Court No. - 34
Case :- WRIT - C No. - 31703 of 2019 Petitioner :- M/S Vinod Kumar And Sons Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajesh Kumar Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J. Hon'ble Rajeev Misra,J.
1. Heard learned counsel for the parties and perused the record.
2. This writ petition under Article Article 226 of Constitution of India has been filed seeking a writ of mandamus directing respondent authority to make payment of bills of work done in pursuance of tender dated 11.02.2017 within stipulated period and further directing respondent no.2 to decide representation of petitioner dated 30.03.2019 (Annexure-7) regarding payment of bills of work done.
3. The question, whether for the purpose of recovery of money pursuant to contract, writ petition under Article 226 would be maintainable has been considered in Hindustan Petroleum Corporation Limited and another Vs. Dolly Das 1999 (4) SCC 450 wherein Court said that in absence of any constitutional or statutory rights being involved, a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against State or to avoid contractual liability arising thereto. In the absence of any statutory right, Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise.
4. In Kerala State Electricity Board and another Vs. Kurien E. Kalathil and others 2000 ( 6) SCC 293 , Court said that interpretation and implementation of a clause in a contract cannot be subject-matter of a writ petition. Whether a contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily remedy is not the writ petition under Article 226. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Disputes arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies have power to contract or deal with property like private parties. Such activities may not raise any issue of public law. When it is not shown that contract is statutory and parties are within the realm of their authority, contract between the parties is in the realm of private law. The disputes relating to interpretation of terms and conditions of such contract cannot be agitated in a petition under Article 226 of the Constitution. The Court further said:
"That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition."
5. Following the above authorities, a Division Bench of this Court in M/S Prabhu Construction Company through its Proprietor Vs. State of U.P. and another ( Writ C No. 25075 of 2014) decided on 05.05.2014 said as under:
"In the present case, there is nothing on the record which may persuade us to hold that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement."
6. The Court also relied on its earlier decision in M/s R.S. Associate Vs. State of U.P. and others (Writ- C No. 11544 of 2014) decided on 24.02.2014.
7. Again in Alaska Tech Vs. State of U.P. 2014 (6) ADJ 591 , a Division Bench of this Court observed as under:
"2. We are of the view that, in a matter of this nature which pertains to alleged non-payment of dues under a contract for supply of goods, it would neither be prudent nor judicious for this Court, in exercise of its jurisdiction under Article 226 of the Constitution, to grant relief, which is in substance, is a prayer for a money decree. These matters, it must be emphasized, are not those relating to statutory contracts but are purely non-statutory contracts. Whether work has been satisfactorily performed, whether the rates which had been quoted are in accordance with the terms of the contract, whether the goods were of a quality as mandated, and above all, whether the claim is within limitation or otherwise, are issues which cannot appropriately be adjudicated upon under Article 226 of the Constitution."
8. The same view has been reiterated in M/S Goyal Stationary Mart through its Proprietor State of U.P. ( Misc. Bench No. 10971 of 2015) decided on 27.11.2015, Budh Gramin Sansthan Vs. State of U.P. 2014 ( 7) ADJ 29, Kaka Advertising Agency Vs. U.P. Technical University and others 2014 (11) ADJ 227, M/s A.K. Constructions Vs. State of U.P. and others (Misc. Bench No. 1909 of 2014 ) decided on 07.03.2014, Major Travels through Proprietor Vs. State of U.P. and others (Misc. Bench No.
3472 of 2014) decided on 25.04.2014 and Uttaranchal Paper Converters and Publishers through Proprietor Vs. State of U.P. and others ( Misc. Bench No. 3898 of 2015) decided on 13.05.2014.9.
9. Following the above authorities, a Division Bench of this Court presided by one of us (Hon'ble Sudhir Agarwal, J.) has also taken same view in Writ Petition ( Writ-C) No. 42697 of 2002 (M/S Jai Goswami Electric Works Alld. Vs. Union Of India through'
D.R.M. and Others) decided on 19.05.2016.
10. In view thereof, we are clearly of the view that mandamus sought by petitioner is nothing but grant of a money decree in extraordinary equitable jurisdiction under Article 226 which cannot be granted since the remedy lies in common law by filing a suit.
11. The writ petition is, therefore, dismissed on the ground of alternative remedy.
12. In view of above, writ petition is accordingly dismissed on the ground of alternative remedy.
Order Date :- 27.9.2019 YK