1

Serial No. 02

Regular List

HIGH COURT OF MEGHALAYA

AT SHILLONG

WP(C) No. 30 of 2023

Reserved Date: 17.06.2026

Pronouncement Date: 14.09.2026

M/s. Ashima Projects Pvt. Ltd.,

Through its Director, Shri. Upendra Nath Saha,

having its registered office at : Room No. 6,

Council Building, Tura Bazar, P.O. & P.S.

Tura, West Garo Hills, Meghalaya-794001.

…… Petitioner

- Vs-

1. State of Meghalaya through its Chief Secretary,

Government of Meghalaya.

2. The Chief Engineer (NH), P.W.D. (Roads),

Government of Meghalaya.

3. The Executive Engineer, P.W.D. (Roads),

Baghmara NH Division, Baghmara,

South Garo Hills, Meghalaya

4. The Regional Officer

Ministry of Surface, Road & Highways,

Rajgarh Road, Guwahati – 781003.

……… Respondents

Coram:

Hon’ble Mr. Justice W. Diengdoh, Judge.

Appearance:

For the Petitioner/Appellant(s) : Mr. D. Sahu, Adv.

Mr. P.R. Paske, Adv.

For the Respondent(s) : Mr. N.D. Chullai, AAG with

Ms. R. Colney, GA. for R 1-3. 2026:MLHC:1032

2

Dr. N. Mozika, DSGI with

Ms. K. Gurung, Adv. for R 4.

i) Whether approved for reporting in Yes/No

Law journals etc.:

ii) Whether approved for publication

in press: Yes/No

JUDGMENT AND ORDER

1. Pleadings found in this petition reveals that the petitioner is a private

limited construction company, registered under the Indian Companies Act. 1956.

It is also registered as a Class-I Government Contractor of a number of

government departments, e.g., PWD, PHED, MePDCL.

2. In the year 2007-2008, a tender was floated for construction of a

High-Level Bridge across the river Dabua at Gasuapara in KM 187 on NH-62,

including approaches in South Garo Hills District of Meghalaya. The petitioner

having participated in the said bidding process, was accordingly awarded the

contract vide Final Work Order No. PW/TB/BR/74/2005/Pt/13 dated 01.10.2007

for the amount of ₹ 3,00,35,800/- (Rupees Three Crore, Thirty-Five Thousand,

Eight Hundred) only. Then, after completing the work in the year 2014, the

petitioner raised the total bill of ₹ 3,04,62,164/- (Rupees Three Crore, Four Lakh,

Sixty-Two Thousand, One Hundred and Sixty-Four) only.

3. It is stated in the petition that on completion of the said contract

work/project in the year 2014, on being satisfied thereof, the respondent 2026:MLHC:1032

3

authority took charge of the same by issuing a completion certificate to the

petitioner.

4. The petitioner was assured by the concerned department that the final

bill will be cleared soon, he waited for the same for a few months, however,

inspite of such assurance, the said bills have not been paid till date.

5. That in the meantime, the relevant respondent sought for undertaking

of some additional/supplementary work pertaining to CC wearing coat at bridge

No. 186/8 for which the working estimates have been prepared and duly

approved by the Office of the Additional Chief Engineer, PWD (Roads) Western

Zone, the total amount of which comes to ₹ 4,31,000/- (Rupees Four Lakh,

Thirty-One Thousand) only. In this regard, a Tender Process was also carried

out for the said work and the petitioner being the successful bidder, a preliminary

work order vide letter No. PW/WZ/CS-4/NH-62/2017-18/2 dated 07.07.2017

was also issued in favour of the petitioner. The Final Work Order was eventually

issued by the Office of the Additional Chief Engineer, PWD (Roads) Western

Zone, Tura, Government of Meghalaya, vide letter dated 10.07.2017.

6. The department having failed to fulfil to settle the said outstanding

bills, the petitioner issued several letters to the Executive Engineer, PWD

(Roads), Baghmara NH Division ranging from 25.02.2014 to 23.03.2021, the

respondent department has failed to clear the outstanding bills amounting to ₹

3,04,62,164/- (Rupees Three Crore, Four Lakh, Sixty-Two Thousand, One 2026:MLHC:1032

4

Hundred and Sixty-Four) only.

7. Inspite of a number of letters sent to the department, the said

outstanding bills not being paid, the petitioner was compelled to issue a Legal

Notice dated 23.04.2021. Such action of the respondent department

demonstrating lack of interest, the same being arbitrary, illegal and tantamount

to violation of Article 14 of the Constitution and other legal rights of the

petitioner which permits the approach before this Court with this instant petition

under Article 226 of the Constitution.

8. Mr. D. Sahu, learned counsel for the petitioner has submitted that

during the construction period, the petitioner has raised 3 Nos. of AR (Running)

Bills bearing Nos. CC-I for ₹ 30,03,580/- (Rupees Thirty Lakh, Three Thousand,

Five Hundred Eighty) only; CC-II for ₹ 41,20,081/- (Rupees Forty One Lakh,

Twenty Thousand, Eighty One) only and CC-III for ₹ 60,92,538/- (Rupees Sixty

Lakh, Ninety Two Thousand, Five Hundred Thirty Eight) only (Total AR Bills

raised for ₹1,32,16,199/-). The respondent has released payment against the

three running bills amounting to ₹ 1,18,25,724/- (Rupees One Crore, Eighteen

Lakh, Twenty-Five Thousand, Seven Hundred Twenty-Four) only after

deducting ₹ 11,89,475/-.

9. It is further submitted that the petitioner has submitted the final bill

bearing No. FCC-IV/243BGNH dated 15.12.2014 for ₹ 3,00,36,148/- out of

which ₹ 1,33,88,983/- was released to the petitioner through running bills and 2026:MLHC:1032

5

the remaining amount of ₹ 1,66,47,165/- against the final bill has not been paid

yet.

10. Demand was also raised as regard cost escalation during the material

period for which the petitioner has raised demand for cost escalation bill dated

05.01.2015 amounting to ₹ 1,19,83,919/- and that the total outstanding amount

entitled to by the petitioner is ₹ 2,86,31,084/-.

11. The learned counsel has also submitted that, by not releasing the

petitioner’s legitimate dues, the same is violative of Article 14 of the

Constitution, arbitrariness being apparent in such act of unreasonableness. As

such, this Court exercising jurisdiction under Article 226 of the Constitution can

direct the respondents to release the outstanding dues of the petitioner. The case

of M/s Gvpr Engineers Ltd. v. The Managing Director, Karnataka Neevari

Nigam Ltd. [WP(C) No. 8182 of 2022], reported in 2024 Supreme (Kar) 210

has been referred to in support of this contention.

12. The learned counsel for the petitioner has also submitted that for the

delay in payment of the dues of the petitioner, therefore, interest on such delayed

payment till final release of the said dues has to be made to the petitioner. The

case of State of Kerala v. P. Edward John, 2015 (Supreme Online (Ker),

46582, para 17 & 22 has been cited in this regard.

13. On the issue of limitation, the learned counsel has submitted that the 2026:MLHC:1032

6

provisions of the Limitation Act are not applicable to reliefs sought for on an

application under Article 226. Though it is admitted that it was incumbent upon

the petitioner to approach the court within a reasonable time period, however,

the same depends on the facts and circumstances of each case. The case of Shri

Vallabh Glass Works Ltd. & Anr v. Union of India & Ors, (1984) 3 SCC

362, para 9 as well as the case of Sachindra Nath Sen Gupta v. General

Manager, NEF Railway, 1973 AIR (Gua) 108, para 4 was referred to, to

sustain this contention.

14. Finally, the learned counsel has argued that in a writ petition

involving disputed question of facts or for a monetary claim, the same is

maintainable in exercise of the discretionary powers of the court. The case of

ABL International Ltd. V. Export Credit Guarantee Corporation of India

Ltd., (2004) 3 SCC 553 has been put into service in this connection.

15. Mr. N.D. Chullai, learned AAG assisted by Ms. R. Colney, learned

GA appearing for the State respondents No. 1-3, in his response has submitted

that admittedly, the work for reconstruction of the High-Level Bridge over the

river Dabua at Gasuapara, is a project sanctioned by the Ministry of Road

Transport and Highways (MoRTH), Government of India.

16. However, in the instant case, no fund towards payment of the

contractual dues have been released by the sanctioning authority to the

Government Department (PWD) for disbursement of the same to the 2026:MLHC:1032

7

contractor/petitioner.

17. The first objection raised by the learned AAG is on the issue of

maintainability of this petition. It is the contention of the learned AAG that

through this writ, the petitioner seeks enforcement of contractual dues arising

from works contracts. As such, dispute involving payment of dues etc. are in the

realm of private law remedy which the petitioner ought to have resorted to and

not by way of a writ petition. To this contention, the case of Union of India &

Ors. v. Puna Hinda, (2021) 10 SCC 690, para 18 & 24 was referred to by the

learned AAG in support of his case.

18. The next contention of the learned AAG is with regard to the fact

that though, in the contract agreement, there is an arbitration clause which

provides for settlement of disputed contractual claims through the medium of

arbitration, this alternative remedy being available, the petitioner is therefore

precluded to seek redressal of his alleged grievance by way of a writ petition

under Article 226 of the Constitution. To this, the case of Joshi Technologies

International INC. v. Union of India and Ors. (2015) 7 SCC 728, para 55, 59,

69.2 has been cited.

19. The next point of contention raised by the learned AAG is on the

issue of delay and laches where it was said that the petitioner for alleged failure

of the concerned department to clear his contractual dues relevant for the year

2014, he has approached this Court by way of this writ petition only in the year 2026:MLHC:1032

8

2023, knowing fully well that, if he had proceeded by the regular process by

approaching the civil court, his claim would be hit by limitation as per the

provisions of the Limitation Act, therefore, to skirt such process, he has come

before this Court with this instant petition. The action of the petitioner in this

respect cannot be condoned, as such, this petition being hit by delay and laches,

the same ought to be dismissed in limine, submits the learned AAG. On this, the

case of State of Maharashtra v. Digambar, (1995) 4 SCC 683, para 14; has

been referred to.

20. Dr. N. Mozika, learned DSGI assisted by Ms. K. Gurung, learned

appearing for the respondent No. 4/Regional Officer (MoRTH), Guwahati in his

argument, has raised similar contentions as was done by the learned AAG for

the State respondent as far as the issue of disputed question of facts is concerned

and also on the point of an alternate remedy being available to the petitioner.

That the petitioner has suppressed the fact that there was an arbitration clause in

the Contract agreement, vis-a-vis reference of dispute arising out of the contract

to arbitration was also another contention brought forth by the learned DSGI

while presenting his argument in favour of the respondent No. 4. Finally, that

there was delay and laches on the part of the petitioner in preferring this petition

before this Court, therefore, the same ought to be dismissed on this ground too,

is also the submission of the learned DSGI.

21. It is also the submission of the learned DSGI that under the contract 2026:MLHC:1032

9

there is no provision for price escalation, as such, the amount of ₹1,19,83,919/-

(Rupees One Crore, Nineteen Lakh, Eighty-Three Thousand, Nine Hundred

Nineteen) only submitted to the respondent No. 3 herein was not received by the

respondent No. 4.

22. Therefore, in view of such disputed factual situation, this petition is

liable to be dismissed on this ground alone, since the petitioner has an alternate

redressal forum in the form of a civil court of competent jurisdiction, submits

the learned DSGI.

23. This Court, on consideration of the submission made by the learned

counsel for the parties herein, has also looked into the contents of the petition as

well as the counter-affidavit filed by the State respondents No. 1, 2 & 3 and also

respondent No. 4 respectively. The rejoinder to the said affidavit has also been

taken note of.

24. What is apparent is that there was a contract agreement executed

between the petitioner and the relevant respondent authorities for construction

of the High-Level Bridge across the river Dabua at Gasuapara in KM 187 on

NH-62, including approaches in South Garo Hills District of Meghalaya. The

petitioner has however stated at para 4 of this petition that the total bill amount

raised and submitted to the respondent is ₹ 3,04,62,164/- (Rupees Three Crore,

Four Lakh, Sixty-Two Thousand, One Hundred Sixty-Four) only which was not

disputed by the respondent department. 2026:MLHC:1032

10

25. As have been noticed hereinabove, the learned counsel for the

petitioner, in course of argument, have mentioned an amount of ₹ 4,31,000/-

(Rupees Four Lakh, Thirty-One Thousand) only, being the total amount for

carrying out additional/supplementary work in the year 2017 pertaining to CC

wearing coat at Bridge No. 186/8 (High-Level Bridge across the river Dabua at

Gasuapara).

26. The petitioner has also stated in his written argument that out of the

total bill of ₹ 3,00,36,148/- (Rupees Three Crore, Thirty-Six Lakh, One Hundred

Forty-Eight) only ₹ 1,33,88,983/- (Rupees One Crore, Thirty-Three Lakh,

Eighty-Eight Thousand, Nine Hundred Eighty-Three) only have been released

to the petitioner through running bills. The outstanding amount to be realized by

the petitioner comes to ₹ 1,66,47,165/- (Rupees One Crore, Sixty-Six Lakh,

Forty-Seven Thousand, One Hundred Sixty-Five) only. However, it is also the

argument of the petitioner that there is a cost escalation bill dated 05.01.2015

raised by the petitioner for ₹ 1,19,83,919/-, the total outstanding amount due and

payable to the petitioner being ₹ 2,86,31,084/- only.

27. It is the observation of this Court that the detailed claim made by the

petitioner is not found in the petition. No mention of the amount of the bill for

price escalation has been stated in the petition. As such, this aspect of the matter

cannot be countenanced by this Court in the absence of clear and precise

pleadings, since the petitioner has advanced argument beyond the pleadings and 2026:MLHC:1032

11

has introduced facts which were not found in the petition.

28. Even otherwise, on a wholesome consideration of the facts and

circumstances of the case of the parties, there is no doubt that disputed question

of facts is involved herein. In this regard, the authority cited by the learned AAG

that is, the case of Puna Hinda (supra), para 18 and 24 which is relevant is quoted

herein below:

“18. Mr Nataraj also placed reliance on the judgment of this

Court reported as Joshi Technologies International Inc. v. Union of

India, (2015) 7 SCC 728 wherein the following was held: (SCC pp.

757-58 & 766, paras 55, 59 & 69)

“55. Law in this aspect has developed through a

catena of judgments of this Court and from the reading of

these judgments it would follow that in pure contractual

matters the extraordinary remedy of writ under Article 226

or Article 32 of the Constitution cannot be invoked.

However, in a limited sphere such remedies are available

only when the non-Government contracting party is able to

demonstrate that it is a public law remedy which such party

seeks to invoke, in contradistinction to the private law

remedy simpliciter under the contract. Some of the case law

to bring home this cardinal principle is taken note of

hereinafter.

59. On the basis of these facts, this Court observed that

the aforesaid observations of the High Court, (1986 SCC

OnLine All 110) relying upon Ramana Dayaram Shetty case,

(1979) 3 SCC 489 were not correct. Thus observed the Court,

speaking through Ratnavel Pandian, J.: (Ajai Pal Singh case,

(1989) 2 SCC 116, SCC pp. 125-26, paras 21-22)

‘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 case, (1979) 3

SCC 489, there was no concluded contract as in this

case. Even conceding that the BDA has the trappings 2026:MLHC:1032

12

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 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 non-statutory 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 v. State of

Bihar, (1977) 3 SCC 457, Premji Bhai Parmar v.

DDA, (1980) 2 SCC 129 and Divl. Forest Officer v.

Bishwanath Tea Co. Ltd. (1981) 3 SCC 238.

69. The position thus summarised in the aforesaid

principles has to be understood in the context of discussions

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 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 2026:MLHC:1032

13

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.”

“24. Therefore, the dispute could not be raised by way of a writ

petition on the disputed questions of fact. Though, the jurisdiction of

the High Court is wide but in respect of pure contractual matters in

the field of private law, having no statutory flavour, are better

adjudicated upon by the forum agreed to by the parties. The dispute

as to whether the amount is payable or not and/or how much amount

is payable are disputed questions of facts. There is no admission on

the part of the appellants to infer that the amount stands crystallised.

Therefore, in the absence of any acceptance of joint survey report by

the competent authority, no right would accrue to the writ

petitioner only because measurements cannot be undertaken after

passage of time. Maybe, the resurvey cannot take place but the

measurement books of the work executed from time to time would

form a reasonable basis for assessing the amount due and payable to

the writ petitioner, but such process could be undertaken only by the

agreed forum i.e. arbitration and not by the writ court as it does not

have the expertise in respect of measurements or construction of

roads.”

29. Similarly, the case of Joshi Technologies International Inc.(supra),

para 55, 59, 69.2 being relevant is reproduced herein below as:

“55. Law in this aspect has developed through catena of

judgments of this Court and from the reading of these judgments it

would follow that in pure contractual matters the extraordinary

remedy of writ under Article 226 or Article 32 of the Constitution

cannot be invoked. However, in a limited sphere such remedies are 2026:MLHC:1032

14

available only when the non-Government contracting party is able to

demonstrate that it is a public law remedy which such party seeks to

invoke, in contradistinction to the private law remedy simpliciter

under the contract. Some of the case law to bring home this

cardinal principle is taken note of hereinafter.

59. On the basis of these facts, this Court observed that the

aforesaid observations of the High Court relying upon Ramana

Dayaram Shetty case, (1979) 3 SCC 489, were not correct. Thus

observed the Court, speaking through Ratnavel Pandian. J.: (Ajai

Pal Singh case, (1989) 2 SCC 116, SCC pp. 125-26, paras 21-22)

“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 case (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

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 non-

statutory 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 v. State of Bihar (1977) 3 SCC 457, Premji

Bhai Parmar v. DDA (1980) 2 SCC 129 and Divl. Forest Officer v.

Bishwanath Tea Co. Ltd. (1981) 3 SCC 238"

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 2026:MLHC:1032

15

disputes is to be resorted to through the means of arbitration.”

30. Based on the authorities referred to herein above, the principle has

also been adverted to by this Court in the case of Smti. Priyanchi R. Marak

(supra), the relevant para being noted herein below as para 37, 38 and 39:

37. Venturing to ignore such a situation repleted with disputed

question of facts would reduce this Court to a trial court wherein

evidence has to be looked into and appreciated, which is not a duty

cast upon a constitutional Court, considering the facts and

circumstances of this instant case. In this regard, the observations of

a Division Bench of this Court in the case of Adarsh Saraswati

Mahila Shiksha and Gramin Vikas Samiti v. State of Meghalaya &

Ors. in MC(WA) No. 16/2023 in W.A. No. 22/2023, at para 7 of

Judgment dated 19.07.2023, is found relevant to the factual situation

of this instant case, wherein it was observed as follows:

“7. For the wealth of reasons indicated in the order

impugned, the writ court held that the writ petition was liable

to be dismissed as not maintainable. Indeed, notwithstanding

the wide authority available to a Constitutional Court under

Article 226 of the Constitution, there is an element of self-

restraint that is exercised. Since writ proceedings are

decided on affidavit evidence and on summary procedure,

disputed questions of fact which require proof are not

entertained. In any event, at the end of the day, the real

grievance of the petitioner is that the petitioner has been

unfairly treated and has been deprived of the profits that the

petitioner was entitled to upon successful completion of the

work. Such grievance sounds in money and the relief that the

petitioner should pursue should be by way of a suit for

damages.”

38. This Court having convinced itself that there appears to be

question of disputed facts to be looked into, the relevant authorities

cited in this regard may not be off the mark. In the case of Poona

Hinda(supra) at para 24 the Hon’ble Supreme Court has held that

“…Though, the jurisdiction of the High Court is wide but in respect

of pure contractual matters in the field of private law, having no

statutory flavour, are better adjudicated upon by the forum agreed to 2026:MLHC:1032

16

by the parties. The dispute as to whether the amount is payable or

not and/or how much amount is payable are disputed questions of

facts.”

39. In the case of Joshi Technologies International Inc.(supra) at

para 69 of the same, the Hon’ble Supreme Court has observed that

though there is no bar to the maintainability of a writ petition in a

contractual matter where there are disputed questions of fact or even

when monetary claim is raised, however discretion is bestowed upon

the High Court to refuse to exercise such jurisdiction, when there are

serious disputed questions of fact and money claims arising out of

contractual obligations are normally not to be entertained, the fact

being that there is proper forum for determination of the parties’

right, for example a civil court of competent jurisdiction.

31. In view of the above, this Court is of the opinion that the grievance

of the petitioner can only be remedied by an approach before the civil court of

competent jurisdiction. Considering the fact that the proceedings before this

Court has travelled a long distance since the year 2023, therefore, provided the

petitioner approach such civil court within a period of 60 days from the date of

this order, the period spent before this Court is hereby condoned as far as the

rigors of the provisions of the Limitation Act is concerned.

32. In the final analysis, this petition is hereby disposed of in the terms

hereinabove set out. No costs.

Judge

2026:MLHC:1032