Page No.# 1/6 GAHC010122732020 2025:GAU-AS:3938 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/3575/2020 ANURAG PODDAR S/O- LT. MAHABIR PRASAD PODDAR, SOLE PROPRIETOR OF M/S. BRAHMAPUTRA CONSTRUCTIONS, HAVING HIS PRINCIPAL PLACE OF BUSINESS AT GROUND FLOOR, RKG COMPLEX, A.T.ROAD, OPP. SBI ATM, BHARALUMUKH, P.O.- GHY-09, DIST.- KAMRUP (M), ASSAM VERSUS THE UNIVERSITY GRANTS COMMISSION AND 3 ORS. REP. BY ITS CHAIRMAN, ROOM NO. 102, BAHADURSHAH, ZAFAR MARG, NEW DELHI- 110002 2:THE UNIVERSITY GRANTS COMMISSION NERO REP. BY ITS EDUCATION OFFICER 3RD FLOOR HOUSEFED RENTAL BLOCK NO. V BELTOLA BASISTHA ROAD DISPUR GHY-06 ASSAM 3:THE DIMORIA COLLEGE KHETRI REP. BY ITS PRINCIPAL DIMORIA COLLEGE KHETRI PIN- 782403 DIST.- KAMRUP (M) ASSAM Page No.# 2/6 4:MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL (MSEFC) ASSAM COMMISSIONER OF INDUSTRIES GOVT. OF ASSAM UDYOG BHAWAN BAMUNIMAIDAN INDUSTRIAL ESTATE GHY DIST.- KAMRUP (M) ASSAM PIN- 78102 Advocate for the Petitioner : MR. O P BHATI, MR. M K GOGOI,MR. T C DAS,MR. P SARMA,MR. S K GUPTA Advocate for the Respondent : SC, U G C, MR. B BORAH (R-3),MR. G K MEDHI(R-3) BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER 02.04.2025 1. Heard Mr. O. P. Bhati, learned counsel for the petitioner. Also heard Mr. G. K. Medhi, learned counsel for the respondent No. 3 and Mr. R. Bhuyan, learned counsel on behalf of Mr. A. Chamuah, learned counsel for the respondent Nos. 1 and 2. None appears for the respondent No. 4. 2. The petitioner was awarded a contract to execute the works of construction of (a) Swimming pool including boundary wall, changing room, toilet, store, pump house, plumbing, landscaping, tiles fitting, boring, septic tank, overhead tank, waterproofing, earthwork, construction of two rooms guest house with balcony and bathrooms on the top of the changing room, gallery of three rows on the one side of the boundary wall, (civil, sanitary, water supply, electrical machinery etc.) and (b) supply, installation and commissioning of mechanical, electro mechanical equipments (on turnkey basis) by the respondent No. 3 valued at Rs. Page No.# 3/6 1,00,00,000/- (Rupees One Crore) to be completed within 6 months vide work order No. DCK/13/9-054 dated 17.12.2013. 3. According to the petitioner, the petitioner commenced the work at the site on 01.01.2014. It is the case of the petitioner that though he has completed more or less 70% of works by 30.04.2014, but the balance work was not carried out by the petitioner for the reason of non-payment of cost of the imported electro- mechanical equipments as well as inaction of the respondents to remove the high tension electric line. 4. The petitioner submitted running bill for a total amount of Rs. 70,14,473/- and the payment of Rs. 50,00,000/- has been made by the respondent authority and an amount of Rs. 20,14,473/- still remain unpaid. 5. Referring to the Annexures-E & F, Mr. Bhati, learned counsel for the petitioner submits that there is an unequivocal admission on the part of the respondent No. 3, admitting the due of Rs, 20,14,473/- inasmuch as the respondent No. 3 communicated the UGC who is the financing authority for the project that Rs. 20,14,473/- is required to be paid to the petitioner for execution of the work and the balance amount will be paid as per progress of work/ on completion of work. 6. Referring to the Annexure-F i.e. the communication dated 03.12.2019, Mr. Bhati, the learned counsel for the petitioner submits that the Principal of the college admitted that the petitioner has already been completed 70% of construction work and being paid Rs. 50,00,000/- and the remaining balance amount of Rs. 20,14,473/- will be paid when it is released by the respondent Nos. 1 and 2 i.e. the UGC, NERO. 7. The UGC has not filed any affidavit in this regard, however, the respondent No. 3 has filed an affidavit. Page No.# 4/6 8. The important pleadings in the aforesaid affidavit which are necessary for determination of the present writ petition are recorded herein below:- I. At paragraph 5 of the affidavit, the respondent has taken a stand that even after paying Rs. 50,00,000/- to the petitioner, the petitioner stopped the construction work without informing to the respondent inasmuch as the respondent had timely removed the high tension electricity line and also had taken utmost effort to continuously make payment of the running bills, as asked by the petitioner. II. At paragraph 9 of the affidavit, a stand has been taken that the running bills were paid by the respondent according to the progress and approved by Construction Committee of the construction work amounting to Rs. 50,00,000/-, III. At paragraph 11 of the affidavit, the respondent stated that running bills were paid according to the progress of the construction work and therefore, non-payment of 70% of the cost of the imported electro mechanical equipments is not admitted by the respondent. It is further stated in the said paragraph that on the other hand, the petitioner stopped the construction of swimming pool without prior information to the respondent. 9. The petitioner has also filed an reply-affidavit to the affidavit-in-opposition filed by the respondent No. 3 denying such contention and taking a stand that there is no fault on the part of the petitioner to complete the work but same was stopped by the petitioner for non-payment of running bills after due intimation to the respondent No. 3. It is also contended in the reply-affidavit that the respondent has admitted to pay advance for 70% against purchase of electro mechanical equipments, however, they failed to pay the aforesaid amount. Page No.# 5/6 10. On the other hand, the respondent in their affidavit has denied such contention more particularly, alleges that the petitioner has abandoned the work without information. 11. In the aforesaid backdrop, now this Court is to decide whether a writ of mandamus can be issued directing the respondent to pay the amount of Rs. 20,14,473/- to the petitioner. 12. This Court has given anxious consideration to the submissions advanced by the learned counsel for the parties. Also perused the agreement entered into between the parties for execution of the works as well as the work order. 13. In terms of the work order, the payment is required to be made for civil work according to the progress of the work and approved by the college construction committee and for purchase of imported electro mechanical equipments, 70% of the cost of the equipments will be given as an advance after due approval of the college construction committee. 14. From the aforesaid, it is seen that the contract is between an instrumentality of the State and the petitioner and from the pleading of both the parties, it is also seen that the dispute is relatable to breach of contract. On the one hand, the petitioner asserts that he could not execute the work for the fault of the respondent, particularly, for three reasons that (i) non removal of high tension electric line above the proposed swimming pool and (ii) the respondents have failed to adhere to the condition of 70% advance against the imported electro mechanical equipments and (iii) non-payment of the remaining due. On the other hand, the respondent No. 3 contends that they had already paid the running bill to the petitioner, the petitioner had abandoned the work and the authority has time removed the high tension electric line. 15. It is true that in case, the State is a party to the contract and a breach of Page No.# 6/6 contract is alleged against the State, a civil action is the appropriate forum though it cannot be said that in all cases, writ petition shall not be maintainable inasmuch as such writ petition shall be maintainable in a given facts of the case, when the State fails to act fairly and their action is arbitrary. However, as held in M. P. Power Management Company Limited –Vs- M/s Sky Power Southest Solar India reported in 2023 2 SCC 703, every case, involving breach of contract by the State, cannot be dressed up and disguised as a case of arbitrary State action. 16. In the case in hand as recorded hereinabove, the issue revolves is to the effect that whether the petitioner could not complete the work in due time for non- payment of outstanding due and/or for non-payment of 70% advance as agreed when the respondent has taken a stand that the petitioner has abandoned the project and denied the contention at paragraph 9 as regards non-payment of advance of 70%. 17. In the considered opinion of this Court, such allegation and counter allegation cannot be decided in a writ proceeding which requires adjudication of serious disputed question of facts. 18. In view of the aforesaid, this Court finds no merit in this writ petition. Accordingly, same stands dismissed. However, this order shall not preclude the petitioner to exercise and opt for any other remedy available under law for redressal of his grievance and this order shall not be treated as any comment on the claim or counter claim of the contesting parties. JUDGE Comparing Assistant