IN THE HIGH COURT OF JUDICATURE AT PATNA

Letters Patent Appeal No.627 of 2023

In

Civil Writ Jurisdiction Case No.2718 of 2023

CNR No. BRHC010378082023

======================================================

Binod Kumar Mishra S/o Shri Paras Mishra, Resident of Vill and P.O.-

Durgadih, P.S.-Bikramganj, Dist-Rohtas (Sasaram), Bihar-802212.

... ... Appellant/s

Versus

1.The State of Bihar through Principal Secretary, Urban Development and

Housing Department, Govt. of Bihar.

2.The Executive Engineer cum Project Director District Urban Development

Agency under the Department of Urban Development and Housing, (Duda)

Rohtas, Govt. of Bihar.

3.The Executive Engineer, Bihar Urban Infrastructure Development

Corporation Ltd. Rohtas, Sasaram.

... ... Respondent/s

======================================================

Appearance :

For the Appellant/s: Mr. Deo Prakash Singh, Adv.

For the State : Mr. Yogendra Prasad Sinha, AAG-7

Mr. Rajeev Kumar Sinha, AC to AAG-7

For the BUIDCO : Mr. Lalit Kishore, Sr. Adv.

Mr. Rabindra Kumar Priyadarshi, Adv.

======================================================

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

and

HONOURABLE MR. JUSTICE SOURENDRA PANDEY

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

Date : 30-10-2026

The present appeal has been filed against the order dated

29.03.2023, passed by the Ld. Single Judge of this Court in

CWJC No. 2718 of 2023, whereby and whereunder the writ

petition has been dismissed as not maintainable on the ground

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that in view of the provisions contained in the Commercial

Court Act, 2015, the petitioner is having an alternative and

efficacious remedy under the law.

2.The brief facts of the case, according to the appellant are

that the Respondents had published E-Tender bearing No. 02/

2014-15/DUDA/Rohtas in the newspaper and on the website,

pursuant whereto the appellant had participated in the tender

and was declared L-1, leading to allotment of work orders dated

14.11.2014 bearing nos. 2, 9 & 11, pertaining to construction of

PCC Road under Ward No. 16, Nagar Panchayat, Vikramganj,

Rohtas for the year, 2013-14, construction of PCC road and

drain under Ward No. 16, Nagar Panchayat, Vikramganj, Rohtas

& construction of Ghat at Kesath Rajwaha No. 1 under Ward

No. 16, Nagar Panchyat, Vikramganj, Rohtas. The appellant had

then entered into three agreements bearing Agreement No.

37/2014-15, 39/2014-15 and 42/2014-15, all dt. 27.12.2014 with

the Executive Engineer, District Urban Development Agency

(hereinafter referred to as “the DUDA”), Rohtas, Sasaram.

Thereafter, the appellant is stated to have commenced the work

and completed the same successfully within time, whereafter

measurement and physical verification was undertaken by the

competent authority and work bills were generated.

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3.It is the case of the appellant that though the value of

work done with respect to agreement no. 37/2014-15, agreement

no. 39/2014-15 and agreement no. 42/2014-15 were claimed by

him to be a sum of Rs. 7,53,525/- (work done value as per Pg.

No. 126 of the writ petition is Rs. 6,71,700/-), Rs. 76,863 (work

done value as per Pg. No. 133 of the writ petition is Rs. 71,852/)

and Rs. 17,38,103/- (work done value as per Pg. No. 109 of the

writ petition is Rs. 12,46,723/-) respectively, however part

payment to the tune of Rs. 3,80,000/, Rs. 38,000/- and Rs.

8,55,000/- was sanctioned, whereupon payment was made after

statutory deductions, in the year 2015. The appellant had then,

vide letters dt. 29.8.2017, 12.9.2017, 10.11.2022 & 23.12.2022,

requested the Executive Engineer/Project Director, DUDA,

Rohtas at Sasaram for making payment of the balance outstanding

dues, however to no avail. In fact, an FIR was lodged against all

the contractors including the appellant bearing Sasaram Nagar

P.S. Case No. 1326/2015 under Sections 419/420/409/467/468/

47 of the Indian Penal Code, wherein the police has already

submitted its investigation report stating therein that in

publication of fake tenders, there is no complicity of the

contractors. The appellant herein being aggrieved by non-

payment of the outstanding dues had filed a writ petition bearing

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CWJC No. 2718 of 2023, however the same has stood dismissed

being not maintainable in view of the fact that the appellant is

having an alternative and efficacious remedy under the law.

4.The learned counsel for the appellant has submitted that

the appellant has completed the entire work under the aforesaid

three agreements to the satisfaction of all concerned, whereafter

work completion certificate has also been issued and part

payment has also been made but the balance amount of

outstanding dues for the work completed by the appellant as per

the agreements in question has not been paid. In this connection,

the learned counsel for the appellant has referred to a judgment

rendered by the Hon’ble Apex Court in the case of ABL

International Ltd. & Anr. vs Export Credit Guarantee

Corporation of India Ltd. & Ors., reported in (2004) 3 SCC 553,

paras no. 19, 27 and 52 whereof are reproduced herein below:-

“19. Therefore, it is clear from the above enunciation of

law that merely because one of the parties to the

litigation raises a dispute in regard to the facts of the

case, the court entertaining such petition under Article

226 of the Constitution is not always bound to relegate

the parties to a suit. In the above case of Gunwant Kaur

[(1969) 3 SCC 769] this Court even went to the extent of

holding that in a writ petition, if the facts require, even

oral evidence can be taken. This clearly shows that in an

appropriate case, the writ court has the jurisdiction to

entertain a writ petition involving disputed questions of

fact and there is no absolute bar for entertaining a writ

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petition even if the same arises out of a contractual

obligation and/or involves some disputed questions of

fact.

27. From the above discussion of ours, the following

legal principles emerge as to the maintainability of a writ

petition:

(a) In an appropriate case, a writ petition as against a

State or an instrumentality of a State arising out of a

contractual obligation is maintainable.

(b) Merely because some disputed questions of fact

arise for consideration, same cannot be a ground to

refuse to entertain a writ petition in all cases as a

matter of rule.

(c) A writ petition involving a consequential relief of

monetary claim is also maintainable.

52. On the basis of the above conclusion of ours, the

question still remains why should we grant the reliefs

sought for by the appellants in a writ petition when a

suitable efficacious alternate remedy is available by way

of a suit. The answer to this question, in our opinion, lies

squarely in the decision of this Court in the case of

Shrilekha Vidyarthi [(1991) 1 SCC 212] wherein this

Court held: (SCC pp. 235-37, paras 20-22 & 24)

The requirement of Article 14 should extend even in the

sphere of contractual matters for regulating the

conduct of the State activity. Applicability of Article 14

to all executive actions of the State being settled and

for the same reason its applicability at the threshold to

the making of a contract in exercise of the executive

power being beyond dispute, the State cannot

thereafter cast off its personality and exercise

unbridled power unfettered by the requirements of

Article 14 in the sphere of contractual matters and

claim to be governed therein only by private law

principles applicable to private individuals whose

rights flow only from the terms of the contract without

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anything more. The personality of the State, requiring

regulation of its conduct in all spheres by requirements

of Article 14, does not undergo such a radical change

after the making of a contract merely because some

contractual rights accrue to the other party in

addition. It is not as if the requirements of Article 14

and contractual obligations are alien concepts, which

cannot coexist. The Constitution does not envisage or

permit unfairness or unreasonableness in State actions

in any sphere of its activity contrary to the professed

ideals in the preamble. Therefore, total exclusion of

Article 14 — non-arbitrariness which is basic to rule

of law — from State actions in contractual field is not

justified. This is more so when the modern trend is also

to examine the unreasonableness of a term in such

contracts where the bargaining power is unequal so

that these are not negotiated contracts but standard

form contracts between unequals.

Unlike the private parties the State while exercising its

powers and discharging its functions, acts indubitably,

as is expected of it, for public good and in public

interest. The impact of every State action is also on

public interest. It is really the nature of its personality

as State which is significant and must characterize all

its actions, in whatever field, and not the nature of

function, contractual or otherwise, which is decisive of

the nature of scrutiny permitted for examining the

validity of its act. The requirement of Article 14 being

the duty to act fairly, justly and reasonably, there is

nothing which militates against the concept of

requiring the State always to so act, even in

contractual matters. This factor alone is sufficient to

import at least the minimal requirements of public law

obligations and impress with this character the

contracts made by the State or its instrumentality. It is

a different matter that the scope of judicial review in

respect of disputes falling within the domain of

contractual obligations may be more limited and in

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doubtful cases the parties may be relegated to

adjudication of their rights by resort to remedies

provided for adjudication of purely contractual

disputes. However, to the extent, challenge is made on

the ground of violation of Article 14 by alleging that

the impugned act is arbitrary, unfair or unreasonable,

the fact that the dispute also falls within the domain of

contractual obligations would not relieve the State of

its obligation to comply with the basic requirements of

Article 14. To this extent, the obligation is of a public

character invariably in every case irrespective of there

being any other right or obligation in addition thereto.

An additional contractual obligation cannot divest the

claimant of the guarantee under Article 14 of non-

arbitrariness at the hands of the State in any of its

actions.”

5.The learned counsel for the appellant has next relied on a

judgment rendered by the Hon’ble Apex Court in the case of

Surya Constructions vs. State of Uttar Pradesh & Others,

reported in (2019) 16 SCC 794 to submit that in case there is no

dispute with regard to the amount to be paid, the High Court

should intervene under Article 226 of the Constitution of India.

The learned counsel for the appellant has also relied on a

judgment rendered by a coordinate Bench of this Court in the

case of Fulena Construction Pvt. Ltd. vs. State of Bihar,

reported in 2022 (3) PLJR 717, paragraphs no. 19 to 21 whereof

are reproduced herein below:-

19. In the present case, no validity of any proceeding in

the legislature of a State has been called in question on

the ground of any alleged irregularity of procedure. The

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petitioner's claim is against the State Government of

Bihar for payment of dues arising out of a contract,

which is admitted. Admittedly the State Government has

made a request for deletion of clause 2.2.3 of CAG

report. After having admitted these facts, the State

Government cannot deny its liability to pay. The State-

respondent cannot be allowed to approbate and reprobate

in the same transaction. The doctrine of approbate and

reprobate has been lucidly summarized by the Supreme

Court in a recent decision in case of Union of India and

Ors. vs. N. Murugesan and Ors. reported in (2022) 2

SCC 25 paragraph 26 of which reads thus:-

"The phrases "approbate and "reprobate" are

borrowed from the Scots law. They would only mean

that no party can be allowed to accept and reject the

same thing, and thus one cannot blow hot and cold.

The principle behind the doctrine of election is inbuilt

in the concept of approbate and reprobate. Once again,

it is a principle of equity coming under the contours of

common law. Therefore, he who knows that if he

objects to an instrument, he will not get the benefit he

wants cannot be allowed to do so while enjoying the

fruits. One cannot take advantage of one part while

rejecting the rest. A person cannot be allowed to have

the benefit of an instrument while questioning the

same. Such a party either has to affirm or disaffirm the

transaction. The principle has to be applied with more

vigour as a common law principle if such a party

actually enjoys the one part fully and on near

completion of the said enjoyment, thereafter questions

the other part. An element of fair play is inbuilt in its

principle. It is also a species of estoppel dealing with

the conduct of a party.”

20. While laying down the law, the Supreme Court in case

of N. Murugesan (supra) has noticed various previous

decisions rendered by the Supreme Court including the

one in case of Rajasthan Industrial Development and

Investment Corporation and Anr. vs. Diamond and Gem

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Development Corporation Ltd. & Anr. reported in (2013)

5 SCC 470, wherein the Supreme Court has laid down

that a party cannot be permitted to "blow hot-blow cold",

"fast & loose" or "approbate & reprobate". The Supreme

Court has held that where one knowingly accepts the

benefits of a contract, he is estopped from denying the

validity of, or binding the effect of such contract.

21. We need not reiterate the settled legal position that

even in contractual matters, the public authorities have a

duty to act fairly, justly & reasonably, which is requirement

of Article 14 of the Constitution of India. In the present

case, the respondent-State of Bihar appears to have

denied payment to the petitioner even after having

utilized its services for the purpose of execution of work

on a ground, not germane for denial of the petitioner's

claim.”

6.Thus, it is submitted by the Ld. counsel for the appellant

that the Respondents ought to be directed to make payment of

the balance outstanding dues of the appellant in view of the law

laid down by the Hon’ble Apex Court and this Court.

7.Per contra, the Ld. Senior Counsel for the Respondents,

Sri Lalit Kishore, assisted by Sri Rabindra Kumar Priyadarshi,

Advocate has at the outset submitted that though the work was

completed and admissible amount of payment due was made to

the appellant in the year 2015, however he filed the connected

writ petition belatedly only in the year 2023, i.e. after lapse of

more than seven years, thus on the ground of delay itself, the

writ petition was liable to be dismissed. It is submitted that

complaints were received regarding the notice inviting tenders

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issued by the Respondents to the effect that the same were

published and decided in a collusive manner as also the same

were stage managed since its inception to cause financial loss to

the Government. Thereafter, an enquiry was made and then FIR

was instituted against the officials of the Respondents and the

contractors as also it was directed that there shall be a complete

ban in making any further payment to any contractor in

connection with NIT No. 2/2014-15 and 3/2014-15. In fact,

departmental proceedings were also initiated against various

Engineers of the State Government, thus huge irregularities and

illegalities were prevailing in issuance of the aforesaid NITs and

award of contracts.

8.The Ld. Senior Counsel for the Respondents has relied on

a judgment rendered by the Ld. Single Judge dated 13.09.2019,

passed in CWJC No. 10710 of 2016 (M/s Ankuj Construction

vs. The State of Bihar & Ors.) to submit that in similar matter,

the writ petitioner of the said case was granted liberty to seek

his remedy, if so advised, before the Arbitration Tribunal

constituted under the Bihar Public Works Contract Arbitration

Tribunal Act, 2008. It would be relevant to reproduce the

relevant paragraphs of the said judgment rendered in the case of

M/s Ankuj Construction (supra) herein below:-

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“It further appears that a supplementary counter

affidavit has also been filed on behalf of the respondent

no. 3 to 5. In the said counter affidavit also much

emphasis has been given on the facts which are already

taken note of hereinabove. The supplementary counter

affidavit has brought on record a letter dated 05.10.2015

written by the Principal Secretary, Urban Development

Department to the District Magistrate, Rohtas in which it

is stated that the Information and Public Relation

Department has submitted a report that the tenders

issued were fake and the then Executive Engineer was

involved in the matter.

It is submitted that a perusal of the letter as contained in

Annexure ‘F’ to the supplementary counter affidavit

would show that it nowhere refers the NITs with reference

to which the work were allotted to this petitioner. It is a

general kind of letter advising the District Magistrate to

get examined the tenders which have been published by

DUDA, Rohtas during the last three years.

After the directions issued by this court, a counter

affidavit has been filed on behalf of the DUDA through

it’s Executive Engineer. In it’s counter affidavit once

again the aforesaid facts have been repeated and the fact

that F.I.R. has been lodged against the then Executive

Engineer has been highlighted. It is submitted by learned

counsel for the petitioner that this affidavit also nowhere

discloses that the NIT under which the work were allotted

to the petitioner have been specifically verified and have

been found to be forged.

After imposition of a cost of Rs. 2000/- the State Urban

Development Department has filed a counter affidavit.

The counter affidavit of the department is no better than

but have been stated in the counter affidavit of the

aforesaid respondents. The departmental affidavit takes

note of the Three Men Committee constituted by the

District Magistrate vide letter no. 432 dated 06.11.2015.

The affidavit is although silent about the report of the

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Three Men Committee, but learned counsel for the DUDA

has brought to the notice of this court letter bearing no.

613 dated 30th April, 2015 written by the Executive

Engineer, DUDA Rohtas to Deputy Development

Commissioner, Rohtas in which he has doubted the

manner in which the E-Tender were sanctioned by the

then Executive Engineer. He has also brought to the

notice of this court the Three Men Committee’s report as

contained in Annexure ‘2’ to the supplementary counter

affidavit. The 3 Men Committee in his report has

submitted that they were not made available the

documents relating to 62 schemes which included the

scheme in which tenders were allegedly floated by the

then Executive Engineer under the financial year 2013-

14.

Learned counsel for the DUDA as well as the State has

submitted before this court that in the nature of

controversy it would only be just and proper that the

matter be considered after looking into various materials

and evidences by the arbitration tribunal constituted

under the Bihar Public Works Contract Arbitration

Tribunal Act, 2008, in fact a stand to this effect has been

taken in their counter affidavit that the writ application

be not entertained and the petitioner be relegated to the

alternative remedy of arbitration.

In the given facts and circumstances of the case after

noticing the facts and the kind of controversy which have

been raised before this court, the court deems it just and

proper not to entertain the writ application and leave it

open for the petitioner to seek his remedy, if so advised,

before the Arbitration Tribunal constituted under the

Bihar Public Works Contract Arbitration Tribunal Act,

2008.

The Writ Application stands disposed of with the

aforesaid liberty to the petitioner.”

9.The Ld. Senior Counsel for the respondents has next

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submitted that it is a well-settled law that if a writ petition is

filed after inordinate delay and especially after expiry of the

period of limitation prescribed for a civil action by way of filing

suit before a competent Civil Court or where the period of

limitation prescribed for availing the alternative and efficacious

remedy is over, the Court ought not to ordinarily lend its aid to a

party by the extraordinary remedy under Article 226 of the

Constitution of India and it would be sound use of discretion to

leave the party to seek his remedy by the ordinary mode of

action. In this regard, the Ld. Senior Counsel for the

Respondents has referred to a Constitution Bench judgment

rendered by the Hon’ble Apex Court in the case of State of

Madhya Pradesh & Anr. vs. Bhailal Bhai & Others, reported in

AIR 1964 SC 1006, para nos. 14 to 17 and 21 whereof are

reproduced herein below:-

“14. A portion of the tax thus assessed has been already

paid by the petitioners. It cannot now be disputed that

this payment was made under a mistake within S. 72 of

the Indian Contract Act and so the Government to whom

the payment has been made by mistake must in law repay

it. The question is: whether the relief of repayment has to

be sought by the tax-payer by an action in civil court or

whether such an order can be made by the High Court in

exercise of its jurisdiction under Art. 226 of the

Constitution. The jurisdiction conferred by Art. 226 is in

very wide terms. This Article empowers the High Court to

give relief by way of enforcement of fundamental rights

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and other rights by issuing directions, orders or writs,

including writs in the nature of habeas corpus,

mandamus, prohibition, quo warranto and certiorari.

According to the petitioners a writ in the nature of

mandamus can be appropriately used where money has

been paid to the Government by mistake to give relief by

commanding re payment of the same. That in a number of

cases the High Courts have used the writ of mandamus to

enforce such repayment is not disputed. In a recent case

in AIR 1963 SC 925 this Court made in a petition under

Art. 32 an order for refund of tax illegally collected from

the petitioner under Rule 16 of the Madras General Sales

Tax (Turnover and Assessment) Rules, 1939. The question

whether the Court has this power to order refund was not

however raised there. In Sales Tax Officer, Banaras v.

Kanhaiya Lal Mukundlal Saraf, 1959 SCR 1350 (AIR

1959 SC 135) the appellants disputed the correctness of

the High Court's order made in an application under Art.

226 of the Constitution directing refund of taxes that had

been paid under the U.P. Sales Tax Act on the

respondent's forward transactions in silver bullion. After

the levy of sales tax on such transactions was held to be

ultra vires by the High Court of Allahabad the respondent

asked for refund of the tax paid and when that was

refused he applied to the High Court under Art. 226 of

the Constitution for a writ of certiorari for quashing the

assessment orders and a writ of mandamus requiring the

appellants to refund the amount illegally collected. The

order made in this case by the High Court for refund was

affirmed by this Court in appeal. In this case also the

power of the High Court to order such refund was not

challenged either before the High Court or before this

Court.

15. We see no reason to think that the High Courts have

not got this power. If a right has been infringed-whether a

fundamental right or a statutory right and the aggrieved

party comes to the court for enforcement of the right it

will not be giving complete relief if the court merely

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declares the existence of such right or the fact that

existing right has been infringed. Where there has been

only a threat to infringe the right, an order commanding

the Government or other statutory authority not to take

the action contemplated would be sufficient. It has been

held by this Court that where there has been a threat only

and the right has not been actually infringed an

application under Art. 226 would lie and the courts

would give necessary relief by making an order in the

nature of in-junction. It will hardly be reasonable to say

that while the court will grant relief by such command in

the nature of an order of injunction where the invasion of

a right has been merely threatened the court must still

refuse, where the right has been actually invaded, to give

the consequential relief and content itself with merely a

declaration that the right exists and has been invaded or

with merely quashing the illegal order made.

16. For the reasons given above, we are clearly of

opinion that the High Courts have power for the purpose

of enforcement of fundamental rights and statutory rights

to give consequential relief by ordering repayment of

money realised by the Govt. without the authority of law.

17.

At the same time we cannot lose sight of the fact that

the special remedy provided in Art. 226 is not intended to

supersede completely the modes of obtaining relief by an

action in a civil court or to deny defences legitimately

open in such actions. It has been made clear more than

once that the power to give relief under Art. 226 is a

discretionary power. This is specially true in the case of

power to issue writs in the nature of mandamus. Among

the several matters which the High Courts rightly take

into consideration in the exercise of that discretion is the

delay made by the aggrieved party in seeking this special

remedy and what excuse there is for it. Another is the

nature of controversy of facts and law that may have to be

decided as regards the availability of consequential relief.

Thus, where, as in these cases, a person comes to the

Court for relief under Art. 226 on the allegation that he

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has been assessed to tax under a void legislation and

having paid it under a mistake is entitled to get it back,

the court, if it finds that the assessment was void, being

made under a void provision of law, and the payment was

made by mistake, is still not bound to exercise its

discretion directing repayment. Whether repayment

should be ordered in the exercise of this discretion will

depend in each case on its own facts and circumstances.

It is not easy nor is it desirable to lay down any rule for

universal application. It may however be stated as a

general rule that if there has been unreasonable delay the

court ought not ordinarily to lend its aid to a party by this

extraordinary remedy of mandamus. Again, where even if

there is no such delay the Government or the statutory

authority against whom the consequential relief is prayed

for raises a prima facie triable issue as regards the

availability of such relief on the merits on the grounds

like limitation the Court should ordinarily refuse to issue

the writ of mandamus for such payment. In both these

kinds of cases it will be sound use of discretion to leave

the party to seek his remedy by the ordinary mode of

action in a civil court and to refuse to exercise in his

favour the extraordinary remedy under

Art. 226

of the

Constitution.

21. The learned Judges appear to have failed to notice

that the delay in these petitions was more than the delay

in the petition made in Bhailal Bhai's case, 1960 M.P.C.

304 out of which Civil Appeal No. 362 of 62 has arisen.

On behalf of the respondents-petitioners in these appeals

(C. A. Nos. 861 to 867 of 1962) Mr. Andley has argued

that the delay in these cases even is not such as would

justify refusal of the order for refund. We argued that

assuming that the remedy of recovery by action in a civil

court stood barred on the date these applications were

made that would be no reason to refuse relief under Art.

226 of the Constitution. Learned Counsel is right in his

submission that the provisions of the Limitation Act do

not as such apply to the granting of relief under Art. 226.

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It appears to us however that the maximum period fixed

by the legislature as the time within which the relief by a

suit in a civil court must be brought may ordinarily be

taken to be a reasonable standard by which delay in

seeking remedy under Art. 226 can be measured. This

Court may consider the delay unreasonable even if it is

less than the period of limitation prescribed for a civil

action for the remedy but where the delay is more than

this period, it will almost always be proper for the Court

to hold that it is unreasonable. The period of limitation

prescribed for recovery of money paid by mistake under

the Limitation Act is three years from the date when the

mistake is known. If the mistake was known in these cases

on or shortly after January 17, 1956 the delay in making

these applications should be considered un-reasonable.

If, on the other hand. as Mr. Andley seems to argue, that

the mistake discovered much later this would be a

controversial tact which cannot conveniently be decided

in writ proceedings. In either view of the matter we are of

opinion the orders for refund made by the High Court in

these seven cases cannot be sustained.”

“Underlining mine”

10.Having heard the learned counsel for the parties and

having perused the materials on record, we find that the facts of

the present case lies in a narrow encompass, inasmuch as the

work orders dated 14.11.2014, pertaining to construction of

PCC road, drain and Ghat under Ward No. 16, Nagar Panchayat,

Vikramganj, Rohtas, for the year 2013-14 were issued to the

appellant, leading to the appellant having entered into three

agreements dated 27.12.2014 with the Executive Engineer,

DUDA, Rohtas at Sasaram. The appellant is stated to have

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completed the work in time, whereafter bills were raised by the

appellant and part payment was made in the year, 2015 itself,

however, the appellant had filed the connected writ petition,

inter alia praying therein for directing the Respondents to pay

the admitted outstanding amount with interest pertaining to the

aforesaid three agreements, after a huge delay of about eight

years but without assigning any satisfactory, bonafide,

convincing much less plausible reason for filing the said writ

petition after an inordinate delay of about eight years.

11.At this juncture, we would like to refer to a judgment

rendered by the Hon’ble Apex Court in the case of Joshi

Technologies International Inc. vs. Union of India & Others,

reported in (2015) 7 SCC 728, paragraphs no. 70.8, 70.9, 70.10,

70.11 and 71 whereof are reproduced herein below:-

“70.8. If the contract between private party and the

State/instrumentality and/or agency of the State is under

the realm of a private law and there is no element of

public law, the normal course for the aggrieved party, is

to invoke the remedies provided under ordinary civil law

rather than approaching the High Court under Article

226 of the Constitution of India and invoking its

extraordinary jurisdiction.

70.9. The distinction between public law and private law

element in the contract with the State is getting blurred.

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However, it has not been totally obliterated and where

the matter falls purely in private field of contract, this

Court has maintained the position that writ petition is

not maintainable. The dichotomy between public law

and private law rights and remedies would depend on

the factual matrix of each case and the distinction

between the public law remedies and private law field,

cannot be demarcated with precision. In fact, each case

has to be examined, on its facts whether the contractual

relations between the parties bear insignia of public

element. Once on the facts of a particular case it is

found that nature of the activity or controversy involves

public law element, then the matter can be examined by

the High Court in writ petitions under Article 226 of the

Constitution of India to see whether action of the State

and/or instrumentality or agency of the State is fair, just

and equitable or that relevant factors are taken into

consideration and irrelevant factors have not gone into

the decision-making process or that the decision is not

arbitrary.

70.10. Mere reasonable or legitimate expectation of a

citizen, in such a situation, may not by itself be a distinct

enforceable right, but failure to consider and give due

weight to it may render the decision arbitrary, and this

is how the requirements of due consideration of a

legitimate expectation forms part of the principle of non-

arbitrariness.

70.11. The scope of judicial review in respect of disputes

falling within the domain of contractual obligations may

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be more limited and in doubtful cases the parties may be

relegated to adjudication of their rights by resort to

remedies provided for adjudication of purely contractual

disputes.

71. Keeping in mind the aforesaid principles and after

considering the arguments of the respective parties, we

are of the view that on the facts of the present case, it is

not a fit case where the High Court should have

exercised discretionary jurisdiction under Article 226 of

the Constitution. First, the matter is in the realm of pure

contract. It is not a case where any statutory contract is

awarded.”

12.Now coming back to the present case, we find that one of

the issues, which arises for consideration is as to whether delay

and laches on the part of the appellant in approaching the Writ

Court can be a valid ground for refusing writ relief. It is a well-

settled law that if a writ petitioner wants to invoke jurisdiction

of a Writ Court, he should come to the Court at the earliest

reasonably possible opportunity and inordinate delay in making

the motion for a writ is a good ground for refusing to exercise

such discretionary jurisdiction. The underlining object of this

principle is not to encourage agitation of stale claims and

exhume matters which have already been disposed of or settled

or where the rights of third parties have accrued in the

meantime. There is no upper limit and there is no lower limit as

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to when a person can approach a Court, however the question is

one of discretion and has to be decided on the basis of facts

before the Court, depending on and varying from case to case.

In this regard, we may refer to a judgment rendered by the

Hon’ble Apex Court in the case of Tridip Kumar Dingal &

Others vs. State of West Bengal & Others & other analogous

cases, reported in (2009) 1 SCC 768. It is equally a well-settled

law, as has been held by the Hon’ble Apex Court in a catena of

judgments that while exercising extraordinary and equitable

jurisdiction under Article 226 of the Constitution of India, the

Constitutional Court, while protecting the rights of citizens,

should simultaneously keep itself alive to primary principle that

when an aggrieved person, without adequate reason, approaches

the Court belatedly, at his own leisure or pleasure, the writ Court

is not required to grant any indulgence to such indolent person

and on the ground of delay and laches alone, the writ Court

ought to throw the petition overboard at the very threshold. In

this regard, reference be had to the following judgments:-

“(i) State of Tamil Nadu vs. Seshachalam, reported in

(2007) 10 SCC 137;

(ii) C. Jacob vs. Director of Geology & Mining & Anr.,

reported in AIR 2009 SC 264;

(iii) State of Uttranchal & Anr. vs. Shiv Charan Singh

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Bhandari & Ors., reported in 2013 AIR SCW 6627;

(iv) Chennai Metropolitan Water Supply & Sewerage

Board & Others vs. T.T. Murali Babu, reported in

(2014) 4 SCC 108;

(v) State of Jammu & Kashmir vs. R.K. Zalpuri &

Others, reported in AIR 2016 SC 3006;

(vi) Union of India v. C. Girija, reported in (2019) 15

SCC 633”

13.It would be apposite to refer to yet another judgment

rendered by the Hon’ble Apex Court in the case of Mrinmoy

Maity vs. Chanda Koley & Others, reported in (2024) 15 SCC

215, paragraphs no. 9, 11, 13 and 14 whereof are reproduced

herein below:-

“9. Having heard rival contentions raised and on perusal

of the facts obtained in the present case, we are of the

considered view that the writ petitioner ought to have

been non-suited or in other words the writ petition ought

to have been dismissed on the ground of delay and laches

itself. An applicant who approaches the court belatedly

or in other words sleeps over his rights for a

considerable period of time, wakes up from his deep

slumber ought not to be granted the extraordinary relief

by the writ courts. This Court time and again has held

that delay defeats equity. Delay or laches is one of the

factors which should be borne in mind by the High Court

while exercising discretionary powers under Article 226

of the Constitution of India. In a given case, the High

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Court may refuse to invoke its extraordinary powers if

laxity on the part of the applicant to assert his right has

allowed the cause of action to drift away and attempts

are made subsequently to rekindle the lapsed cause of

action.

11. For filing of a writ petition, there is no doubt that no

fixed period of limitation is prescribed. However, when

the extraordinary jurisdiction of the writ court is invoked,

it has to be seen as to whether within a reasonable time

same has been invoked and even submitting of memorials

would not revive the dead cause of action or resurrect the

cause of action which has had a natural death. In such

circumstances on the ground of delay and laches alone,

the appeal ought to be dismissed or the applicant ought

to be non-suited. If it is found that the writ petitioner is

guilty of delay and laches, the High Court ought to

dismiss the petition on that sole ground itself, inasmuch

as the writ courts are not to indulge in permitting such

indolent litigant to take advantage of his own wrong. It is

true that there cannot be any waiver of fundamental right

but while exercising discretionary jurisdiction under

Article 226, the High Court will have to necessarily take

into consideration the delay and laches on the part of the

applicant in approaching a writ court.

13. It is apposite to take note of the dicta laid down by

this Court in Karnataka Power Corpn. Ltd. v. K.

Thangappan [(2006) 4 SCC 322] whereunder it has been

held that the High Court may refuse to exercise

extraordinary jurisdiction if there is negligence or

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omissions on the part of the applicant to assert his right.

It has been further held thereunder:

“6. Delay or laches is one of the factors which is to be

borne in mind by the High Court when they exercise

their discretionary powers under Article 226 of the

Constitution. In an appropriate case the High Court

may refuse to invoke its extraordinary powers if there is

such negligence or omission on the part of the applicant

to assert his right as taken in conjunction with the lapse

of time and other circumstances, causes prejudice to the

opposite party. Even where fundamental right is

involved the matter is still within the discretion of the

Court as pointed out in Durga Prashad v. Controller of

Imports and Exports [(1969) 1 SCC 185]. Of course,

the discretion has to be exercised judicially and

reasonably.

7. What was stated in this regard by Sir Barnes Peacock

in Lindsay Petroleum Co. v. Prosper Armstrong Hurd

[(1874) LR 5 PC 221 : 22 WR 492] (LR PC at p. 239)

was approved by this Court in Moon Mills Ltd. v.

Industrial Court [1967 SCC OnLine SC 117 : AIR 1967

SC 1450] and Maharashtra SRTC v. Balwant Regular

Motor Service [1968 SCC OnLine SC 54 : (1969) 1

SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:

(Lindsay Petroleum case, LR pp. 239-40)

‘Now, the doctrine of laches in courts of equity is not

an arbitrary or a technical doctrine. Where it would

be practically unjust to give a remedy either because

the party has, by his conduct done that which might

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fairly be regarded as equivalent to a waiver of it, or

where by his conduct and neglect he has though

perhaps not waiving that remedy, yet put the other

party in a situation in which it would not be

reasonable to place him if the remedy were

afterwards to be asserted, in either of these cases,

lapse of time and delay are most material. But in

every case, if an argument against relief, which

otherwise would be just, is founded upon mere delay,

that delay of course not amounting to a bar by any

statute of limitation, the validity of that defence must

be tried upon principles substantially equitable. Two

circumstances always important in such cases are,

the length of the delay and the nature of the acts

done during the interval which might affect either

party and cause a balance of justice or injustice in

taking the one course or the other, so far as it relates

to the remedy.’

8. It would be appropriate to note certain decisions of

this Court in which this aspect has been dealt with in

relation to Article 32 of the Constitution. It is apparent

that what has been stated as regards that article would

apply, a fortiori, to Article 226. It was observed in

Rabindranath Bose v. Union of India [(1970) 1 SCC 84]

that no relief can be given to the petitioner who without

any reasonable explanation approaches this Court

under Article 32 after inordinate delay. It was stated

that though Article 32 is itself a guaranteed right, it

does not follow from this that it was the intention of the

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Constitution-makers that this Court should disregard all

principles and grant relief in petitions filed after

inordinate delay.

9. It was stated in State of M.P. v. Nandlal Jaiswal

[(1986) 4 SCC 566] that the High Court in exercise of

its discretion does not ordinarily assist the tardy and the

indolent or the acquiescent and the lethargic. If there is

inordinate delay on the part of the petitioner and such

delay is not satisfactorily explained, the High Court

may decline to intervene and grant relief in exercise of

its writ jurisdiction. It was stated that this rule is

premised on a number of factors. The High Court does

not ordinarily permit a belated resort to the extraordinary

remedy because it is likely to cause confusion and

public inconvenience and bring, in its train new

injustices, and if writ jurisdiction is exercised after

unreasonable delay, it may have the effect of inflicting

not only hardship and inconvenience but also injustice

on third parties. It was pointed out that when writ

jurisdiction is invoked, unexplained delay coupled with

the creation of third-party rights in the meantime is an

important factor which also weighs with the High Court

in deciding whether or not to exercise such jurisdiction.”

14. Reiterating the aspect of delay and laches would

disentitle the discretionary relief being granted, this

Court in Chennai Metropolitan Water Supply & Sewerage

Board v. T.T. Murali Babu [(2014) 4 SCC 108] has held:

(SCC p. 117, para 16)

“16. Thus, the doctrine of delay and laches should not

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be lightly brushed aside. A writ court is required to

weigh the explanation offered and the acceptability of

the same. The court should bear in mind that it is

exercising an extraordinary and equitable jurisdiction.

As a constitutional court it has a duty to protect the

rights of the citizens but simultaneously it is to keep

itself alive to the primary principle that when an

aggrieved person, without adequate reason,

approaches the court at his own leisure or pleasure, the

court would be under legal obligation to scrutinise

whether the lis at a belated stage should be entertained

or not. Be it noted, delay comes in the way of equity. In

certain circumstances delay and laches may not be

fatal but in most circumstances inordinate delay would

only invite disaster for the litigant who knocks at the

doors of the court. Delay reflects inactivity and

inaction on the part of a litigant — a litigant who has

forgotten the basic norms, namely, “procrastination is

the greatest thief of time” and second, law does not

permit one to sleep and rise like a phoenix. Delay does

bring in hazard and causes injury to the lis.”

14.Considering the facts and averments made in the writ

petition, we may reiterate that the appellant has assigned no

convincing or plausible reason for filing the writ petition after

inordinate delay of about 8 years, although a suit for recovery of

money has to be filed within three years from the date when the

cause of action arises. The extra-ordinary jurisdiction, under

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Article 226 of the Constitution of India, has to be exercised to

enforce the law and not to defeat the same. In other words, the

power under Article 226 of the Constitution has to be exercised

to effectuate the rule of law and not to abrogate or defeat it.

Even while acting in exercise of the said constitutional power,

the High Court cannot ignore the law nor can it override the law.

The power, under Article 226 of the Constitution of India, is

conceived to serve the ends of law and not to transgress them.

Reference in this regard be had to the judgment rendered by the

Hon’ble Apex Court in the case of Mafatlal Industries Ltd. v.

Union of India, reported in (1997) 5 SCC 536.

15.Thus, we find that there has been unreasonable delay on

the part of the appellant in approaching the Writ Court, hence

this Court is not required to lend its aid by its extraordinary

remedy of mandamus, therefore the Writ Court has rightly

refused to exercise the extraordinary remedy under Article 226

of the Constitution of India, leaving the appellant to seek his

remedy by the ordinary mode of action, as is otherwise available

under the law.

16.Yet another aspect of the matter is as to whether a time-

barred debt can be recovered by invoking the extraordinary

jurisdiction of this Court under Article 226 of the Constitution

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of India. In this regard, we would refer to a judgment rendered

by a Constitution Bench of the Hon’ble Apex Court in the case

of Bhailal Bhai (supra), wherein it has been held- “that the

maximum period fixed by the legislature as the time within

which the relief by a suit in a civil court must be brought may

ordinarily be taken to be a reasonable standard by which delay

in seeking remedy under Art. 226 can be measured”. Thus, the

Court may consider the delay to be unreasonable even if it is

less than the period of limitation prescribed for a civil action for

the remedy but where the delay is more than this period, it will

always be proper for the Court to hold that it is unreasonable.

17.In light of the law laid down by the Constitution Bench of

the Hon’ble Apex Court in the case of Bhailal Bhai (supra), we

are now required to appraise the present case. Admittedly, the

period of limitation prescribed for recovery of money due on a

contract is three years from the date when the payment becomes

due. In the present case, therefore the onus was on the writ

petitioner / appellant herein to show that when his dues had

otherwise become time-barred, as to why he had not approached

the Writ Court before the dues became time-barred. The writ

petition was filed after an inordinate delay of about eight years

and this delay having not been appropriately explained, we find

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that the writ petition was not maintainable on this ground alone,

inasmuch as delay in filing the writ petition is unreasonable and

moreover, the said delay is more than the period of limitation

prescribed for a civil action for the remedy, as available to the

writ petitioner / appellant. Hence, considering the law laid down

by the Constitution Bench of the Hon’ble Apex Court in the

case of Bhailal Bhai (supra), we find that the writ petition filed

by the writ petitioner / appellant, itself was not liable to be

entertained under Article 226 of the Constitution of India being

marred by the principles of delay and laches, thus the present

appeal is sans merit, accordingly the same stands dismissed.

Ajay/-

(Mohit Kumar Shah, J)

(Sourendra Pandey, J)

AFR/NAFR AFR

CAV DATE 03.08.2026

Uploading Date 30.10.2026

Transmission Date NA