1
AFR
R ESERVED ON 12.03.2019
D ELIVERED ON 08.05.2019
Court No. 58
Case : WRIT C No. 34346 of 2018
Petitioner : M/S Ipjacket Technology India Private Limited
Respondent : M.D. Uttar Pradesh Rajkiya Nirman Nigam Ltd.
Counsel for Petitioner : In Person,Swati Agrawal
Counsel for Respondent : Pranjal Mehrotra
Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1.Heard Sri Arvind Kumar Verma, learned Senior Counsel
assisted by Mrs. Swati Agrawal, learned counsel for the
petitioner, Sri Pranjal Mehrotra, learned counsel appearing for
respondent no.1 and Sri Manish Goyal, learned Additional
Advocate General assisted by Mrs. Akanksha Sharma, learned
Standing Counsel appearing for the Staterespondents and also
respondent no.4.
2.The present writ petition has been filed seeking the
following reliefs:
“(i) Pass a suitable order or direction to UPRNN to give the
order of AMC in favour of petitioner and release the complete
payment of 5 years at once i.e. Rs. 8,41,42,960.00 + 18% GST
within a week so that the damages caused by the delays in
payment of CCTV AMC may be covered.
(ii) Pass a suitable order or direction to accountant, Hon'ble
High Court Lucknow to release the funds sanctioned by the
government.
(iii) Pass a suitable order or direction to UPRNN to provide
funds of the damaged CCTV and other equipment's due to fire
that are not covered in AMC.
(iv) Pass a suitable order or direction to UPRNN to complete the
measurement of all the civil work etc. executed by the petitioner
at gate no. 3A, 3B, 4 and 5 and control room etc. and make the
payment (including GST) to the petitioner.
Neutral Citation No. 2019:AHC:80735DB
2
(v) Pass a suitable order or direction to UPRNN to pay atleast a
compensation of 1 Cr. to cover the loss the petitioner has to face
due to delayed payments of the civil work.
(vi) Pass a suitable order or direction to the U.P. State
government to release the funds of 936 CCTV Camera for
Hon'ble High Court, Allahabad so that the basic and critical
infrastructure like Genset, Precision cooling etc. may be restored
in the Server, UPS, Control Room. Further kindly instruct
UPRNN to get the said work executed on the revised tender rate
of 2015 in favour of petitioner.”
3.In view of the aforementioned reliefs as prayed in the
writ petition a preliminary objection has been raised by the
counsel for the respondents with regard to the maintainability
of the writ petition on the ground that the writ petition seeks to
enforce certain contractual rights and obligations for which the
appropriate remedy is to approach the civil court, and the writ
petition is not liable to be entertained.
4.As regards the principal relief sought in the writ petition
with regard to a direction to be given to the U.P. Rajkiya
Nirman Nigam Ltd. (hereinafter referred to as the “UPRNN”) to
give the order for an Annual Maintenance Contract (hereinafter
referred to as the “AMC”) in favour of the petitioner, the
counsel appearing for the UPRNN has raised an objection that
the contract was awarded to the U.P. Small Industries
Corporation (in short “the UPSIC”) and, therefore, the
petitioner cannot make any claim with regard to AMC charges.
Further, it is submitted that the UPRNN as the executing
agency had received no instruction from respondent no.4
regarding payment of any amount towards AMC to the
petitioner, and in view of the same, the reliefs sought by the
petitioner are not legally tenable and petition is liable to be
dismissed.
5.The basic facts as are evident from the pleadings in the
writ petition and the supplementary affidavit dated 13.03.2019
3
filed by the petitioner go to show that the petitioner M/S
Ipjacket Technology India Private Limited was registered by the
UPSIC under a registration certificate dated 22.01.2015
whereunder it had acquired eligibility for participation in
UPSIC's Assistance Scheme for Marketing and also for Tender
Participation/Fabrication/Export/Raw Material/Construction/
Electrification/LandPlot Allotment/Pollution Control
Assistance. The registration certificate dated 22.01.2015, a
copy whereof has been filed as part of Annexure SA1 to the
supplementary affidavit demonstrates that the said registration
was valid for the financial year from the date of issue and was
to have expired on 31.03.2015. The terms of the “Marketing
Assistance Scheme” indicate that the scheme was for providing
assistance to small units for marketing and the UPSIC on behalf
of its registered units was to participate in various tenders in
the State of U.P.
6.The documents filed as Annexure SA1 which is a letter
issued by the UPSIC to the Assistant Project Manager, Electrical
Unit, UPRNN, Varanasi indicates that it was the UPSIC which
had submitted its bid in response to the tender no.
32/CCTV/ALLD/RNN/14 dated 17.01.2015 for supply,
installation, testing and commissioning of CCTV system at the
High Court due on 27.01.2015. The aforementioned bid was
submitted by the UPSIC on behalf of its registered member i.e.
petitioner under the Marketing Assistance Scheme referred to
above.
7.The Notice Inviting Tender (NIT) for supplying,
installation, testing, commissioning and project management of
the CCTV surveillance system for the High Court Allahabad was
issued on 17.01.2015 by the UPRNN in its capacity as the
design and executing agency. The correspondence which has
4
been placed on record shows that in response to the NIT dated
17.01.2015 four tenders were received out of which two were
found eligible and upon opening of the price bid on 26.02.2015
the bid submitted by the UPSIC was found to be lowest and it
was sanctioned the work, and after the negotiation meeting
held between UPRNN and UPSIC the work was directed to be
started. The request for starting the work of installation of
CCTV cameras was communicated vide letter dated 31.03.2015
issued on behalf of respondent no.4 to the UPRNN, and
thereafter UPRNN issued a communication dated 09.04.2015 to
the UPSIC informing that its offer had been found to be the
lowest and the work had been awarded to them on terms and
conditions of the contract which were specified in the letter. As
per aforementioned terms and conditions of the contract, the
successful bidder i.e. UPSIC was required to fulfill the
conditions of the contract which included furnishing to the
UPRNN, the requisite performance guarantee and bank
guarantee, etc. Further, the UPSIC as the successful bidder, was
required to sign an agreement with UPRNN within 15 days of
submission of performance security as per the format
agreement given along with the NIT. The petitioner claims that
on the basis of the contract given by the UPRNN to the UPSIC
and the agreement executed between the said parties, certain
directions were issued to the petitioner by the UPSIC with
regard to the work to be completed.
8.The records of the case indicate that the writ petition was
initially filed with the Managing Director, UPRNN as the only
respondent and subsequently with the permission of the Court
granted on 12.10.2018 respondent nos. 2, 3 and 4 were
impleaded as respondents.
9.Upon the case being taken on 06.03.2019, Sri Manish
5
Goyal, Additional Advocate General assisted by Mrs. Akanksha
Sharma appearing on behalf of respondent nos.2 and 3 and
also respondent no.4 raised an objection that the issue
involved in the writ petition was regarding release of an alleged
contractual amount for which the writ petition was not the
appropriate remedy and the petitioner may file a suit for the
said purpose. Learned Senior Counsel appearing for the
petitioner made a prayer that he may be granted sometime to
place on record the agreement entered into between the parties
so as to respond to the preliminary objection raised by the
respondents and on the prayer of the learned counsel an order
was passed on 06.03.2019 whereby the matter was adjourned
to 12.03.2019.
10.Pursuant to the aforementioned order dated 06.03.2019,
a supplementary affidavit was filed by the petitioner. However,
despite time having been sought the petitioner has not been
able to placed on record copy of any agreement to which the
petitioner may have been a party. In fact the pleadings in the
writ petition and the supplementary affidavit do not indicate
that any agreement was entered into between the executing
agency and the petitioner with regard to the work in question
or in respect to any AMC for the purpose.
11.In response to the preliminary objection regarding the
maintainability of the writ petition, the learned Senior Counsel
appearing for the petitioner has sought to place reliance on the
judgment in the case of Joshi Technologies International Inc.
vs. Union of India and others
1
, to contend that there is no
absolute bar to the maintainability of the writ petition even in
contractual matters where there are disputed questions of fact
or even where monetary claims are sought to be raised.
1(2015) 7 SCC 728
6
12.Per contra, the counsel appearing for the respondents
have submitted that the reliefs sought in the writ petition were
in the realm of an alleged contractual relationship and as such
the same were not amenable to the writ jurisdiction. It is
further contended that the pleadings in the writ petition and
the grounds which have sought to be canvassed clearly go to
show that the issues sought to be raised relate to purely
contractual matters which would have to be decided on the
basis of contractual relations between the parties and not by
filing a writ petition. It is also submitted that the documents
which have been placed on record unequivocally show that
there was no privity of contract between the petitioner and the
respondent against whom the relief was being sought.
13.Heard the learned counsel for the parties and perused the
record.
14.The pleadings in the case as well as material on record
clearly demonstrate that pursuant to the NIT issued by the
UPRNN in its capacity as the design and executing agency for
the work of supply, installation, testing, commissioning and
project management of CCTV surveillance system for
respondent no.4, it was the UPSIC which had submitted its bid
and upon being held to be a successful bidder an agreement
was entered into between the executing agency i.e. UPRNN and
the successful bidder, i.e. the UPSIC for completion of the work
as per the terms and conditions of the contract. The petitioner
company was neither a party to any agreement entered into
with the executing agency i.e. UPRNN nor was any AMC
awarded to the petitioner company by the UPRNN.
15.We may note that the law in this regard as developed
through a catena of judgments is that in pure contractual
matters the extra ordinary remedy of a writ under Article 226
7
of the Constitution of India
2
cannot be invoked, and such
remedies are available in a limited sphere only when the
contracting party is able to demonstrate that the remedy it
seeks to invoke is a public law remedy, in contradistinction to a
private law remedy under a contract.
16.The legal position in this regard is that where the rights
which are sought to be agitated are purely of a private
character no mandamus can be claimed, and even if the relief is
sought against the State or any of its instrumentality the pre
condition for the issuance of a writ of mandamus is a public
duty. In a dispute based on a pure contractual relationship
there being no public duty element, a mandamus would not lie.
17.In this regard we may draw reference to the judgment of
the Supreme Court in the case of Bareilly Development
Authority Vs. Ajay Pal Singh
3
wherein it was held that even
though the development authority had the trappings of a State,
in a matter pertaining to determination of the price of the flats
constructed by it and the rate of monthly instalments to be
paid, the authority after entering into the field of an ordinary
contract was acting purely in its executive capacity, and the
right and obligations of the parties inter se would be governed
only as per the terms of the contract. The observations made in
the judgment are as follows:
“21. This finding in our view is not correct in the light of the
facts and circumstances of this case because in Ramana
Dayaram Shetty Vs. International Airport Authority of India
[(1979) 3 SCC 489] there was no concluded contract as in this
case. Even conceding that the BDA has the trappings of a State
or would be comprehended in 'other authority' for the purpose of
Article 12 of the Constitution, while determining price of the
houses/flats constructed by it and the rate of monthly
instalments to be paid, the 'authority' or its agent after entering
into the field of ordinary contract acts purely in its executive
capacity. Thereafter the relations are no longer governed by the
2The Constitution
3(1989) 2 SCC 116
8
constitutional provisions but by the legally valid contract which
determines the rights and obligations of the parties inter se. In
this sphere, they can only claim rights conferred upon them by
the contract in the absence of any statutory obligations on the
part of the authority (i.e. BDA in this case) in the said
contractual field.
22. There is a line of decisions where the contract entered into
between the State and the persons aggrieved is nonstatutory
and purely contractual and the rights are governed only by the
terms of the contract, no writ or order can be issued under
Article 226 of the Constitution of India so as to compel the
authorities to remedy a breach of contract pure and simple —
Radhakrishna Agarwal & Ors. v. State of Bihar (1977) 3 SCC
457, Premji Bhai Parmar & Ors. v. Delhi Development Authority
& Ors, (1980) 2 SCC 129 and Divl. Forest Officer v. Bishwanath
Tea Company Ltd. (1981) 3 SCC 238.”
18.In the case of Divisional Forest Officer Vs. Vishwanath
Tea Company Ltd.
4
the question of maintainability of a writ
petition in respect of a claim arising out of the contractual
rights and obligations flowing from the terms of a lease was
considered, and it was held as follows:
“8. It is undoubtedly true that High Court can entertain in its
extraordinary jurisdiction a petition to issue any of the
prerogative writs for any other purpose. But such writ can be
issued where there is executive action unsupported by law or
even in respect of a corporation there is a denial of equality
before law or equal protection of law. The Corporation can also
file a writ petition for enforcement of a right under a statute. As
pointed out earlier, the respondent (company) was merely trying
to enforce a contractual obligation. To clear the ground let it be
stated that obligation to pay royally for timber cut and felled
and removed is prescribed by the relevant regulations. The
validity of regulations is not challenged. Therefore, the demand
for royalty is unsupported by law. What the respondent claims is
an exception that in view of a certain term in the indenture of
lease, to wit, clause 2, the appellant is not entitled to demand
and collect royalty from the respondent. This is nothing but
enforcement of a term of a contract of lease. Hence, the question
whether such contractual obligation can be enforced by the High
Court in its writ jurisdiction.
9. Ordinarily, where a breach of contract is complained of, a
party complaining of such breach may sue for specific
performance of the contract, if contract is capable of being
specifically performed, or the party may sue for damages. Such a
4(1981) 3 SCC 238
9
suit would ordinarily be cognizable by the civil court. The High
Court in its extraordinary jurisdiction would not entertain a
petition either for specific performance of contract or for
recovering damages. A right to relief flowing from a contract has
to be claimed in a civil court where a suit for specific
performance of contract or for damages could be filed.”
19.We may also refer to the judgment in the case of LIC Vs.
Escorts Ltd.
5
wherein it was held that in a matter relating to
the contractual obligations the Court would not ordinarily
examine it unless the action has some public law character
attached to it. The observations made in the judgment are as
follows:
“102. ...If the action of the State is related to contractual
obligations or obligations arising out of the tort, the court may
not ordinarily examine it unless the action has some public law
character attached to it. Broadly speaking, the court will
examine actions of State if they pertain to the public law
domain and refrain from examining them if they pertain to the
private law field. The difficulty will lie in demarcating the
frontier between the public law domain and the private law
field. It is impossible to draw the line with precision and we do
not want to attempt it. The question must be decided in each
case with reference to the particular action, the activity in which
the State or the instrumentality of the State is engaged when
performing the action, the public law or private law character of
the action and a host of other relevant circumstances. When the
State or an instrumentality of the State ventures into the
corporate world and purchases the shares of a company, it
assumes to itself the ordinary role of a shareholder, and dons
the robes of a shareholder, with all the rights available to such a
shareholder. There is no reason why the State as a shareholder
should be expected to state its reasons when it seeks to change
the management, by a resolution of the company, like any other
shareholder.”
20.In Premji Bhai Parmar Vs. Delhi Development
Authority
6
a petition filed under Article 32 before the Supreme
Court contending that the surcharge collected by the authority
in respect of a flat purchased by the petitioner was illegal, the
petition was dismissed with the following observations:
“8. ...petition to this Court under Article 32 is not a proper
5(1986) 1 SCC 264
6(1980) 2 SCC 129
10
remedy nor is this Court a proper forum for reopening the
concluded contracts with a view to getting back a part of the
purchase price paid and the benefit taken. ….. But after the
State or its agents have entered into the field of ordinary
contract, the relations are no longer governed by the
constitutional provisions but by the legally valid contract which
determines rights and obligations of the parties inter se. No
question arises of violation of Article 14 or of any other
constitutional provision when the State or its agents, purporting
to act within this field, perform any act. In this sphere, they can
only claim rights conferred upon them by contract and are
bound by the terms of the contract only unless some statute steps
in and confers some special statutory power or obligation on the
State in the contractual field which is apart from contract.”
21.In the case of State of Bihar Vs. Jain Plastics &
Chemicals Ltd.
7
a grievance was sought to be raised against
deduction of an amount from the final bill to be paid to the
contractor due to breach of contract by him. The petition was
allowed by the High Court. The matter was taken to the
Supreme Court wherein it was held that even if it was possible
to decide the question raised in the petition on the basis of
affidavits and counter affidavits, it would not be proper to
exercise extraordinary jurisdiction under Article 226 of the
Constitution in cases of alleged breach of contract. The
observations made by the Supreme Court are as follows:
“2. Limited question involved in this appeal is — whether the
High Court ought not to have exercised its jurisdiction under
Article 226 of the Constitution of India for granting relief in case
of alleged breach of contract.
3. Settled law — writ is not the remedy for enforcing
contractual obligations. It is to be reiterated that writ petition
under Article 226 is not the proper proceedings for adjudicating
such disputes. Under the law, it was open to the respondent to
approach the court of competent jurisdiction for appropriate
relief for breach of contract...
x x x x x
7. ...It is true that many matters could be decided after referring
to the contentions raised in the affidavits and counteraffidavits,
but that would hardly be a ground for exercise of extraordinary
jurisdiction under Article 226 of the Constitution in case of
alleged breach of contract. Whether the alleged nonsupply of
7(2002) 1 SCC 216
11
road permits by the appellants would justify breach of contract
by the respondent would depend upon facts and evidence and is
not required to be decided or dealt with in a writ petition. Such
seriously disputed questions or rival claims of the parties with
regard to breach of contract are to be investigated and
determined on the basis of evidence which may be led by the
parties in a properly instituted civil suit rather than by a court
exercising prerogative of issuing writs.”
22.The general principles which may be culled out from the
aforementioned judgments is that in a case where the contract
entered into between the State and the person aggrieved is of a
nonstatutory character and the relationship is governed purely
in terms of a contract between the parties, in such situations
the contractual obligations are matters of private law and a writ
would not lie to enforce a civil liability arising purely out of a
contract. The proper remedy in such cases would be to file a
civil suit for claiming damages, injunctions or specific
performance or such appropriate reliefs in a civil court. Pure
contractual obligation in the absence of any statutory
complexion would not be enforceable through a writ.
23.The remedy under Article 226 of the Constitution being
an extraordinary remedy, it is not intended to be used for the
purpose of declaring private rights of the parties. In the case of
enforcement of contractual rights and liabilities the normal
remedy of filing a civil suit being available to the aggrieved
party, this Court may not exercise its prerogative writ
jurisdiction to enforce such contractual obligations.
24.We may gainfully refer to the judgment in the case of
Joshi Technologies International Inc. (supra) wherein the
entire legal position in this regard has been taken note of and
summarized in the following terms:
“69. The position thus summarised in the aforesaid principles
has to be understood in the context of discussion that preceded
which we have pointed out above. As per this, no doubt, there is
no absolute bar to the maintainability of the writ petition even
12
in contractual matters or where there are disputed questions of
fact or even when monetary claim is raised. At the same time,
discretion lies with the High Court which under certain
circumstances, it can refuse to exercise. It also follows that under
the following circumstances, “normally”, the Court would not
exercise such a discretion:
69.1. The Court may not examine the issue unless the action has
some public law character attached to it.
69.2. Whenever a particular mode of settlement of dispute is
provided in the contract, the High Court would refuse to exercise
its discretion under Article 226 of the Constitution and relegate
the party to the said mode of settlement, particularly when
settlement of disputes is to be resorted to through the means of
arbitration.
69.3. If there are very serious disputed questions of fact which
are of complex nature and require oral evidence for their
determination.
69.4. Money claims per se particularly arising out of contractual
obligations are normally not to be entertained except in
exceptional circumstances.
70. Further, the legal position which emerges from various
judgments of this Court dealing with different situations/aspects
relating to contracts entered into by the State/public authority
with private parties, can be summarised as under:
70.1. At the stage of entering into a contract, the State acts
purely in its executive capacity and is bound by the obligations
of fairness.
70.2. State in its executive capacity, even in the contractual
field, is under obligation to act fairly and cannot practise some
discriminations.
70.3. Even in cases where question is of choice or consideration
of competing claims before entering into the field of contract,
facts have to be investigated and found before the question of a
violation of Article 14 of the Constitution could arise. If those
facts are disputed and require assessment of evidence the
correctness of which can only be tested satisfactorily by taking
detailed evidence, involving examination and crossexamination
of witnesses, the case could not be conveniently or satisfactorily
decided in proceedings under Article 226 of the Constitution. In
such cases the Court can direct the aggrieved party to resort to
alternate remedy of civil suit, etc.
70.4. Writ jurisdiction of the High Court under Article 226 of
the Constitution was not intended to facilitate avoidance of
obligation voluntarily incurred.
70.5. Writ petition was not maintainable to avoid contractual
obligation. Occurrence of commercial difficulty, inconvenience or
hardship in performance of the conditions agreed to in the
13
contract can provide no justification in not complying with the
terms of contract which the parties had accepted with open eyes.
It cannot ever be that a licensee can work out the licence if he
finds it profitable to do so: and he can challenge the conditions
under which he agreed to take the licence, if he finds it
commercially inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is complained of,
the party complaining of such breach may sue for specific
performance of the contract, if contract is capable of being
specifically performed. Otherwise, the party may sue for
damages.
70.7. Writ can be issued where there is executive action
unsupported by law or even in respect of a corporation there is
denial of equality before law or equal protection of law or if it
can be shown that action of the public authorities was without
giving any hearing and violation of principles of natural justice
after holding that action could not have been taken without
observing principles of natural justice.
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.
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 decisionmaking
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
14
principle of nonarbitrariness.
70.11. The scope of judicial review in respect of disputes falling
within the domain of contractual obligations may 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.”
25.Keeping in view the aforementioned principles of law,
this Court is of the view that though in contractual matters
where disputed questions of fact or monetary claims have been
raised, there may not be an absolute bar to the maintainability
of the writ petition, the discretion can be exercised by the High
Court only in a case where the contracting party is able to
demonstrate that it is a public law remedy it seeks to invoke in
contradistinction to a private law remedy simpliciter under the
contract.
26.On behalf of the petitioner, attention of this Court has
been drawn to a recent judgment of the Supreme Court dated
08.03.2019 in Civil Appeal No.2610 of 2019 (M/s Surya
Constructions Vs. State of Uttar Pradesh & Ors.). It was a
case in which payment for extra work by the Uttar Pradesh Jal
Nigam had not been made to the appellant though such work
was expressly sanctioned and completed to their satisfaction,
and the only reason assigned for not making the payment was
that no money was available in the account of the Uttar
Pradesh Jal Nigam and that payment would be made after
availability of the funds from the Government. It was, in this
background that the Court came to the conclusion that there
was no dispute as to the amount which had to be paid to the
appellant and therefore the dismissal of the writ petition stating
that disputed question of facts arise was not correct inasmuch
as there was no disputed question of fact and on the contrary
the amount payable to the appellant was wholly undisputed.
27.We are afraid the facts of the aforementioned case in M/s
15
Surya Constructions (supra) are entirely distinguishable
inasmuch as in the said case there was no dispute with regard
to amount that had to be paid to the appellant and in fact the
liability to make payment had been admitted and the only
reason put forward for not making payment was not non
availability of funds. It was in this context that the Court taking
into consideration that the work as expressly sanctioned having
been completed long back in the year 2009 and to the
satisfaction of the Uttar Pradesh Jal Nigam, directed making of
necessary payment alongwith interest.
28.In the present case the claim sought to be set up by the
petitioner has been strongly disputed, and the petitioner has
not been able to place on record any material to demonstrate
that it was a party to any agreement in terms of which it would
be entitled to raise any claim against the respondents. The facts
of the case at hand being on an entirely different footing, the
petitioner is not entitled to draw any benefit from the judgment
in the case of M/s Surya Constructions.
29.The pleadings in the instant case and the material which
has been placed on record, do not in any manner indicate that
it is a public law remedy which the petitioner is seeking to
invoke so as to persuade this Court to exercise its discretion.
Moreover, the facts which are before us clearly indicate that
pursuant to the tender notice issued by the UPRNN (respondent
no.1), it was the UPSIC which had submitted its bid and upon
being declared successful bidder it had entered into an
agreement with the UPRNN i.e. the executing agency as per the
terms and conditions of the contract agreed between the
parties. Despite time being granted, the petitioner has not been
able to bring any material on record to demonstrate that it was
a party to any agreement on the basis of which it may claim
16
entitlement to raise a claim in respect of the reliefs prayed for
in the writ petition.
30.In view of the aforementioned discussion and keeping in
view of the facts of the present case, we do not deem it fit to
exercise our extra ordinary jurisdiction under Article 226 of the
Constitution of India in the present case.
31. The writ petition is accordingly dismissed.
Order Date : 08.05.2019
Imroz/Shahroz
(Dr. Y. K. Srivastava, J.) (Pankaj Kumar Jaiswal, J.)
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