Binod Kumar Mishra vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.627 of 2023
In
Civil Writ Jurisdiction Case No.2718 of 2023
CNR No. BRHC010378082023
======================================================
Binod Kumar Mishra S/o Shri Paras Mishra, Resident of Vill and P.O.-
Durgadih, P.S.-Bikramganj, Dist-Rohtas (Sasaram), Bihar-802212.
... ... Appellant/s
Versus
1. The State of Bihar through Principal Secretary, Urban Development and
Housing Department, Govt. of Bihar.
2. The Executive Engineer cum Project Director District Urban Development
Agency under the Department of Urban Development and Housing, (Duda)
Rohtas, Govt. of Bihar.
3. The Executive Engineer, Bihar Urban Infrastructure Development
Corporation Ltd. Rohtas, Sasaram.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Deo Prakash Singh, Adv.
For the State : Mr. Yogendra Prasad Sinha, AAG-7
Mr. Rajeev Kumar Sinha, AC to AAG-7
For the BUIDCO : Mr. Lalit Kishore, Sr. Adv.
Mr. Rabindra Kumar Priyadarshi, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date : 30-10-2026
The present appeal has been filed against the order dated
29.03.2023, passed by the Ld. Single Judge of this Court in
CWJC No. 2718 of 2023, whereby and whereunder the writ
petition has been dismissed as not maintainable on the ground

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that in view of the provisions contained in the Commercial
Court Act, 2015, the petitioner is having an alternative and
efficacious remedy under the law.
2. The brief facts of the case, according to the appellant are
that the Respondents had published E-Tender bearing No. 02/
2014-15/DUDA/Rohtas in the newspaper and on the website,
pursuant whereto the appellant had participated in the tender
and was declared L-1, leading to allotment of work orders dated
14.11.2014 bearing nos. 2, 9 & 11, pertaining to construction of
PCC Road under Ward No. 16, Nagar Panchayat, Vikramganj,
Rohtas for the year, 2013-14, construction of PCC road and
drain under Ward No. 16, Nagar Panchayat, Vikramganj, Rohtas
& construction of Ghat at Kesath Rajwaha No. 1 under Ward
No. 16, Nagar Panchyat, Vikramganj, Rohtas. The appellant had
then entered into three agreements bearing Agreement No.
37/2014-15, 39/2014-15 and 42/2014-15, all dt. 27.12.2014 with
the Executive Engineer, District Urban Development Agency
(hereinafter referred to as “the DUDA”), Rohtas, Sasaram.
Thereafter, the appellant is stated to have commenced the work
and completed the same successfully within time, whereafter
measurement and physical verification was undertaken by the
competent authority and work bills were generated.

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3. It is the case of the appellant that though the value of
work done with respect to agreement no. 37/2014-15, agreement
no. 39/2014-15 and agreement no. 42/2014-15 were claimed by
him to be a sum of Rs. 7,53,525/- (work done value as per Pg.
No. 126 of the writ petition is Rs. 6,71,700/-), Rs. 76,863 (work
done value as per Pg. No. 133 of the writ petition is Rs. 71,852/)
and Rs. 17,38,103/- (work done value as per Pg. No. 109 of the
writ petition is Rs. 12,46,723/-) respectively, however part
payment to the tune of Rs. 3,80,000/, Rs. 38,000/- and Rs.
8,55,000/- was sanctioned, whereupon payment was made after
statutory deductions, in the year 2015. The appellant had then,
vide letters dt. 29.8.2017, 12.9.2017, 10.11.2022 & 23.12.2022,
requested the Executive Engineer/Project Director, DUDA,
Rohtas at Sasaram for making payment of the balance outstanding
dues, however to no avail. In fact, an FIR was lodged against all
the contractors including the appellant bearing Sasaram Nagar
P.S. Case No. 1326/2015 under Sections 419/420/409/467/468/
47 of the Indian Penal Code, wherein the police has already
submitted its investigation report stating therein that in
publication of fake tenders, there is no complicity of the
contractors. The appellant herein being aggrieved by non-
payment of the outstanding dues had filed a writ petition bearing

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CWJC No. 2718 of 2023, however the same has stood dismissed
being not maintainable in view of the fact that the appellant is
having an alternative and efficacious remedy under the law.
4. The learned counsel for the appellant has submitted that
the appellant has completed the entire work under the aforesaid
three agreements to the satisfaction of all concerned, whereafter
work completion certificate has also been issued and part
payment has also been made but the balance amount of
outstanding dues for the work completed by the appellant as per
the agreements in question has not been paid. In this connection,
the learned counsel for the appellant has referred to a judgment
rendered by the Hon’ble Apex Court in the case of ABL
International Ltd. & Anr. vs Export Credit Guarantee
Corporation of India Ltd. & Ors. , reported in (2004) 3 SCC 553 ,
paras no. 19, 27 and 52 whereof are reproduced herein below:-
“ 19. Therefore, it is clear from the above enunciation of
law that merely because one of the parties to the
litigation raises a dispute in regard to the facts of the
case, the court entertaining such petition under Article
226 of the Constitution is not always bound to relegate
the parties to a suit. In the above case of Gunwant Kaur
[(1969) 3 SCC 769] this Court even went to the extent of
holding that in a writ petition, if the facts require, even
oral evidence can be taken. This clearly shows that in an
appropriate case, the writ court has the jurisdiction to
entertain a writ petition involving disputed questions of
fact and there is no absolute bar for entertaining a writ

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petition even if the same arises out of a contractual
obligation and/or involves some disputed questions of
fact.
27. From the above discussion of ours, the following
legal principles emerge as to the maintainability of a writ
petition:
(a) In an appropriate case, a writ petition as against a
State or an instrumentality of a State arising out of a
contractual obligation is maintainable.
(b) Merely because some disputed questions of fact
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.
52. On the basis of the above conclusion of ours, the
question still remains why should we grant the reliefs
sought for by the appellants in a writ petition when a
suitable efficacious alternate remedy is available by way
of a suit. The answer to this question, in our opinion, lies
squarely in the decision of this Court in the case of
Shrilekha Vidyarthi [(1991) 1 SCC 212] wherein this
Court held: (SCC pp. 235-37, paras 20-22 & 24)
The requirement of Article 14 should extend even in the
sphere of contractual matters for regulating the
conduct of the State activity. Applicability of Article 14
to all executive actions of the State being settled and
for the same reason its applicability at the threshold to
the making of a contract in exercise of the executive
power being beyond dispute, the State cannot
thereafter cast off its personality and exercise
unbridled power unfettered by the requirements of
Article 14 in the sphere of contractual matters and
claim to be governed therein only by private law
principles applicable to private individuals whose
rights flow only from the terms of the contract without

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anything more. The personality of the State, requiring
regulation of its conduct in all spheres by requirements
of Article 14, does not undergo such a radical change
after the making of a contract merely because some
contractual rights accrue to the other party in
addition. It is not as if the requirements of Article 14
and contractual obligations are alien concepts, which
cannot coexist. The Constitution does not envisage or
permit unfairness or unreasonableness in State actions
in any sphere of its activity contrary to the professed
ideals in the preamble. Therefore, total exclusion of
Article 14 — non-arbitrariness which is basic to rule
of law — from State actions in contractual field is not
justified. This is more so when the modern trend is also
to examine the unreasonableness of a term in such
contracts where the bargaining power is unequal so
that these are not negotiated contracts but standard
form contracts between unequals.
Unlike the private parties the State while exercising its
powers and discharging its functions, acts indubitably,
as is expected of it, for public good and in public
interest. The impact of every State action is also on
public interest. It is really the nature of its personality
as State which is significant and must characterize all
its actions, in whatever field, and not the nature of
function, contractual or otherwise, which is decisive of
the nature of scrutiny permitted for examining the
validity of its act. The requirement of Article 14 being
the duty to act fairly, justly and reasonably, there is
nothing which militates against the concept of
requiring the State always to so act, even in
contractual matters. This factor alone is sufficient to
import at least the minimal requirements of public law
obligations and impress with this character the
contracts made by the State or its instrumentality. It is
a different matter that the scope of judicial review in
respect of disputes falling within the domain of
contractual obligations may be more limited and in

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doubtful cases the parties may be relegated to
adjudication of their rights by resort to remedies
provided for adjudication of purely contractual
disputes. However, to the extent, challenge is made on
the ground of violation of Article 14 by alleging that
the impugned act is arbitrary, unfair or unreasonable,
the fact that the dispute also falls within the domain of
contractual obligations would not relieve the State of
its obligation to comply with the basic requirements of
Article 14. To this extent, the obligation is of a public
character invariably in every case irrespective of there
being any other right or obligation in addition thereto.
An additional contractual obligation cannot divest the
claimant of the guarantee under Article 14 of non-
arbitrariness at the hands of the State in any of its
actions.”
5. The learned counsel for the appellant has next relied on a
judgment rendered by the Hon’ble Apex Court in the case of
Surya Constructions vs. State of Uttar Pradesh & Others ,
reported in (2019) 16 SCC 794 to submit that in case there is no
dispute with regard to the amount to be paid, the High Court
should intervene under Article 226 of the Constitution of India.
The learned counsel for the appellant has also relied on a
judgment rendered by a coordinate Bench of this Court in the
case of Fulena Construction Pvt. Ltd. vs. State of Bihar ,
reported in 2022 (3) PLJR 717 , paragraphs no. 19 to 21 whereof
are reproduced herein below:-
19. In the present case, no validity of any proceeding in
the legislature of a State has been called in question on
the ground of any alleged irregularity of procedure. The

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petitioner's claim is against the State Government of
Bihar for payment of dues arising out of a contract,
which is admitted. Admittedly the State Government has
made a request for deletion of clause 2.2.3 of CAG
report. After having admitted these facts, the State
Government cannot deny its liability to pay. The State-
respondent cannot be allowed to approbate and reprobate
in the same transaction. The doctrine of approbate and
reprobate has been lucidly summarized by the Supreme
Court in a recent decision in case of Union of India and
Ors. vs. N. Murugesan and Ors. reported in (2022) 2
SCC 25 paragraph 26 of which reads thus:-
"The phrases "approbate and "reprobate" are
borrowed from the Scots law. They would only mean
that no party can be allowed to accept and reject the
same thing, and thus one cannot blow hot and cold.
The principle behind the doctrine of election is inbuilt
in the concept of approbate and reprobate. Once again,
it is a principle of equity coming under the contours of
common law. Therefore, he who knows that if he
objects to an instrument, he will not get the benefit he
wants cannot be allowed to do so while enjoying the
fruits. One cannot take advantage of one part while
rejecting the rest. A person cannot be allowed to have
the benefit of an instrument while questioning the
same. Such a party either has to affirm or disaffirm the
transaction. The principle has to be applied with more
vigour as a common law principle if such a party
actually enjoys the one part fully and on near
completion of the said enjoyment, thereafter questions
the other part. An element of fair play is inbuilt in its
principle. It is also a species of estoppel dealing with
the conduct of a party.”
20. While laying down the law, the Supreme Court in case
of N. Murugesan (supra) has noticed various previous
decisions rendered by the Supreme Court including the
one in case of Rajasthan Industrial Development and
Investment Corporation and Anr. vs. Diamond and Gem

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Development Corporation Ltd. & Anr. reported in (2013)
5 SCC 470, wherein the Supreme Court has laid down
that a party cannot be permitted to "blow hot-blow cold",
"fast & loose" or "approbate & reprobate". The Supreme
Court has held that where one knowingly accepts the
benefits of a contract, he is estopped from denying the
validity of, or binding the effect of such contract.
21. We need not reiterate the settled legal position that
even in contractual matters, the public authorities have a
duty to act fairly, justly & reasonably, which is requirement
of Article 14 of the Constitution of India. In the present
case, the respondent-State of Bihar appears to have
denied payment to the petitioner even after having
utilized its services for the purpose of execution of work
on a ground, not germane for denial of the petitioner's
claim.”
6. Thus, it is submitted by the Ld. counsel for the appellant
that the Respondents ought to be directed to make payment of
the balance outstanding dues of the appellant in view of the law
laid down by the Hon’ble Apex Court and this Court.
7. Per contra , the Ld. Senior Counsel for the Respondents,
Sri Lalit Kishore, assisted by Sri Rabindra Kumar Priyadarshi,
Advocate has at the outset submitted that though the work was
completed and admissible amount of payment due was made to
the appellant in the year 2015, however he filed the connected
writ petition belatedly only in the year 2023, i.e. after lapse of
more than seven years, thus on the ground of delay itself, the
writ petition was liable to be dismissed. It is submitted that
complaints were received regarding the notice inviting tenders

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issued by the Respondents to the effect that the same were
published and decided in a collusive manner as also the same
were stage managed since its inception to cause financial loss to
the Government. Thereafter, an enquiry was made and then FIR
was instituted against the officials of the Respondents and the
contractors as also it was directed that there shall be a complete
ban in making any further payment to any contractor in
connection with NIT No. 2/2014-15 and 3/2014-15. In fact,
departmental proceedings were also initiated against various
Engineers of the State Government, thus huge irregularities and
illegalities were prevailing in issuance of the aforesaid NITs and
award of contracts.
8. The Ld. Senior Counsel for the Respondents has relied on
a judgment rendered by the Ld. Single Judge dated 13.09.2019,
passed in CWJC No. 10710 of 2016 ( M/s Ankuj Construction
vs. The State of Bihar & Ors. ) to submit that in similar matter,
the writ petitioner of the said case was granted liberty to seek
his remedy, if so advised, before the Arbitration Tribunal
constituted under the Bihar Public Works Contract Arbitration
Tribunal Act, 2008. It would be relevant to reproduce the
relevant paragraphs of the said judgment rendered in the case of
M/s Ankuj Construction (supra) herein below:-

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“It further appears that a supplementary counter
affidavit has also been filed on behalf of the respondent
no. 3 to 5. In the said counter affidavit also much
emphasis has been given on the facts which are already
taken note of hereinabove. The supplementary counter
affidavit has brought on record a letter dated 05.10.2015
written by the Principal Secretary, Urban Development
Department to the District Magistrate, Rohtas in which it
is stated that the Information and Public Relation
Department has submitted a report that the tenders
issued were fake and the then Executive Engineer was
involved in the matter.
It is submitted that a perusal of the letter as contained in
Annexure ‘F’ to the supplementary counter affidavit
would show that it nowhere refers the NITs with reference
to which the work were allotted to this petitioner. It is a
general kind of letter advising the District Magistrate to
get examined the tenders which have been published by
DUDA, Rohtas during the last three years.
After the directions issued by this court, a counter
affidavit has been filed on behalf of the DUDA through
it’s Executive Engineer. In it’s counter affidavit once
again the aforesaid facts have been repeated and the fact
that F.I.R. has been lodged against the then Executive
Engineer has been highlighted. It is submitted by learned
counsel for the petitioner that this affidavit also nowhere
discloses that the NIT under which the work were allotted
to the petitioner have been specifically verified and have
been found to be forged.
After imposition of a cost of Rs. 2000/- the State Urban
Development Department has filed a counter affidavit.
The counter affidavit of the department is no better than
but have been stated in the counter affidavit of the
aforesaid respondents. The departmental affidavit takes
note of the Three Men Committee constituted by the
District Magistrate vide letter no. 432 dated 06.11.2015.
The affidavit is although silent about the report of the

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Three Men Committee, but learned counsel for the DUDA
has brought to the notice of this court letter bearing no.
613 dated 30th April, 2015 written by the Executive
Engineer, DUDA Rohtas to Deputy Development
Commissioner, Rohtas in which he has doubted the
manner in which the E-Tender were sanctioned by the
then Executive Engineer. He has also brought to the
notice of this court the Three Men Committee’s report as
contained in Annexure ‘2’ to the supplementary counter
affidavit. The 3 Men Committee in his report has
submitted that they were not made available the
documents relating to 62 schemes which included the
scheme in which tenders were allegedly floated by the
then Executive Engineer under the financial year 2013-
14.
Learned counsel for the DUDA as well as the State has
submitted before this court that in the nature of
controversy it would only be just and proper that the
matter be considered after looking into various materials
and evidences by the arbitration tribunal constituted
under the Bihar Public Works Contract Arbitration
Tribunal Act, 2008, in fact a stand to this effect has been
taken in their counter affidavit that the writ application
be not entertained and the petitioner be relegated to the
alternative remedy of arbitration.
In the given facts and circumstances of the case after
noticing the facts and the kind of controversy which have
been raised before this court, the court deems it just and
proper not to entertain the writ application and leave it
open for the petitioner to seek his remedy, if so advised,
before the Arbitration Tribunal constituted under the
Bihar Public Works Contract Arbitration Tribunal Act,
2008.
The Writ Application stands disposed of with the
aforesaid liberty to the petitioner.”
9. The Ld. Senior Counsel for the respondents has next

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submitted that it is a well-settled law that if a writ petition is
filed after inordinate delay and especially after expiry of the
period of limitation prescribed for a civil action by way of filing
suit before a competent Civil Court or where the period of
limitation prescribed for availing the alternative and efficacious
remedy is over, the Court ought not to ordinarily lend its aid to a
party by the extraordinary remedy under Article 226 of the
Constitution of India and it would be sound use of discretion to
leave the party to seek his remedy by the ordinary mode of
action. In this regard, the Ld. Senior Counsel for the
Respondents has referred to a Constitution Bench judgment
rendered by the Hon’ble Apex Court in the case of State of
Madhya Pradesh & Anr. vs. Bhailal Bhai & Others , reported in
AIR 1964 SC 1006 , para nos. 14 to 17 and 21 whereof are
reproduced herein below:-
“ 14 . A portion of the tax thus assessed has been already
paid by the petitioners. It cannot now be disputed that
this payment was made under a mistake within S. 72 of
the Indian Contract Act and so the Government to whom
the payment has been made by mistake must in law repay
it. The question is: whether the relief of repayment has to
be sought by the tax-payer by an action in civil court or
whether such an order can be made by the High Court in
exercise of its jurisdiction under Art. 226 of the
Constitution. The jurisdiction conferred by Art. 226 is in
very wide terms. This Article empowers the High Court to
give relief by way of enforcement of fundamental rights

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and other rights by issuing directions, orders or writs,
including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari.
According to the petitioners a writ in the nature of
mandamus can be appropriately used where money has
been paid to the Government by mistake to give relief by
commanding re payment of the same. That in a number of
cases the High Courts have used the writ of mandamus to
enforce such repayment is not disputed. In a recent case
in AIR 1963 SC 925 this Court made in a petition under
Art. 32 an order for refund of tax illegally collected from
the petitioner under Rule 16 of the Madras General Sales
Tax (Turnover and Assessment) Rules, 1939. The question
whether the Court has this power to order refund was not
however raised there. In Sales Tax Officer, Banaras v.
Kanhaiya Lal Mukundlal Saraf, 1959 SCR 1350 (AIR
1959 SC 135) the appellants disputed the correctness of
the High Court's order made in an application under Art.
226 of the Constitution directing refund of taxes that had
been paid under the U.P. Sales Tax Act on the
respondent's forward transactions in silver bullion. After
the levy of sales tax on such transactions was held to be
ultra vires by the High Court of Allahabad the respondent
asked for refund of the tax paid and when that was
refused he applied to the High Court under Art. 226 of
the Constitution for a writ of certiorari for quashing the
assessment orders and a writ of mandamus requiring the
appellants to refund the amount illegally collected. The
order made in this case by the High Court for refund was
affirmed by this Court in appeal. In this case also the
power of the High Court to order such refund was not
challenged either before the High Court or before this
Court.
15 . We see no reason to think that the High Courts have
not got this power. If a right has been infringed-whether a
fundamental right or a statutory right and the aggrieved
party comes to the court for enforcement of the right it
will not be giving complete relief if the court merely

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declares the existence of such right or the fact that
existing right has been infringed. Where there has been
only a threat to infringe the right, an order commanding
the Government or other statutory authority not to take
the action contemplated would be sufficient. It has been
held by this Court that where there has been a threat only
and the right has not been actually infringed an
application under Art. 226 would lie and the courts
would give necessary relief by making an order in the
nature of in-junction. It will hardly be reasonable to say
that while the court will grant relief by such command in
the nature of an order of injunction where the invasion of
a right has been merely threatened the court must still
refuse, where the right has been actually invaded, to give
the consequential relief and content itself with merely a
declaration that the right exists and has been invaded or
with merely quashing the illegal order made.
16 . For the reasons given above, we are clearly of
opinion that the High Courts have power for the purpose
of enforcement of fundamental rights and statutory rights
to give consequential relief by ordering repayment of
money realised by the Govt. without the authority of law.
17 . At the same time we cannot lose sight of the fact that
the special remedy provided in Art. 226 is not intended to
supersede completely the modes of obtaining relief by an
action in a civil court or to deny defences legitimately
open in such actions. It has been made clear more than
once that the power to give relief under Art. 226 is a
discretionary power. This is specially true in the case of
power to issue writs in the nature of mandamus. Among
the several matters which the High Courts rightly take
into consideration in the exercise of that discretion is the
delay made by the aggrieved party in seeking this special
remedy and what excuse there is for it. Another is the
nature of controversy of facts and law that may have to be
decided as regards the availability of consequential relief.
Thus, where, as in these cases, a person comes to the
Court for relief under Art. 226 on the allegation that he

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has been assessed to tax under a void legislation and
having paid it under a mistake is entitled to get it back,
the court, if it finds that the assessment was void, being
made under a void provision of law, and the payment was
made by mistake, is still not bound to exercise its
discretion directing repayment. Whether repayment
should be ordered in the exercise of this discretion will
depend in each case on its own facts and circumstances.
It is not easy nor is it desirable to lay down any rule for
universal application. It may however be stated as a
general rule that if there has been unreasonable delay the
court ought not ordinarily to lend its aid to a party by this
extraordinary remedy of mandamus. Again, where even if
there is no such delay the Government or the statutory
authority against whom the consequential relief is prayed
for raises a prima facie triable issue as regards the
availability of such relief on the merits on the grounds
like limitation the Court should ordinarily refuse to issue
the writ of mandamus for such payment. In both these
kinds of cases it will be sound use of discretion to leave
the party to seek his remedy by the ordinary mode of
action in a civil court and to refuse to exercise in his

favour the extraordinary remedy under Art. 226 of the
Constitution.
21 . The learned Judges appear to have failed to notice
that the delay in these petitions was more than the delay
in the petition made in Bhailal Bhai's case, 1960 M.P.C.
304 out of which Civil Appeal No. 362 of 62 has arisen.
On behalf of the respondents-petitioners in these appeals
(C. A. Nos. 861 to 867 of 1962) Mr. Andley has argued
that the delay in these cases even is not such as would
justify refusal of the order for refund. We argued that
assuming that the remedy of recovery by action in a civil
court stood barred on the date these applications were
made that would be no reason to refuse relief under Art.
226 of the Constitution. Learned Counsel is right in his
submission that the provisions of the Limitation Act do
not as such apply to the granting of relief under Art. 226.

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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 Art. 226 can be measured. This
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 January 17, 1956 the delay in making
these applications should be considered un-reasonable.
If, on the other hand. as Mr. Andley seems to argue, that
the mistake discovered much later this would be a
controversial tact which cannot conveniently be decided
in writ proceedings. In either view of the matter we are of
opinion the orders for refund made by the High Court in
these seven cases cannot be sustained.”
“Underlining mine”
10. Having heard the learned counsel for the parties and
having perused the materials on record, we find that the facts of
the present case lies in a narrow encompass, inasmuch as the
work orders dated 14.11.2014, pertaining to construction of
PCC road, drain and Ghat under Ward No. 16, Nagar Panchayat,
Vikramganj, Rohtas, for the year 2013-14 were issued to the
appellant, leading to the appellant having entered into three
agreements dated 27.12.2014 with the Executive Engineer,
DUDA, Rohtas at Sasaram. The appellant is stated to have

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completed the work in time, whereafter bills were raised by the
appellant and part payment was made in the year, 2015 itself,
however, the appellant had filed the connected writ petition,
inter alia praying therein for directing the Respondents to pay
the admitted outstanding amount with interest pertaining to the
aforesaid three agreements, after a huge delay of about eight
years but without assigning any satisfactory, bonafide,
convincing much less plausible reason for filing the said writ
petition after an inordinate delay of about eight years.
11. At this juncture, we would like to refer to a judgment
rendered by the Hon’ble Apex Court in the case of Joshi
Technologies International Inc. vs. Union of India & Others ,
reported in (2015) 7 SCC 728 , paragraphs no. 70.8, 70.9, 70.10,
70.11 and 71 whereof are reproduced herein below:-
“ 70.8. If the contract between private party and the
State/instrumentality and/or agency of the State is under
the realm of a private law and there is no element of
public law, the normal course for the aggrieved party, is
to invoke the remedies provided under ordinary civil law
rather than approaching the High Court under Article
226 of the Constitution of India and invoking its
extraordinary jurisdiction.
70.9. The distinction between public law and private law
element in the contract with the State is getting blurred.

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However, it has not been totally obliterated and where
the matter falls purely in private field of contract, this
Court has maintained the position that writ petition is
not maintainable. The dichotomy between public law
and private law rights and remedies would depend on
the factual matrix of each case and the distinction
between the public law remedies and private law field,
cannot be demarcated with precision. In fact, each case
has to be examined, on its facts whether the contractual
relations between the parties bear insignia of public
element. Once on the facts of a particular case it is
found that nature of the activity or controversy involves
public law element, then the matter can be examined by
the High Court in writ petitions under Article 226 of the
Constitution of India to see whether action of the State
and/or instrumentality or agency of the State is fair, just
and equitable or that relevant factors are taken into
consideration and irrelevant factors have not gone into
the decision-making process or that the decision is not
arbitrary.
70.10. Mere reasonable or legitimate expectation of a
citizen, in such a situation, may not by itself be a distinct
enforceable right, but failure to consider and give due
weight to it may render the decision arbitrary, and this
is how the requirements of due consideration of a
legitimate expectation forms part of the principle of non-
arbitrariness.
70.11. The scope of judicial review in respect of disputes
falling within the domain of contractual obligations may

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be more limited and in doubtful cases the parties may be
relegated to adjudication of their rights by resort to
remedies provided for adjudication of purely contractual
disputes.
71. Keeping in mind the aforesaid principles and after
considering the arguments of the respective parties, we
are of the view that on the facts of the present case, it is
not a fit case where the High Court should have
exercised discretionary jurisdiction under Article 226 of
the Constitution. First, the matter is in the realm of pure
contract. It is not a case where any statutory contract is
awarded.”
12. Now coming back to the present case, we find that one of
the issues, which arises for consideration is as to whether delay
and laches on the part of the appellant in approaching the Writ
Court can be a valid ground for refusing writ relief. It is a well-
settled law that if a writ petitioner wants to invoke jurisdiction
of a Writ Court, he should come to the Court at the earliest
reasonably possible opportunity and inordinate delay in making
the motion for a writ is a good ground for refusing to exercise
such discretionary jurisdiction. The underlining object of this
principle is not to encourage agitation of stale claims and
exhume matters which have already been disposed of or settled
or where the rights of third parties have accrued in the
meantime. There is no upper limit and there is no lower limit as

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to when a person can approach a Court, however the question is
one of discretion and has to be decided on the basis of facts
before the Court, depending on and varying from case to case.
In this regard, we may refer to a judgment rendered by the
Hon’ble Apex Court in the case of Tridip Kumar Dingal &
Others vs. State of West Bengal & Others & other analogous
cases, reported in (2009) 1 SCC 768 . It is equally a well-settled
law, as has been held by the Hon’ble Apex Court in a catena of
judgments that while exercising extraordinary and equitable
jurisdiction under Article 226 of the Constitution of India, the
Constitutional Court, while protecting the rights of citizens,
should simultaneously keep itself alive to primary principle that
when an aggrieved person, without adequate reason, approaches
the Court belatedly, at his own leisure or pleasure, the writ Court
is not required to grant any indulgence to such indolent person
and on the ground of delay and laches alone, the writ Court
ought to throw the petition overboard at the very threshold. In
this regard, reference be had to the following judgments:-
“(i) State of Tamil Nadu vs. Seshachalam, reported in
(2007) 10 SCC 137;
(ii) C. Jacob vs. Director of Geology & Mining & Anr.,
reported in AIR 2009 SC 264;
(iii) State of Uttranchal & Anr. vs. Shiv Charan Singh

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Bhandari & Ors., reported in 2013 AIR SCW 6627;
(iv) Chennai Metropolitan Water Supply & Sewerage
Board & Others vs. T.T. Murali Babu, reported in
(2014) 4 SCC 108;
(v) State of Jammu & Kashmir vs. R.K. Zalpuri &
Others, reported in AIR 2016 SC 3006;
(vi) Union of India v. C. Girija, reported in (2019) 15
SCC 633”
13. It would be apposite to refer to yet another judgment
rendered by the Hon’ble Apex Court in the case of Mrinmoy
Maity vs. Chanda Koley & Others , reported in (2024) 15 SCC
215 , paragraphs no. 9, 11, 13 and 14 whereof are reproduced
herein below:-
“ 9. Having heard rival contentions raised and on perusal
of the facts obtained in the present case, we are of the
considered view that the writ petitioner ought to have
been non-suited or in other words the writ petition ought
to have been dismissed on the ground of delay and laches
itself. An applicant who approaches the court belatedly
or in other words sleeps over his rights for a
considerable period of time, wakes up from his deep
slumber ought not to be granted the extraordinary relief
by the writ courts. This Court time and again has held
that delay defeats equity. Delay or laches is one of the
factors which should be borne in mind by the High Court
while exercising discretionary powers under Article 226
of the Constitution of India. In a given case, the High

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Court may refuse to invoke its extraordinary powers if
laxity on the part of the applicant to assert his right has
allowed the cause of action to drift away and attempts
are made subsequently to rekindle the lapsed cause of
action.
11. For filing of a writ petition, there is no doubt that no
fixed period of limitation is prescribed. However, when
the extraordinary jurisdiction of the writ court is invoked,
it has to be seen as to whether within a reasonable time
same has been invoked and even submitting of memorials
would not revive the dead cause of action or resurrect the
cause of action which has had a natural death. In such
circumstances on the ground of delay and laches alone,
the appeal ought to be dismissed or the applicant ought
to be non-suited. If it is found that the writ petitioner is
guilty of delay and laches, the High Court ought to
dismiss the petition on that sole ground itself, inasmuch
as the writ courts are not to indulge in permitting such
indolent litigant to take advantage of his own wrong. It is
true that there cannot be any waiver of fundamental right
but while exercising discretionary jurisdiction under
Article 226, the High Court will have to necessarily take
into consideration the delay and laches on the part of the
applicant in approaching a writ court.
13. It is apposite to take note of the dicta laid down by
this Court in Karnataka Power Corpn. Ltd. v. K.
Thangappan [(2006) 4 SCC 322] whereunder it has been
held that the High Court may refuse to exercise
extraordinary jurisdiction if there is negligence or

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omissions on the part of the applicant to assert his right.
It has been further held thereunder:
“6. Delay or laches is one of the factors which is to be
borne in mind by the High Court when they exercise
their discretionary powers under Article 226 of the
Constitution. In an appropriate case the High Court
may refuse to invoke its extraordinary powers if there is
such negligence or omission on the part of the applicant
to assert his right as taken in conjunction with the lapse
of time and other circumstances, causes prejudice to the
opposite party. Even where fundamental right is
involved the matter is still within the discretion of the
Court as pointed out in Durga Prashad v. Controller of
Imports and Exports [(1969) 1 SCC 185]. Of course,
the discretion has to be exercised judicially and
reasonably.
7. What was stated in this regard by Sir Barnes Peacock
in Lindsay Petroleum Co. v. Prosper Armstrong Hurd
[(1874) LR 5 PC 221 : 22 WR 492] (LR PC at p. 239)
was approved by this Court in Moon Mills Ltd. v.
Industrial Court [1967 SCC OnLine SC 117 : AIR 1967
SC 1450] and Maharashtra SRTC v. Balwant Regular
Motor Service [1968 SCC OnLine SC 54 : (1969) 1
SCR 808 : AIR 1969 SC 329]. Sir Barnes had stated:
(Lindsay Petroleum case, LR pp. 239-40)
‘Now, the doctrine of laches in courts of equity is not
an arbitrary or a technical doctrine. Where it would
be practically unjust to give a remedy either because
the party has, by his conduct done that which might

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fairly be regarded as equivalent to a waiver of it, or
where by his conduct and neglect he has though
perhaps not waiving that remedy, yet put the other
party in a situation in which it would not be
reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in
every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay,
that delay of course not amounting to a bar by any
statute of limitation, the validity of that defence must
be tried upon principles substantially equitable. Two
circumstances always important in such cases are,
the length of the delay and the nature of the acts
done during the interval which might affect either
party and cause a balance of justice or injustice in
taking the one course or the other, so far as it relates
to the remedy.’
8. It would be appropriate to note certain decisions of
this Court in which this aspect has been dealt with in
relation to Article 32 of the Constitution. It is apparent
that what has been stated as regards that article would
apply, a fortiori, to Article 226. It was observed in
Rabindranath Bose v. Union of India [(1970) 1 SCC 84]
that no relief can be given to the petitioner who without
any reasonable explanation approaches this Court
under Article 32 after inordinate delay. It was stated
that though Article 32 is itself a guaranteed right, it
does not follow from this that it was the intention of the

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Constitution-makers that this Court should disregard all
principles and grant relief in petitions filed after
inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal
[(1986) 4 SCC 566] that the High Court in exercise of
its discretion does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic. If there is
inordinate delay on the part of the petitioner and such
delay is not satisfactorily explained, the High Court
may decline to intervene and grant relief in exercise of
its writ jurisdiction. It was stated that this rule is
premised on a number of factors. The High Court does
not ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and
public inconvenience and bring, in its train new
injustices, and if writ jurisdiction is exercised after
unreasonable delay, it may have the effect of inflicting
not only hardship and inconvenience but also injustice
on third parties. It was pointed out that when writ
jurisdiction is invoked, unexplained delay coupled with
the creation of third-party rights in the meantime is an
important factor which also weighs with the High Court
in deciding whether or not to exercise such jurisdiction .”
14. Reiterating the aspect of delay and laches would
disentitle the discretionary relief being granted, this
Court in Chennai Metropolitan Water Supply & Sewerage
Board v. T.T. Murali Babu [(2014) 4 SCC 108] has held:
(SCC p. 117, para 16)
“16. Thus, the doctrine of delay and laches should not

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be lightly brushed aside. A writ court is required to
weigh the explanation offered and the acceptability of
the same. The court should bear in mind that it is
exercising an extraordinary and equitable jurisdiction.
As a constitutional court it has a duty to protect the
rights of the citizens but simultaneously it is to keep
itself alive to the primary principle that when an
aggrieved person, without adequate reason,
approaches the court at his own leisure or pleasure, the
court would be under legal obligation to scrutinise
whether the lis at a belated stage should be entertained
or not. Be it noted, delay comes in the way of equity. In
certain circumstances delay and laches may not be
fatal but in most circumstances inordinate delay would
only invite disaster for the litigant who knocks at the
doors of the court. Delay reflects inactivity and
inaction on the part of a litigant — a litigant who has
forgotten the basic norms, namely, “procrastination is
the greatest thief of time” and second, law does not
permit one to sleep and rise like a phoenix. Delay does
bring in hazard and causes injury to the lis.”
14. Considering the facts and averments made in the writ
petition, we may reiterate that the appellant has assigned no
convincing or plausible reason for filing the writ petition after
inordinate delay of about 8 years, although a suit for recovery of
money has to be filed within three years from the date when the
cause of action arises. The extra-ordinary jurisdiction, under

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Article 226 of the Constitution of India, has to be exercised to
enforce the law and not to defeat the same. In other words, the
power under Article 226 of the Constitution has to be exercised
to effectuate the rule of law and not to abrogate or defeat it.
Even while acting in exercise of the said constitutional power,
the High Court cannot ignore the law nor can it override the law.
The power, under Article 226 of the Constitution of India, is
conceived to serve the ends of law and not to transgress them.
Reference in this regard be had to the judgment rendered by the
Hon’ble Apex Court in the case of Mafatlal Industries Ltd. v.
Union of India , reported in (1997) 5 SCC 536 .
15. Thus, we find that there has been unreasonable delay on
the part of the appellant in approaching the Writ Court, hence
this Court is not required to lend its aid by its extraordinary
remedy of mandamus, therefore the Writ Court has rightly
refused to exercise the extraordinary remedy under Article 226
of the Constitution of India, leaving the appellant to seek his
remedy by the ordinary mode of action, as is otherwise available
under the law.
16. Yet another aspect of the matter is as to whether a time-
barred debt can be recovered by invoking the extraordinary
jurisdiction of this Court under Article 226 of the Constitution

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of India. In this regard, we would refer to a judgment rendered
by a Constitution Bench of the Hon’ble Apex Court in the case
of Bhailal Bhai (supra), wherein it has been held- “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 Art. 226 can be measured”. Thus, the
Court may consider the delay to be 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
always be proper for the Court to hold that it is unreasonable.
17. In light of the law laid down by the Constitution Bench of
the Hon’ble Apex Court in the case of Bhailal Bhai (supra), we
are now required to appraise the present case. Admittedly, the
period of limitation prescribed for recovery of money due on a
contract is three years from the date when the payment becomes
due. In the present case, therefore the onus was on the writ
petitioner / appellant herein to show that when his dues had
otherwise become time-barred, as to why he had not approached
the Writ Court before the dues became time-barred. The writ
petition was filed after an inordinate delay of about eight years
and this delay having not been appropriately explained, we find

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that the writ petition was not maintainable on this ground alone,
inasmuch as delay in filing the writ petition is unreasonable and
moreover, the said delay is more than the period of limitation
prescribed for a civil action for the remedy, as available to the
writ petitioner / appellant. Hence, considering the law laid down
by the Constitution Bench of the Hon’ble Apex Court in the
case of Bhailal Bhai (supra), we find that the writ petition filed
by the writ petitioner / appellant, itself was not liable to be
entertained under Article 226 of the Constitution of India being
marred by the principles of delay and laches, thus the present
appeal is sans merit, accordingly the same stands dismissed.

(Mohit Kumar Shah, J)
(Sourendra Pandey, J)
Ajay/-
AFR/NAFR AFR
CAV DATE 03.08.2026
Uploading Date 30.10.2026
Transmission Date NA