the writ petition is not maintainable. It is further submitted that the State Government had amended Rule 15-A of the M.P. Nagar Palika (Registration of Colonizer, Terms and Conditions) Rules 1998 (for brevity "Rules, 1998"), by which the provision for regularization of illegal colonies was introduced and as per the Scheme, 50% of the work was to be done out of the funds of the Institution and remaining 50% was required to be borne by the beneficiaries / inhabitants and the share of inhabitants was to be paid by the State Government. The validity of provision 15-A of the Rules, 1998 was challenged before this Court in the case of Umesh Kumar Bohare Vs. State of Madhya Pradesh and others (W.P. No. 10414/2018) and the Division Bench of this Court by order dated 03.06.2019 held that amended Rule 15-A of the Rules, 1998 is ultra vires the substantive provision of the Act, and all actions taken there upon were declared illegal and the competent authority of respective municipalities were directed to initiate action under Section 292E read with Section 292DA of the Act, 1956 and under Section 339E read with Section 339DA of the Act, 1961. It is submitted that since the provisions of amended Rule 15-A of the Rules, 1998 were declared ultra vires, therefore, the State Government has not provided its share of 50% of the total cost. Thus, the respondent could not release the amount.



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