JUDGMENT
M.BK. Singh, J.
1. Heard Mr. C.T. Jamir, learned Counsel appearing on behalf of the petitioners and Mrs. Y. Longkumer, learned Government Advocate appearing on behalf of the Government respondents.
2. This writ petition has been filed praying mainly for directing the respondents to make payment of the petitioners’ 12 (twelve) pending bills amounting to Rs. 9,24,015 with interest as done in many other similar cases. According to the petitioners, they are petty contractors, who executed some works under PHE Department, Phek Division during the period 1984 to 1996 and the works were also duly verified by the concerned Verification Committee. Further, according to the petitioners, though the concerned officials of the PHE Department, Phek Division initiated a process for clearing the said pending bills and requested the Finance Department for releasing sufficient fund for enabling to clear them, the later has failed to do so.
3. In the counter affidavit filed on behalf of respondents 2, 3 and 4, there is admission about the execution of various works by the petitioners during the said period, the verification by the concerned Verification Committee and the pendency of bills of the total amount of Rs. 9,24,015. According to them, the Department is not in a position to clear the pending bills due to non-availability of fund for the purpose.
4. Mr. C.T. Jamir, learned Counsel appearing on behalf of the petitioners, vehemently submits for directing the respondents to make payment of the admitted pending bills within a specified time as was done by this Court in many other similar cases.
5. Some cases of the nature similar to the present one are found to have been disposed of by this Court by giving direction of the type submitted by the petitioners’ counsel. In my considered opinion, the said type of direction is causing injustice to may contractors, who have not yet approach this Court or who are able to approach this Court only later for obtaining the said type of direction, inasmuch as those contractors, who have been able to obtain the said type of direction earlier are edging out the claims of the former class of contractors. There is no appreciable reason as to why, in respect of payment of pending bills, priority should be given to contractors who have been able to obtain the said type of direction by approaching this Court earlier, over those contractors whose bills have been pending longer but have not been able to obtain the said type of direction from this Court.
6. For securing the interest of all concerned and for ensuring an equitable distribution of Government funds in discharge of the admitted outstanding dues of the citizens, a Single Bench of this Court in Jatin Pathak v. State of Assam and Ors. WP(C) No. 3354/04 of the Principal Seat, decided on 31.5.2005, instead of issuing direction of the type mentioned above, gave modified directions to be followed in dealing with similar cases. The Single Bench in the above referred case held:
This court may reasonably assume that there will be a large number of other contractors to who money is due but who may not have moved the court for payment of their admitted outstanding dues. In the aforesaid situation, I am of the considered view that the present writ application ought to be disposed of with a little modification of the orders passed earlier in similar matters so as to secure the interests of all concerned and to ensure an equitable distribution of Government funds in discharge of the admitted outstanding dues of the citizens. Accordingly, it is ordered that the following directions shall govern this particular case as well as the course of action that the Department shall now adopt in deciding all similar claims that may be pending before it.
(1) The Public Works Department of the State of Assam shall prepare a list of contractors, in each of its Division to whom money is admitted to be due on account of the contract works performed whether under orders of the court or otherwise.
(2) Such lists will be prepared Division-wise in strict chronological order on the basis of the date on which payment is due.
(3) In drawing of the aforesaid list, the names of the contractors may be arranged under the separate Heads of Accounts that may be involved.
(4) The funds received by the Public Works Department under the particular Heads of Accounts and against the Division will be applied for discharge of the admitted dues in the order in which the list is prepared and maintained.
(5) All the contractors who claim money to be due will be at liberty to have their names registered in the concerned Division, which registration will be effected by the concerned authority after due verification of their entitlement to the payment claimed.
This writ petition shall stand disposed of in terms of the above directions.
7. However, Mr. C.T. Jamir, learned Counsel appearing on behalf of the petitioners frankly submits that the petitioners are not interested to get a direction of the type given in Jatin Pathak (supra). The only direction sought by the petitioners is the one directing the respondents for making payment of the admitted pending bills within a fixed period with interest. In my considered opinion, it will not be fair and just to issue the direction sought by the petitioners without anything to show that they are the only contractors whose bills are pending in the said Department.
8. It is also to be noted that all the contract works were admittedly executed during the period from 1984 to 1996. Three years have already lapsed from the date on which the payment in respect of the said works become due. There is no dispute that a period of limitation prescribed for recovery of a due is 3 years from the date on which the payment becomes due. It is well settled that the maximum period fixed by the Legislature as the period of limitation for obtaining relief from the civil court is a matter of State policy and may be, admittedly, taken to be reasonable standard by which the delay in seeking the remedy under article 226 can be measured. Where the delay is more than the prescribed period of limitation, it will always be proper for the court to hold that such delay is unreasonable. In State of M.P. and Anr. v. Bhailal Bhai , the Supreme Court held:
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 article 226 can be measured. The 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 17th January, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we arc of opinion the orders for refund made by the High Court in these seven cases cannot be sustained.
9. In the present writ petition, no explanation is given as to why the petitioners filed a case only in the month of April 2006 claiming payment in respect of contract works executed during the period 1984 to 1996. In absence of any explanation for the delay in filing the writ petition, it deserves no consideration from this Court. The petitioners ought to have given explanation as to why they had not approached this Court before the due became time barred and in the absence of the said explanation, this Court is not in a position to decide if the petitioners have good reasons for not approaching the court before the limitation period expired.
10. Moreover, it is well settled that a writ petition under article 226 of the Constitution will not lie for mere recovery of an amount due and payable under a contract by the Government. In Improvement Trust, Roper v. T. Tejinder Singh Gujral and Ors. (1995) (Supp) 4 SCC 577, the Supreme Court held:
No writ petition can lie for recovery of an amount under a contract. The High Court was clearly wrong in allowing and entertaining the writ petition.
In Radhakrishan Agarwal v. State of Bihar (1997) 3 SCC 457, the Supreme Court held that in respect of breach of contract pure and simple, remedy under article 226 is not appropriate, for a writ of mandamus under article 226 is issued for enforcing a public duty and not a private duty. Every breach of contract by the State or by its officer is not a breach of public duty. Thus, merely on the ground that the bills raised by the petitioners are admitted to be due and payable by the State, a writ of mandamus commanding the State to make payment of the due is not to be issued. In Sugan Mal v. State of M.P. AIR 1965 SC 1750, a writ of mandamus was sought solely for refund of money alleged to have been illegally collected by the State. The question was whether a writ petition solely aimed at obtaining a writ of mandamus commanding the State to refund money collected by the State would be maintainable. The Supreme Court held:
We, therefore, hold that normally petition solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim, defences which cannot in most cases be appropriately raised and considered in the exercise of writ jurisdiction.
11. In ABL International Ltd. v. Export Credit Guarantee Ltd. , one of the questions considered by the Supreme Court is whether a writ petition under article 226 of the Constitution of India is maintainable to enforce a contractual obligation of the State or its instrumentality. After referring to other earlier decisions including Sugan Mal (supra), the Supreme Court held at paragraph 27 of ABL International Ltd. (supra):
27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition :- (a) In a appropriate case, a writ petition against a State or its instrumentality of a State arising out of a contractual obligation is maintainable, (b) Merely because some disputed question of facts 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.
After taking into consideration of the law and facts in ABL International Ltd. (supra), the Supreme Court held in paragraph 53:
53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in article 14 of the Constitution. Thus if we apply the above principle of applicability of article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of the state and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceeding Rs. 16 lakh. On facts we have found that the terms of the policy do not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when the Kazakhstan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner.
12. In the light of the decision of the Apex Court in ABL International Ltd. (supra), there is no any doubt that when the State acts contrary to public good and public interest or unfairly or unjustly or unreasonably, the constitutional guarantee given in article 14 would be attracted and as such the constitutional remedy provide under article 226 would be available to the aggrieved person.
13. In the present writ petition, there is an allegation about adopting pick and choose policy by the Finance Department of the State in the matters of giving financial sanction for clearance of pending bills. Paragraph 8 of the writ petition is as follows:
8. That the petitioners beg to state that although the Department has taken up the matter for according sanction with the Finance Department, the response from the Finance Department is negative and had thereby denied payment on the ground of lack of fund. However, it is stated that in the matter of according financial sanction to the Department, the Finance Department adopted pick and choose policy and the payment are being made on the recommendation of VIPs and to the Contractors who has influenced in the Finance and the concerned Department. The petitioners crave the leave of this hon’ble court to refer and rely at the time of hearing on such allocation of funds on additionally whereby the Department has applied pick and choose policy.
Further, paragraph 13 is as follows:
13. That the action of the respondents by applying pick and choose policy with regard to the payment of bills is wholly arbitrary, discriminatory and the same is violative of article 14 of the Constitution of India.
14. In the counter affidavit filed on behalf of respondents 2, 3 and 4, there is no comment in respect of the above said allegation of the writ petitioners. No counter affidavit has been filed by or on behalf of respondent No. 1. Though there is no specific denial from the side of any of the respondents in respect of the above said allegations of the petitioners at paragraphs 8 and 13 of their writ petition, in the absence of specific instances in which the concerned authority of the State adopted pick and choose policy or acted arbitrarily and evidences in support of such instances, this Court is not. supposed to entertain the said allegations. It is well settled that in a writ petition, if the facts are not pleaded or the evidence in support of such facts are not annexed to the pleadings, the court is not to entertain mere allegations of arbitrariness. In Bharat Singh v. State of Haryana , the Supreme Court held that there is a distinction between the pleading under the writ petition/affidavit and plaint and that while in a pleading, i.e., plaint or in a written statement, facts and not evidence are required to be pleaded, in a writ petition or a counter affidavit, not only the facts have to be pleaded but also evidences in proof of such facts are to be annexed thereto. In the present case, since the petitioners have not stated the material facts indicating the instances in which the State acted arbitrarily or adopted pick and choose policy and since the petitioners have not annexed materials/evidences in support of the allegation of arbitrariness, this Court cannot come to a definite finding of the said allegation and grant relief to the writ petitioners.
15. On careful consideration of the case of the present writ petitioners, it is ascertained that this writ petition has been filed merely for recovery of a time barred dues from the State. Such a writ petition is not maintainable in law as seen in the light of considerations already made and for reasons already given. Accordingly, this writ petition is dismissed as not maintainable. This dismissal will not however, bar the respondents from taking necessary appropriate steps for making payment in respect of pending bills of the petitioners and other similarly situated persons, if the concerned respondent is satisfied about the genuineness of the claim. The steps taken by the concerned respondent shall be in such a way that no discrimination is caused to any of the similarly situated persons and that there is an equitable distribution of the Government fund in discharging outstanding dues of the citizens.
This writ petition stands dismissed with observations made above. No order as to costs.