PRANAB KAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) At the initial stage of the hearing on behalf of the Kolkata Municipal Corporation an objection was raised with regard to the maintainability of the writ petition. After a contested hearing the said issue was settled by this Court by an order dated 07.01.2018. It was submitted by the learned counsel for the Corporation that since the writ petition involves disputed facts the same should be relegated before the Civil Court. I considered the objection at length and held that the writ petition was maintainable and the matter was not required to be relegated before the Civil Court. At the final hearing Mr. Banerjee again raised the same issue regarding maintainability. Mr. Chakraborty appearing for the petitioner submitted that since the issue has already been settled by this Court and no appeal has been preferred therefrom by the Corporation, the Corporation cannot argue the same point once again. Mr. Banerjee submitted that whatever decision was taken by this Court on maintainability was a prima facie finding. Therefore, there is no bar to argue the same issue at the final stage of the proceeding. However, I am not inclined to uphold the contention of Mr. Banerjee at this stage having not challenged my initial order on the question of maintainability.

(2.) By this writ petition one Pranab Kar has alleged that the Kolkata Municipal Corporation has not been releasing outstanding payment for the work of trident light installed by the petitioner in pursuance of an offer made on behalf of the authorities. It is claimed that a bipartite agreement dated 6th September, 2013 was entered into between the petitioner on the one hand and the Kolkata Municipal Corporation on the other and in terms thereof, although, the petitioner completed the work scheduled to be done by it and submitted final bills, 75% of the amount raised in such bills has already been paid by the Corporation, but 25% thereof has been kept withheld together with the retention money and security deposit. According to the petitioner, as it appears from page 21 to 24 of their affidavit-in-reply affirmed by the writ petitioner, the petitioner placed a final bill for a claim of Rs.4,20,366/- (Rupees Four lakh twenty thousand three hundred sixty six) only, purportedly for execution of installation of roadside trident decorative light poles at S.P. Mukherjee Road. From the said bill the petitioners have pointed out that the Kolkata Municipal Corporation has deducted 25% of the amount, that is, sum of Rs.1,05,092/- (One lakh five thousand ninety two) only. The petitioner made a claim as referred to earlier to release the said withheld amount of Rs.25% together with 10% retention money and security deposit which was deducted earlier. The same having not been paid by the Kolkata Municipal Corporation hence the present writ petition.

(3.) Parties filed their affidavits, supplementary affidavits and opposition thereto as also reply to the affidavit-in-opposition have been filed. Their learned Advocates have also been heard at length. Initially, a question arose before this Court with regard to the maintainability of the writ petition having regard to its pure and simple money claim, but, however, after hearing the parties I overruled the preliminary objection and as a result, the writ petition has been taken up for hearing after exchange of affidavits. On going through the contents of the petition it appears that the writ petitioner based his claim on an agreement which was executed by and between the writ petitioner and the Kolkata Municipal Corporation and the parties agreed to certain terms. Undisputedly, the agreement has been acted upon. Petitioner executed the work which he was entrusted; final bill was placed; such bill was scrutinized by the competent authority of the Kolkata Municipal Corporation 75% of such bill has already been paid to the writ petitioner. But in pursuance of a decision of the Mayor-In-Council, such 25% amount of the total bill has been withheld. To assert that the decision has been taken by the Mayor-In-Council to withhold the payment of balance 25% to the petitioner he has annexed a letter supplied by the Kolkata Municipal Corporation pursuant to the petitioner's application under Right to Information Act (Annexure "P-12") of the supplementary affidavit affirmed on 10th January, 2018. It is undisputed that provisional work order was issued in favour of the petitioner on 06.01.2012 which is annexed at page 7 (R 4 of the supplementary affidavit-in-opposition of respondent nos. 5, 6, 8 and 9) which mentions the time for completion was 30 days. However, a document has been annexed in the affidavit-in-reply affirmed by the petitioner on 2nd August, 2018 which discloses a document at page 72, issued by the Kolkata Municipal Corporation, Department of Lighting, laying down certain general conditions of contract specified for installation of roadside decorative trident light at S.P. Mukherjee Road of rail bridge to Metro Railway office flat. General conditions stipulated therein made it clear that various obligations were to be complied with which, inter alia, include clause 20 with regard to payment. Clause 20, however, specified as follows: