UNION OF INDIA & ORS. versus M/S PUNA HINDA on 6 September 2021

1. The challenge in the present appeal is to an order dated17.11.2017 passed by the Division Bench of the Gauhati High Courtdismissing an intra-court appeal and affirming the order passed by thelearned Single Bench on 4.8.2016.

2. The learned Single Bench of the High Court allowed the writpetition filed by the respondent – M/s. Puna Hinda[1] who had soughtquashing of letters dated 27.8.2015 and 21.10.2015 and also a directionto pay Rs. 31,57,16,134/- with interest at the rate of 18% p.a.

3. The learned Single Judge held that payment in terms of FinalJoint Survey/Measurement Report dated 24.10.2013 be taken intoconsideration for making revised Detailed Project Report (DPR) andthus passed necessary orders for payment of the amount due to the writpetitioner within four months of the receipt of copy of the order. In anappeal filed by the appellants, the Division Bench of the High Court heldthat resurvey for measurement and DPR would not be just and fair atthis stage since five monsoons had passed. Therefore, the only optionleft to the appellants was to approve the DPR and pay the pending billson the basis of Final Joint Survey/Measurement Report dated 24.10.2013.

4. Brief facts leading to the present appeal is that a Notice InvitingTender (NIT) was issued on 22.10.2008 for construction and improvementof road from 26.800 km to 47.850 km between Lumla and Tashigongunder Special Accelerated Rural Development Programme (SARDP).The bid of the writ petitioner was accepted at Rs.31,87,58,950/-. Thework order was issued on 15.7.2009. The said work order was amended 1 Hereinafter referred to as the ‘writ petitioner’

A

B

C

D

E

F

G

H

Aby the parties on 15.3.2012 leading to enhanced work cost atRs. 35,03,15,695.23. The work order had provided details of the work tobe carried out and the estimated amount payable for each work withrate of each work. The work was divided into three parts, such as,Formation work, which included jungle clearance etc.; Permanent workwhich included excavation in trenches, cement concrete; and SurfaceBwork which included preparation of subgrade in soil mix boulder, laying,spreading and compacting graded stone aggregate. The measurementprocess for payment was specified in the General Conditions of Contract,which read as under:

“2 .8 .1 Excavation for roadway shall be measured by taking crossCSection at suitable intervals in the original position before the workstarts and after its completion and computing the volumes in cumby the method of average and areas for each class of materialencountered. Where it is not feasible to computes volumes by thismethod because of erratic location of isolated deposits, the volumesDshall be computed by other accepted methods.

2.8.2 At the option of the Engineer-In-Charge/QC Contract, theContractor shall leave depth indicators during excavations of suchshape and size and in such positions as directed so as to indicatesthe originals ground level as accurately as possible. The ContractorEshall see that there remain intact till the final measurements aretaken.”

5. The contractor completed the formation work by 20.9.2012,the communication of which was sent by the writ petitioner on 17.10.2012.The joint survey of the works was carried out by the Board of OfficersFon 23.1.2013. The Board of officers made the followingrecommendations: - “RECOMMENDATION OF THE BOARD

FORMATION WORKS

20. The details of items of formation works provisioned (as perGDPR), executed departmentally and balance between Km 26.800and Km 31.00 are as under:

xx

xx

xx

H

21. The details of items of formation works provisioned in DPRand as arrived at after detailed Joint Survey from Km 31.000 toKm 47.850 are as under:

The quantities as arrived at after joint survey are theoreticalonly and after completion of formation works Total station surveyshall be carried out as per Clause 18 of Special Conditions ofContract to ascertain the actual quantity executed. Hence thesequantities be treated as accurate, based on theoretical calculations.

The classification of soils as shown in joint survey are basedon visual appearance of soil strata. The actual classification ofexcavation shall be decided during execution by Engg in Chargeand OC Contract as per clause 2.2.2 of Particular specificationof CA at page no. 87 duly supported with photographs.

The quantities of formation works as arrived at after jointsurvey between Km 26.800 and Km 47.850 as per details givenat Appendix ‘A’are recommended for execution of ground andwill form the basis of RAR payments to be made as per ContractProvision/Stipulation during execution of works under CA No.CE/VTK/03/2009-10. The final quantity shall be arrived only aftercompletions of formation works by carrying out Total stationsurvey. Hence, amendment in quantities of formation works isrecommended only after final joint survey on completion of work.

22. Unlined drain of any shape cut to the required gradient withaverage sectional area 0.50 Sqm in soft rock – 2299.80 Mtrs andin Hard rock-5146.00 Mtrs as arrived at after Joint Survey arerecommended for construction on ground between Km 26.800 toKm 47.850 under CA No. CE/VTK/03/2009-10.

A

B

C

D

E

F

G

H

APERMANENT WORKS

23. Abstract of quantity of item of works for construction ofpermanent structures which are executed and balance betweenKm 26.800 and Km 31.000 and structures provisioned betweenKm 31.000 and Km 47.850 has been worked out and shown atAppendix ‘B’.

B

24. Permanent works to be executed under CA No. CE/VTK/03/2009-10 are as under:

(a) R/Wall: R/Walls balance between Km 26.800 and Km31.000 and provisioned between Km 31.000 and Km 40.000Cat locations mentioned in Annexure-I to Appendix ‘B’ arerecommended for execution on ground under CA No. CE/VTK/03/2009-10.

(b) RCC Culverts: RCC Culverts balance between Km 26.800and Km 31.000 including two incomplete RCC culverts atDlocations Km 28.300 and Km 29.000 and those provisionedbetween Km 31.000 and Km 47.850 at locations mentionedin Annexure-II to Appendix “B” are recommended forexecution on ground under CA No. CE/VTK/03/2009-10.

(c) T/Walls Below RCC Culverts: T/Walls below RCC CulvertsEbalance between Km 26.800 and Km 31.000 and thoseprovisioned between Km 31.000 and Km 47.850 at locationsmentioned in Annexure-III to Appendix ‘B’ arerecommended for execution on ground under CA No. CE/VTK/03/2009-10.

F

(d) T/Walls below R/Walls: T/Walls below R/Walls provisionedbetween Km 26.800 to Km 31.000 and Km 31.000 to Km47.850 at locations mentioned in Annexure IV to Appendix‘B’ are recommended for execution on ground under CANo. CE/VTK/03/2009-10.

G(e)Breast Walls: Breast Walls provisioned between Km 26.800to Km 31.000 and between Km 31.000 to Km 47.850 atlocations mentioned in Annexure V to Appendix ‘B’ arerecommended for execution on ground under CA No. CE/VTK/03/2009-10.

H

(f) Lined drain: Lined drain for 13271.00 Mtr length oftrapezoidal shape in plum concrete between Km 26.800and Km 47.850 at locations as arrived at after Joint Surveyand mentioned at Annexure-VI to Appendix ‘B’ arerecommended for execution on ground under CA No. CE/VTK/03/2009-10.

(g) Road Furniture: Road furniture provisioned between Km26.800 and Km 47.850 as per Annexure-VII to Appendix‘B’ are recommended for providing/fixing on ground underCA No. CE/VTK/03/2009-10.

25. Working drawings of all permanent structures (different sizes/types) are enclosed with this Board of Officers.

26. Construction of permanent structures at designated locationsor otherwise will only be executed after obtaining prior approvalof Engineer-in-Charge/OC Contract as per ground requirement.

27. The quantity of items of Permanent works as arrived at afterJoint Survey between Km 26.800 and Km 47.850 as per detailsgiven at Table-2 of Appendix ‘B’ are recommended for executionon ground and will form the basis of RAR payments to be madeas per Contract Provision/Stipulation during execution of worksunder CA No. CE/VTK/03/2009-10. Amendment in quantities ofpermanent works is recommended only during final stage ofcompletion of permanent works.

SURFACING WORKS

28. No surfacing works has been executed departmentally betweenKm 26.800 and Km 47.850. Quantities of various items of surfacingworks as arrived at after Joint Survey as per details given atAppendix ‘D’ are recommended for execution on ground underCA No. CE/VTK/03/2009-10.

SUMMARY OF PAVEMENT WORKS AS PER JOINT SVY

A

B

C

D

E

F

G

H

3Preparation of Sqm21227.210.00subgrade in HR 4 Sand Blanketting Sqm 21227.21 0.00 25mm 5GSB 150mm thickSqm97317.505.906 GSB 100mm thick Sqm 64229.50 2.60 7WMM 75mm thickSqm256370.3115.548 Prime coat over Sqm 85456.71 0.00 WMM surface 9 BM 50mm thick Sqm 85456.71 10.36 10 SDBC 25mm thick Sqm 85456.71 5.18 Total SurfacingKm Eqvt Cl-9 39.58

A

B

C

29. However, if the soil classification varies from the enclosedstrata as shown in (Annexure-I to Appx “C”), layer combinationshall be revised accordingly and be executed after prior approvalof OC Contract duly supported with photographs of Soil strata.

30. Amendment in quantities of surfacing works are recommendedDonly during final stage of completion of surfacing works.

xxxxxxCE/VTK/03/2009-10 ON ROAD LUMLA-TASHIGONGBETWEEN KM 26.800 TO KM 47.850Sl. Location Earth Work involved in CUM Earth Jungle Unlined Unlined No.work in Clearance Drain in Drain From To Cutting Emban-SR (M) in kment HR(M)SMB SR HR 1 26.800 31.000 18727.01 1735.04 7631. 42 0.00 0 125.00 217.80 2 31.000 47.850 356166.00182073.00337447.000.00 23123.0 2174.80 4928 Presiding OfficerLt Col Dhiraj Minotra, OC, 117 RCC (GREF) OC Contract Member1Sd/- (Comments KS, AE(Civil) Eng-in-Charge117 RCC (GREF)2Shri __________A Holder Authorized rep of M/s Puna Hinda E

F

6. The writ petitioner was directed not to cut extra road formationGwidth without obtaining proper written permission from the CompetentAuthority on 28.1.2013, and in case any formation work was carriedout, no payment shall be made after the report of the Board of Officers.

7. The Second in Command of the Unit sought approval of theHeadquarters on 24.10.2013 after the joint survey of formation cuttingH

was done by the Joint Survey Team. It is the said Joint Survey Reportwhich was rejected by the Competent Authority at the Headquarter,when the following communication was addressed to the field officewith a copy to the writ petitioner. The said communication of theCommissioner on 29.10.2013 reads as under:

A

“HeadquartersB763 Boarder Roads Task Force Pin-930763

C/O 99 APO

C

8001/715/EB

29 Oct 2013

117 RCC (GREF)

PIN 9300117

D

C/O 99 APO

CONSTRUCTION AND IMPROVEMENT OF ROADLUMLA TASHIGONG FROM KM 26.800 TO 47.800 SINGLELANE STANDARD UNDER PHASE ‘A’ OF SARDP INE INTWANG DISTT OF ARUNACHAL PRADESH:CA NO. CE(P)VTK/03/2009-10

E

Refer your letter No. 804/vtk/03/2009-10/79 dated 24 Oct 2013.

2. The documents namely base plan, details of curves and quantitycalculations and cross sections have been scrutinized and foundthat they are not in order.

F

3. Table 6.10 of hill road manual IRC:SP:46-1998 at Page No. 40is not correctly interpreted and marked on cross section. Minimumsight distance ‘m’ (P1 ref to sketch 6.1) at Page No. 40 of hillroad manual IRC SP.46-1996 is to be measured from centre lineof carriage way and not from the edge of the road way.

G

4. Hence, the above documents have not been approved bycompetent authority and cancelled herewith.

Sd/-

(MANV Prasad)SE (Civ)Commissioner

H

ACopy to

M/S Puna Hinda,C/O Time Video LibraryAkash Deep Market GangaBPot Itanagar Distt. Papum PareArunachal Pradesh Pin-791111.”

8. The writ petitioner was informed vide letter dated 24.3.2014 toprovide a breakup of the contract agreement amount of Rs.31.87 croresand also point out that initial joint survey was carried out by a teamCcomprising of then OC Contract, Engineer-In-charge, JE In-charge ofcontract and Contractor to assess the actual quantities of earth workbefore commencement of the work on ground. A comparison of thecontract amounts as well as amended contract amount was delineatedin Table 3 which reads as thus:

D

9. It was also pointed out that the formation work was completedon 20.9.2012 i.e., not four years back but two years back, as stated bythe writ petitioner. The writ petitioner was communicated that the unpaidamount on account of original formation work was Rs.74,33,631/- andRs.4 crores (approx.) for extra widening of road beyond 7.45 m. It wascommunicated as under:

E

F“….

(h) It is worth mentioning that vide your letter No. NCUBRO/ L-T/ADM/2013 dated 12 Jul 2013 (copy enclosed as Appx ‘D’)you claimed unpaid amount just Rs.74,33,631.00 on account oforiginal formation work and Rs. 4.00 Crores (approximately) onaccount of extra widening of road beyond 7.45m which is beyondthe scope of the contract and the same has already been intimatedto you vide this HQ letter No. 80914/L-T/26-47/114/E8 dated 19Aug 2013, in case you have any approval of the dept for doing-extra work or if there is any amendment to work order, the samemay please be forwarded for our perusal.

G

UNION OF INDIA & ORS. v. M/S PUNA HINDA[HEMANT GUPTA, J.]

3. In view of the above, it is submitted that each payment hasbeen released to you as per claim based on joint measurementand duly accepted by you till finalization of the formations workas per clause No 18(vi) of special conditions of contract at seriallypage 72 of contract agreement. Hence any extra claim after fifteenmonths of completion of formation work is baseless not correct.”

10. The writ petitioner communicated on 12.7.2013 that it wouldbe bound to stop/abandon the project work and the responsibility shall bethat of the department itself for projecting an indifferent attitude, if thedepartment cannot pay the work done by it as has been claimed. It wasalso asserted that the department may take over the remaining workand complete it themselves. The amount claimed in the said letter wasas under:

Unseen expenditure done on works

11. The writ petitioner submitted a final bill on 17.6.2014 andclaimed a sum of Rs.23,68,11,589.02. It was asserted therein that paymentfor amount claimed in the 18 running bills has been made, but in respectof 19[th] and 20[th] running bill, entries have been made in the measurementbook however the payment has not been cleared yet. The final billsubmitted by the writ petitioner was returned unactioned on 10.8.2014.The writ petitioner was informed that the payment up to 18 running billshad already exceeded the permissible approved amount includingescalation payment and was also informed of the following deficiencies:

“3. Also, the following queries/disputes have to be resolved forfinalization of the payment to be made through final bill:- A

B

C

D

E

F

G

H

A(a)Supporting documents to the final bill submitted by you on17 Jun 2014 are not found enclosed.

(b) Documents as asked vide our letter No. 604/CE/VTK/03.2009-10 189/E8 dated 02 Aug 2014 have not beensubmitted by you.

B

(c) Claims for extra work done in respect of earth workquantities beyond scope of contract claimed through yourvarious letters have been refuted by accepting officer inthis connection please refer HQ CE(P) Vartak letter No.C80914/L-T/26.800 to 47.850/326/E8 dated 18 Jul 2014 (copyenclosed).

(d) Joint survey earned out in respect of formation workscompleted against subject CA is under scrutiny and not yetapproved by competent Financial authority.

D

(e) Query in respect of escalation payment made againstformation works has been raised by HQ CE(P) Vartak toHQ DGBR vide their letter No. 80914/L-T/26.800 to 4785/286/E8 dated 28 Jun 2014 whose reply is awaited.

E(f)As per directions received vide Par 8 of HQ DGBR/ADGSectt letter No 71004/DGBR/25/ADG Sectt dated 25 Jul2014 and HQ CE(P) Vartak letter No B0914/L-T/26.800to 47.85/341/E8 dated 30 Jul 2014 (copy of both lettersenclosed) recovery of amount on account of non hancingFover the quantity of hard rock from the formation worksexecuted has to be incorporated in your final bill on receiptof reply from HQ CE(P) Vartak.

(g) Already matter in respect of disputes relating to subjectCA is with HQ DGBR.”

G

12. An inter-departmental communication was sent to HeadQuarters of Seema Sadak Bhawan (Border Road Office) on 17.4.2015that Board of Officers were not required to be appointed and AcceptingOfficer may take the requisite decision. In the status report underAppendix ‘A’ to the Head Quarter vide letter dated 26.5.2015, it wasHnoted as under:

“6. From the above it is evident that “work claimed to have beenexecuted” is much beyond “work ordered to the contractor”.Moreover the “excess work claimed to have been executed” bythe contractor has not been ordered by Accepting Officer orCommander of work or Officer Commanding or Engineer-in-Charge.

7. The “Joint Survey Report” on the basis of which contractor isasking additional payment has not been authenticated/admittedby the Chief Engineer(P) Vartak nor ordered by any authority.Therefore contractually contractor’s claim cannot be admitted.

8. All payments correctly due to contractor have been alreadymade.”

13. The terms of reference of the Board of Officers weredetermined on 22.7.2015, with copy of the letter to the writ petitioner, asunder:

“3. Terms of References of the Board of Officers will be as under:

(a) To carry out Joint Survey with Tetal Station from KM 26.800to 47.852 on Lumla-Tashigong road.

(b) To plot the Cross Section at suitable interval and LongitudinalSection with Corresponding RL.

(c) To ascertain whether any extra work or account of Bermfiling/shoulder or curves has been done.

(d) To measure the exact length and width of road after formationcutting.”

14. The writ petitioner objected to the constitution of the Board ofOfficers on 12.8.2015 and claimed a sum of Rs.23,68,11,589/-, breakupof which has been reproduced hereunder. The said claim was refutedby the appellants vide communication dated 27.8.2015. The constitutionof the Board of Officers was cancelled on 8.6.2015.

A

B

C

D

E

F

G

15. Thereafter, the writ petitioner filed a writ petition before theHigh Court on or about 23.11.2015 for quashing of the letter dated27.8.2015. The writ petitioner was informed vide the said letter to process Dthe bills through laid down channels before DC Contract and CommanderContract. The letter dated 21.10.2015 was also challenged which is areply to the notice under Section 80 of the Code of Civil Procedure,1908. A writ of mandamus was prayed for to pay a sum ofRs.31,57,16,134/- with 18% interest. In reply to the said writ petition, theassertions made by the writ petitioner were controverted but also anEobjection was raised that there was a clause for arbitration for resolvingdisputes arising between the parties, therefore, the writ petitioner shouldhave approached the designated authority by appointment of an arbitrator.

16. The appellants in their affidavit had pointed out that aftercompletion of the formation work, the writ petitioner had communicatedFexpenses of Rs.16,93,51,980/- as against provision of Rs.16,26,71,039.40.It was asserted that the writ petitioner has been paid a sum of Rs.42.27crores as against original cost of Rs.31.01 crores whereas the contractorhas claimed a total sum of Rs.71.86 crores. The letter dated 29.10.2013has been issued by the Headquarters, Border Road Task Force statingthat the minimum distance was to be measured from center line ofGcarriage way and not from the edge of the roadway. Thus, the entireclaim was based upon imaginary and arbitrary grounds which wasenhanced from time to time.

17. Mr. Nataraj, learned ASG appearing for the appellants, pointedout that there are serious disputes about the facts in respect of authenticityH

of the Joint Final Report and the work done. Therefore, such disputedquestion of facts could not have been adjudicated by the Writ Court asdisputed question of facts relating to recovery of money could not havebeen entertained thereunder. Reliance has been placed upon the judgmentof this Court reported as Kerala State Electricity Board & Anr. v.Kurien E. Kalathil & Ors.[2 ]wherein it was held as under:

“10. We find that there is a merit in the first contention of MrRaval. Learned counsel has rightly questioned the maintainabilityof the writ petition. The interpretation and implementation of aclause in a contract cannot be the subject-matter of a writ petition.Whether the contract envisages actual payment or not is a questionof construction of contract. If a term of a contract is violated,ordinarily the remedy is not the writ petition under Article 226.We are also unable to agree with the observations of the HighCourt that the contractor was seeking enforcement of a statutorycontract. A contract would not become statutory simply becauseit is for construction of a public utility and it has been awarded bya statutory body. We are also unable to agree with the observationof the High Court that since the obligations imposed by the contracton the contracting parties come within the purview of the ContractAct, that would not make the contract statutory. Clearly, the HighCourt fell into an error in coming to the conclusion that the contractin question was statutory in nature.

11. A statute may expressly or impliedly confer power on a statutorybody to enter into contracts in order to enable it to discharge itsfunctions. Dispute arising out of the terms of such contracts oralleged breaches have to be settled by the ordinary principles oflaw of contract. The fact that one of the parties to the agreementis a statutory or public body will not by itself affect the principlesto be applied. The disputes about the meaning of a covenant in acontract or its enforceability have to be determined according tothe usual principles of the Contract Act. Every act of a statutorybody need not necessarily involve an exercise of statutory power.Statutory bodies, like private parties, have power to contract ordeal with property. Such activities may not raise any issue of publiclaw. In the present case, it has not been shown how the contractis statutory. The contract between the parties is in the realm of A

B

C

D

E

F

G

H

Aprivate law. It is not a statutory contract. The disputes relating tointerpretation of the terms and conditions of such a contract couldnot have been agitated in a petition under Article 226 of theConstitution of India. That is a matter for adjudication by a civilcourt or in arbitration if provided for in the contract. Whether anyamount is due and if so, how much and refusal of the appellant toBpay it is justified or not, are not the matters which could havebeen agitated and decided in a writ petition. The contractor shouldhave relegated to other remedies.”

18. Mr. Nataraj also placed reliance on the judgment of this Courtreported as Joshi Technologies International Inc v. Union of IndiaC& Ors.[3] wherein the following was held:

“55. Law in this aspect has developed through catena of judgmentsof this Court and from the reading of these judgments it wouldfollow that in pure contractual matters the extraordinary remedyof writ under Article 226 or Article 32 of the Constitution cannotDbe invoked. However, in a limited sphere such remedies areavailable only when the non-Government contracting party is ableto demonstrate that it is a public law remedy which such partyseeks to invoke, in contradistinction to the private law remedysimpliciter under the contract. Some of the case law to bring homeEthis cardinal principle is taken note of hereinafter.

xx

xx

xx

xx

xx

xx

59. On the basis of these facts, this Court observed that theaforesaid observations of the High Court relying upon RamanaDayaram Shetty case [(1979) 3 SCC 489 : (1979) 2 LLJ 217]Fwere not correct. Thus observed the Court, speaking throughRatnavel Pandian, J.: (Ajai Pal Singh case [(1989) 2 SCC 116 :(1989) 1 SCR 743], SCC pp. 125-26, paras 21-22)

“21. This finding in our view, is not correct in the light of thefacts and circumstances of this case because in RamanaGDayaram Shetty case [(1979) 3 SCC 489 : (1979) 2 LLJ 217]there was no concluded contract as in this case. Evenconceding that the BDA has the trappings of a State or wouldbe comprehended in ‘other authority’ for the purpose of Article12 of the Constitution, while determining price of the houses/

H3 (2015) 7 SCC 728

flats constructed by it and the rate of monthly instalments tobe paid, the ‘authority’ or its agent after entering into the fieldof ordinary contract acts purely in its executive capacity.Thereafter the relations are no longer governed by theconstitutional provisions but by the legally valid contract whichdetermines the rights and obligations of the parties inter se. Inthis sphere, they can only claim rights conferred upon them bythe contract in the absence of any statutory obligations on thepart of the authority (i.e. BDA in this case) in the saidcontractual field.

22. There is a line of decisions where the contract enteredinto between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governedonly by the terms of the contract, no writ or order can beissued under Article 226 of the Constitution of India so as tocompel the authorities to remedy a breach of contract pureand simple — Radhakrishna Agarwal v. State of Bihar[(1977) 3 SCC 457], Premji Bhai Parmar v. DDA [(1980) 2SCC 129] and Divl. Forest Officer v. Bishwanath Tea Co.Ltd. [(1981) 3 SCC 238 : (1981) 3 SCR 662] “

xxxx

69. The position thus summarised in the aforesaid principles hasto be understood in the context of discussion that preceded whichwe have pointed out above. As per this, no doubt, there is noabsolute bar to the maintainability of the writ petition even incontractual matters or where there are disputed questions of factor even when monetary claim is raised. At the same time,discretion lies with the High Court which under certaincircumstances, it can refuse to exercise. It also follows that underthe following circumstances, “normally”, the Court would notexercise such a discretion:

69.1. The Court may not examine the issue unless the action hassome public law character attached to it.

69.2. Whenever a particular mode of settlement of dispute isprovided in the contract, the High Court would refuse to exerciseits discretion under Article 226 of the Constitution and relegatethe party to the said mode of settlement, particularly when AB

C

D

E

F

G

H

Asettlement of disputes is to be resorted to through the means ofarbitration.

69.3. If there are very serious disputed questions of fact whichare of complex nature and require oral evidence for theirdetermination.

B69.4. Money claims per se particularly arising out of contractualobligations are normally not to be entertained except in exceptionalcircumstances.”

19. It was thus argued that in view of the arbitration clauseavailable to resolve the disputes, the order of the High Court wasCunwarranted and untenable. It was also argued that the High Court inthe impugned order has held that resurvey was not possible as fivemonsoons have passed, therefore, the appellants were directed to approvethe DPR and pay the pending bills on the basis of Final Joint Report.

20. The letter dated 27.8.2015 was issued by the Chief Engineer,DProject Vartak denying the allegations levelled by the writ petitioner andinforming the writ petitioner that the Board of Officers is being cancelledat his request. It was also pointed out that the Board of Officers wasconstituted at the request of the writ petitioner to resolve the matter.The letter dated 21.10.2015 was in fact reply to the notice served by theEpetitioner under Section 80 of Code of Civil Procedure, 1908.

21. Ms. Meenakshi Arora, learned senior counsel for the writpetitioner, contended that the officer who had written suchabovementioned letter was not the competent authority to write the same.Such argument was based upon an averment in the memorandum ofFappeal. The memorandum of appeal was signed by the panel counseland was not supported by any affidavit of an officer of the appellant.We do not find any merit in the said argument raised. The letter itselfstated that it has been approved by the Competent Authority. It appearsthat the decision was taken by the competent authority but thecommunication was issued by an officer on behalf of the competentGauthority. The basis of Joint Survey Report itself has been found to befallacious. This Report appears to be a friendly act of some of the officersof the appellant, to grant benefit to the writ petitioner, though even notclaimed by the petitioner at an early stage. The claim ofRs.23,68,11,589.02 in the letter dated 17.6.2014 has swelled into an amountof Rs. 35,51,80,651 as per the notice under Section 80 of the Code.H

UNION OF INDIA & ORS. v. M/S PUNA HINDA[HEMANT GUPTA, J.]

Therefore, for the purposes of these proceedings, the communicationdated 29.10.2013 cannot be permitted to be disputed by the writ petitioner.

AB

22. The Board of Officers convened its meeting but the samewas cancelled vide communication dated 8.6.2015. Thus, an attempt bythe appellants to resolve the disputes regarding the measurements byconstituting Board of Officers was scuttled by the writ petitioner for thereasons best known to him.

23. The High Court has based its order on the ground that afterfive monsoons, the final measurements could not be ascertained. If thefinal measurements could not be done at the spot, the contemporaryevidence and the measurement books prepared from time to time couldbe the basis for determining the liability of the appellants. The Joint SurveyReport is not an admitted measurement, though some officers mighthave signed it. The Report prepared after the completion of work whereinno such work done is reflected in the measurement book prepared duringexecution of work is an attempt to inflate the claim raised by the writpetitioner. The entire amount claimed by the writ petitioner is disputed.It has been asserted that the entire payment due as against the claim ofwork order had been made, as reflected from the following table:

C

D

H

C

D

H

A24. Therefore, the dispute could not be raised by way of a writpetition on the disputed questions of fact. Though, the jurisdiction of theHigh Court is wide but in respect of pure contractual matters in the fieldof private law, having no statutory flavour, are better adjudicated uponby the forum agreed to by the parties. The dispute as to whether theamount is payable or not and/or how much amount is payable are disputedBquestions of facts. There is no admission on the part of the appellants toinfer that the amount stands crystallized. Therefore, in the absence ofany acceptance of Joint Survey Report by the competent authority, noright would accrue to the writ petitioner only because measurementscannot be undertaken after passage of time. Maybe, the resurvey cannotCtake place but the measurement books of the work executed from timeto time would form a reasonable basis for assessing the amount due andpayable to the writ petitioner, but such process could be undertaken onlyby the agreed forum i.e., arbitration and not by the Writ Court as it doesnot have the expertise in respect of measurements or construction ofroads.D25. A perusal of the matter shows that collusion of some of theofficers of the appellants with the contractor cannot be ruled out. Suchcollusion seems to be the basis of the writ petition filed before the HighCourt.

E26. In view of the above discussion, we deem it appropriate toallow the present appeal while dismissing the writ petition filed by thewrit petitioner before the High Court.

F

Ankit Gyan

Appeal allowed.

G

H