K.M. Joseph, J Appellant is the Writ Petitioner in Writ Petition No.25033 of 2013. He is a contractor engaged in transportation of sand in Palakkad district. The first respondent corporation had completed the de-silting work in Chulliyar Dam and stored the sand in and around Chulliyar Dam site. About 38,816 M3 of sand was excavated, filtered and stacked at the dam site of Chulliyar. Thereafter the Government had accorded sanction to the first respondent Corporation to sell the above said sand and the corporation entered into an agreement with the appellant dated 5.8.2013 for the purpose of sale of 19,000M3 sand. The appellant has to pay ₹6,28,900/-(agreed in Ext.P1). However, the appellant was served with Ext.P3, wherein the Corporation took the stand that appellant has not paid the amount as per the agreement and the contract stands terminated. Appellant preferred Ext.P4 against the same. According to the appellant, he also submitted Ext.P2 representation. In short, the case of the appellant is that the appellant was not furnished with the Chalan and it disabled the appellant from paying the amount as per the agreement. The appellant approached this court seeking the following reliefs : “I. To issue a writ of certiorari or any other appropriate writ or order or direction calling for the records leading to the issuance of Ext.P3 notice and quash the same.
II. To issue a writ of mandamus or any other appropriate writ or order or direction directing the first respondent to act upon Ext.P1 agreement.
III. To issue a writ of mandamus or any other appropriate writ or order or direction directing the 1st respondent to consider Ext.P4 representation and pass orders”
2. No counter affidavit is filed by the respondent. The learned Single Judge took note of the fact that the appellant had originally entered into a contract with the Corporation, under which the appellant was permitted to remove sand. He had approached this court with a Writ Petition, wherein it was his complaint that the balance amount remained to be lifted.
3. A learned Single Judge disposed of the Writ Petition by directing the Corporation to consider the matter and subsequently Ext.P1 agreement was entered into. The learned Single Judge took the view that the present cause of action is completely different. Learned Single Judge also held as follows:
“5. In the said circumstances, the respondent company is directed to float a public tender with regard to the right to remove sand showing all the particulars as to the quantity, minimum rate etc. by effecting wide publication in some leading daily having wide circulation. It is open for the petitioners herein to participate in the tender as and when notified and the same shall be finalised in accordance with law. It is made clear that the disqualification of the petitioner in WP(c). No. 25033 of 2013 with reference to non-satisfaction of the amount shown in Ext.P1 agreement shall not be a bar to the said petitioner in participating in the tender to be floated by the respondent Company as above. If at all any amount has been remitted by the petitioners pursuant to the proceedings referred to in the writ petitions, it shall be subject to the further proceedings in connection with the tender to be floated.”
Feeling aggrieved, the appellant is before us.
4. We heard learned counsel for the appellant and learned counsel for the respondent Corporation.
5. The Corporation filed a counter affidavit. In the same, it is interalia stated that Ext.R1(a) is the Government Order and it was on the basis of the same that Ext.P1 agreement was entered into. Learned counsel for the respondent would submit that Exts.P 2 and P4 were not received.
6. Learned counsel for the appellant would submit that the Chalan was not made available and only on account of the said fact the amount is not paid. He pointed out that Ext.P1 agreement is dated 5.8.2013 and he had submitted Ext.P2 on 6.6.2013. Ext.P3 was issued on 24.9.2013 and it is a case where the court should interfere. He would at any rate state that in case there is no other bidders, his bid should be directed to be accepted.
7. The Writ petition was filed by the appellant challenging Ext.P3. Ext.P3 purports to be the termination of Ext.P1 agreement. The reason for termination is non-payment as contemplated under Ext.P1 agreement. According to the appellant, he was disabled from making the payment on refusal of the Chalan.
8. We are unable to understand the reasoning of the learned Single Judge in holding that a public tender was required in this case and consequential direction being given to the company to float a tender and giving further directions. Entering into Ext.P1 agreement was not an issue in dispute. Nobody had challenged Ext.P1. The Writ Petition came to be filed on the basis of the complaint against Ext.P3. Ext.P3 was issued for alleged violation of conditions in Ext.P1. Accordingly the decision and the directions are outside the scope of the pleadings of the parties and they cannot be sustained.
9. The further question would arise as to what should be the fate of the Writ Petition ? The Writ Petition was filed challenging Ext.P3, which purports to be the termination of Ex.P1 agreement.
We would think that in the circumstances of the case, it may not be appropriate for us to interfere under Article 226 and it is an issue which has to be decided by the appropriate civil court. We leave it open to the appellant, if so advised, to approach the civil court. Accordingly the Writ appeal is disposed of as follows:
We partly allow the Writ Appeal. We set aside the direction given by the learned Single Judge to float a public tender and further directions which have been given thereunder. We instead dispose of the Writ Petition by relegating the Writ Petitioner to pursue the remedy available to him, before the competent Civil Court .
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K. M. JOSEPH, JUDGE Sou.
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A.K.JAYASANKARAN NAMBIAR, JUDGE.
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