S.N Jha, J.:— The petitioner, a contractor, seeks mandamus for payment of his so called outstanding bills. He had come to this Court earlier in C.W.J.C No. 5 of 1992 (R) for the same very relief, which was disposed of on 6.1.1992 in the following terms:
“In exercise of our jurisdiction under Article 226 of the Constitution of India, no writ of mandamus can be issued and the remedy of the petitioner is to raise grievance before the higher authorities which, we are sure, shall receive due consideration.”
If the petitioners are still not paid their bills, the remedy of the petitioner would be either to enforce the arbitration agreement, if any, or to file a suit.
This application is permitted to be withdrawn as prayed for.”
2. This writ application was filed on 19.2.1992 stating that pursuant to the aforesaid orders of this Court the petitioner filed representation on 10.1.1992 but no orders were passed by the concerned respondents. The writ application came up for preliminary hearing at the stage of admission on 5.3.1992 and was disposed of with a direction to respondents 3 and 4 to make payment of the pending bills, said to have been passed on 30.9.1989 itself, as expeditiously as possible before 31st March 1992. An application seeking review of the said order dated 5.3.1992 was filed on behalf of the respondents, namely, State of Bihar and its officials, on 8.4.1992 After hearing the parties, the review application was allowed on 12.5.1992 and the writ application was directed to be heard observing that the review application will be treated as counter affidavit in the instant writ application. This matter, accordingly, was listed before us and heard finally with the consent of the parties.
3. Before we notice the submissions made on behalf of the petitioners, it would be appropriate to briefly refer to the stand of the respondents. The sheet-anchor of the claim of the petitioner is the letter no. 627 dated 30.6.1989 said to have been issued by the then Executive Engineer, a copy whereof has been marked Annexure-4 to the writ petition, informing the petitioner that his pending bills have been passed and steps are being taken to make payment within 15 days. According to the respondents, the then Executive Engineer, Sri Kailash Sinha, made over charge of his office on 30.6.1989 on transfer. The letter as contained in Annexnre-4 was apparently issued in order “to give handle to the writ petitioner for the unfounded claim he has made”. The successor Executive Engineer by his letter dated 6.10.1989 asked all the contractors including the petitioner herein to substantiate their claims. However, no response came from the contractors including the petitioner in spite of reminder to that effect by letter no. 115 dated 9.3.1990 The petitioner coerced the successor Executive Engineer Sri Upendra Bahadur to make payment and he also forcibly took away a cheque for Rs. 2,38,585 which was also encashed. The matter was referred to the State Government and finally after necessary enquiry and verification first information report has been lodged by the Superintending Engineer on 4.4.1992 being Bistupur P.S Case No. 91/92 against the then Executive Engineer Sri Kailash Sinha, Junior Engineer, as also the petitioner making various allegations regarding misappropriation of Government money and material, forgery, criminal intimidation etc. It would, thus, appear that the respondents have denied the correctness of the impugned bills and have asserted that the petitioner is not entitled to claim payment of the bills. The respondents have further taken the stand that the petitioner has not come to this Court with clean hands inasmuch as material facts regarding the outcome of his previous writ petition have not been stated correctly and, therefore, the writ petition is fit to be dismissed on this very ground. The plea of res judicata, by reason of the previous order in C.W.J.C No. 5 of 1992 (R) has also been taken.
4. On behalf of the petitioners it was submitted that the fact that the petitioner had moved this Court earlier in C.W.J.C No. 5 of 1992 (R) has not been suppressed, as would be evident from paragraph 13 of the writ petition. It was also stated relying on Daryao v. State of U.P (AIR 1961 Supreme Court, 1457) that the dismissal of writ petition on the ground of alternative remedy does not constitute res judicata.
5. The petitioner has, no doubt, stated in paragraph 13 that he had moved this Court in C.W.J.C No. 5 of 1992 (R). However, about the order passed in the said writ petition, it has been stated:
“This Hon'ble Court vide order dated 6.1.1992 has been pleased to permit the petitioner to withdraw his writ application with the observation that the petitioner shall file representation before the higher authorities.”
6. The contents of the order dated 6.1.1992 have been quoted above. It would appear therefrom that this Court specifically held that no writ of mandamus could be issued, directing the respondents to make payment of the contractors bills in the writ jurisdiction of this Court and, therefore, the petitioner could raise his grievance before the higher authority, failing which he could avail of the arbitration clause in the agreement or file a suit. However, an omnibus statement was made in paragraph 13 of the petition, as noticed above, that the writ petition was permitted to be withdrawn with observation that the petitioner would file representation. The suppression of the material facts is writ large. Suppressio very suggestio falsi. If on previous occasion this Court being cognisant of the limitations of the writ jurisdiction in issuing writ of mandamus directing payment of contractors' bills, refused to pass any positive order relegating the petitioner to arbitration or suit, it is difficult to appreciate how on selfsame facts, the same very relief can be granted in this application. In our opinion, the order passed in C.W.J.C No. 5 of 1992 (R) is binding on the petitioner on all fours.
7. However, in deference to Mr. Basudeva Prasad, learned counsel appearing for the petitioner, we heard him on the question as to whether a writ of mandamus can be issued in the matter. Learned counsel placed reliance on Sharif Ahmed v. Regional Transport Authority, Meerut, ((1978) 1 SCC 1 : AIR 1978 Supreme Court, 209), Surya Narain Yadav v. Bihar State Electricity Board ((1985) 3 SCC 38 : AIR 1985 Supreme Court, 941), Assistant Commissioner of Commercial Taxes (Astt.) v. Dharmendra Trading Company (AIR 1988 Supreme Court, 124) and Star Enterprises v. City and Industrial Development Corporation (1990 (2) Judgments Today, 401). Learned counsel, however, admitted that there is no decision of the Supreme Court holding that a writ of mandamus can be issued directing payment of contractors' bills.
8. In Radha Krishna Agrawal v. State of Bihar ((1977) 3 SCC 457 : AIR 1977 Supreme Court, 1496) the Supreme Court upheld the categorization of cases arising out of breaches of alleged obligations by the State or its agents into three types of cases, namely, (i) where petitioner makes a grievance of breach of terms on the part of the State in cases where on assurance or promise made by the State, he has acted to his prejudice and predicament but the agreement is short of a contract within the meaning of Article 299 of the Constitution, (ii) where the contract entered into between the party aggrieved and the State is in exercise of a statutory power under certain Acts or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and (iii) where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about breach of such contract by the State. It was-held that so far as cases coming under categories (i) and (ii) are concerned, writ application under Article 226 of the Constitution is maintainable whereas, in cases falling in category (iii) no application invoking the jurisdiction of the High Court under Article 226 was maintainable. A Full Bench of this Court in Pancham Singh v. State of Bihar, (1991 (1) PLJR, 352) noticed the decision in Radha Krishna Agrawal's case (supra) as also several later decisions of the Supreme Court and held that in spite of the aforementioned later judicial pronouncements as mentioned therein, the law laid down in Radha Krishna Agrawal's case (supra) holds the field. However, a fourth category of cases was carved out, namely, where the contract entered into between the State and the person aggrieved although non-statutory and purely contractual is cancelled on a ground de hors any of the terms of the contract which is also per se violative of Article 14 of the Constitution as being arbitrary, and it was said that even in such cases applications under Article 226 are maintainable.
9. Learned counsel for the petitioner made a vain attempt to bring the instant case in the fourth category. However, it is obvious that it is not a case of cancellation of contract nor the alleged breach, namely, non-payment of the bill can be said to be de hors the terms of the contract. We are also satisfied on the facts of the case that breach, if any, is not arbitrary. We have no manner of doubt that the instant case falls in category (iii) as enumerated in Radha Krishna Agrawal's case (supra), since the grievance of the petitioner emanates from a contract entered into between the State and the petitioner which as it is non-statutory and purely contractual and, therefore, this writ petition seeking mandamus is not maintainable.
10. From the stand of the respondents as set out in the counter affidavit, briefly noticed above, it is obvious that serious disputed questions of facts are involved and exercise of jurisdiction under Article 226 of the Constitution cannot be said to be a proper exercise of discretion. We find ourselves in respectful agreement with the order passed in C.W.J.C No. 5 of 1992 (R). The previous order dated 5.3.1992 in the instant writ petition was passed without giving opportunity to the respondents to file counter affidavit. The said order already stands recalled by reason of the order dated 12.5.1992 allowing the civil review application. For the reasons stated above, this writ application has no merit and is, accordingly, dismissed.
Narayan Roy, J.:— I agree.