ABDUL KASEM ALI AHMED Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE moot question, which needs to be addressed in the present set of writ petitions, is whether the remedy available, under Article 226 of the Constitution of India, can be legitimately used for obtaining a direction from the High Court for payment of amounts due and payable by the State Government in contractual matters and if so, in what circumstances, such a remedy can be made available ?

(2.) IN the present set of writ petitions, the facts are similar and may, in brief, be set out thus: The petitioners have entered into agreements with the State Government for either executing different contract works for the Government or for supplying various articles to the Government. The petitioners have completed their part of the contracts and have raised their demands for payment. There has been total inaction, on the part of the Government, in making payment of the dues of the petitioners, although the amounts, claimed as dues by the petitioners, are admitted by the Government as due and payable to the petitioners by the Government. In some of the transactions, non-availability of financial resources is cited as a reason for delay in making the payment and assurance is offered that payment would be made as and when funds are made available. It is in these circumstances that the petitioners have sought for issuance of writ/writs commanding the respondents to make payment of the unpaid dues of the petitioners.

(3.) WHILE considering the present set of writ petitions, it is also important to note that the factual scenario, in the present set of writ petitions, is, in fact, common to many other writ petitions, which were filed, in this High Court, in the past. This High Court, in similar situations, disposed of earlier, several writ petitions, directing the Department concerned to verify and if any amount is found, on such verification, due and payable, then, such outstanding dues of the petitioners be paid within the time-frame specified by the Court. These directions led to a very unhappy situation, for, some of the contractors or suppliers, who had been able to approach this Court seeking issuance of appropriate writ (s) or order (s), could obtain their payments by edging out the claims of those, who had not approached the Court or who may have come to the Court later. Another fall-out of the directions for payment, which had been issued in these types of writ petitions, was that many of such orders of the High Court, having remained unimplemented, contempt proceedings were initiated, wherein defence taken by the concerned officer (s) was also almost common, the defence being that the orders of the Court had remained unimplemented not on account of any deliberate omission on the part of the officers concerned, but because of the fact that no money was available for payment in accordance with the directions issued in the writ petitions. In fact, in a contempt proceeding, registered as COP (C) No. 5/2004, the departmental Commissioner and Special Secretary filed an affidavit pursuant to a specific order passed by the Court stating, inter alia, that there were, in all, 1062 contractors under the Public Works Department (in short, 'the PWD'), Government of Assam, whose dues were payable under the orders of the Court and the total amount of money payable was Rs. 4,718. 22 lakhs. Having realized that there may be a large number of other contractors to whom money was due, but who may not have moved the Court for payment of their admitted outstanding dues, a Single Bench, in Jatin Pathak Vs. State of Assam and Ors. (WP (C) No. 3354/2004, (which was decided on 31. 05. 2005), observed and directed as follows:-