Chattisgarh High Court
M/S A To Z Suppliers vs State Of Chhattisgarh on 13 June, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
WPC No.2370/2022
-1-
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION (CIVIL) NO. 2370 OF 2022
M/s A to Z Suppliers, through: its Proprietor - Ganesh Tiwari, S/o
Jagannath Tiwari, aged about 32 years, R/o Sakin Amapara, Kanker (CG)
... Petitioner
versus
1. State of Chhattisgarh, through: the Secretary, Department of School
Education, Mahanadi Bhawan, Mantralaya, Nawa Raipur, Atal Nagar,
District Raipur (C.G.)
2. District Education Officer, Kanker (C.G.)
3. Director, Directorate of Public Education Department, Raipur,
District Raipur (C.G.)
4. Collector, Kanker, District Kanker (C.G.)
... Respondents
________________________________________________________________ For Petitioner : Mr. Shakti Raj Sinha, Advocate.
For Respondents : Mr. Devesh Verma, Govt. Advocate. ___________________________________________________________ Hon'ble Shri Justice P. Sam Koshy Order on Board [13/06/2022]
1. The present Writ Petition has been filed by the Petitioner seeking for release of payment of goods supplied by the Petitioner to various Government Schools, amounting to Rs.92,46,312.
2. Perusal of the record would show that the demand for supply of the sport equipments was made by the Department on 16.2.2012 and the supplies of the same were also made in the same year i.e. on September, 2012. The present Writ Petition has been filed by the Petitioner only on 8.5.2022, i.e., after about 10 years.
3. This Court finds the claim of the Petitioner to be highly and inordinately belated. The only reason given by the Petitioner for the said delay is the so called criminal prosecution against the concerned District Education Officer as also the Petitioner then. However, considering the fact that the demand was made in the year 2012 and the supplies were also made in the same year itself, nothing prevented the Petitioner from WPC No.2370/2022 -2- approaching the Department for making the payment promptly. If the Petitioner has not availed the said remedy for more than a decade for whatsoever be the reason, the Petitioner now cannot be permitted to revive their claim by filing a Writ Petition after 10 years.
4. So far as the delay and laches are concerned, the law in this regard is by now well settled by a series of decisions of the Hon'ble Supreme Court. The question of delay and laches came to be considered recently by the Hon'ble Supreme Court in case of "State of Uttaranchal and Another Vs. Shiv Charan Singh Bhandari and Others" [2013 (12) SCC 179] in which the Supreme Court has declined to exercise extraordinary jurisdiction in case the petitioner invokes jurisdiction of the Court with inordinate delay, and held as under :
"In State of T.N. v. Seshachalam, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: -
"...filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant."
5. In the case of "P. S. Sadasivaswamy Vs. State of Tamil Nadu" [1975 (1) SCC 152], it has been held as under:-
"It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine.WPC No.2370/2022 -3-
Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
6. Very recently in the matter of "Chennai Metropolitan Water Supply and Sewerage Board & Others Vs. T.T. Murali Babu" [2014 (4) SCC 108], the Hon'ble Supreme Court has clearly held that the delay may have impact on others' ripened rights and may unnecessarily drag others into litigation, and expressed their opinion as under :
"16. Thus, the doctrine of delay and laches should not 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 scrutinize 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 doesbring in hazard and causes injury to the lis."
7. In a case where Single Bench had dismissed the Writ Petition on the ground of maintainability, the Division Bench affirming the same in Para-12 to 14 have held as under:-
12. As far as the contention of the appellant on the basis of ABL International Limited (supra) is concerned, the Supreme Court in Godavari Sugar Mills Ltd. v. State of Maharashtra (2011) 2 SCC 439, after a consideration of the entire case law on the subject including Suganmal (supra), U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. (2001) 2 SCC 549 and ABL International Ltd. supra, has made the legal position as to the maintainability of the writ petition clear as under:-WPC No.2370/2022 -4-
(i) Normally, a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers;
(ii) 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 declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law;
(iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the Civil Court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of powers conferred under Article 226 for payment of money;
(iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. While a petition praying for mere issue of writ of mandamus to the State to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the tax collected was without authority of law and therefore the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition;
(v) It is one thing to say that the High Court has no power under Article 226 to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For WPC No.2370/2022 -5- instance, where the facts are not in dispute, where the collection of money was without authority of law, there is no good reason to deny a relief of refund to the citizens;
(vi) Where the lis has a public law character or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy will not be denied.
13. Applying the aforesaid principles also, the writ petition from which this appeal arises, making grievance of the respondent having illegally deducted monies claiming the same to be due under an agreement with the appellant, out of the dues of the appellant and claiming the relief of refund thereof is not maintainable. Reference in this regard may also be made to the judgments of the Division Benches of this Court in Steel Authority of India Ltd. Vs. Punjab & Sind Bank MANU/DE/6261/2012 and in Chakradar Auto Udyog Pvt. Ltd Vs. Engineering Export Promotion Council MANU/DE/4248/2012 and the judgment of one of us (Rajiv Sahai Endlaw, J) in KLA India Public Ltd Export Credit Guarantee Corporation of India Ltd 183 (2011) DLT 591.
14. We therefore do not find any error in the reasoning given by the learned Single Judge qua maintainability of the writ petition on this ground."
8. We may note that the law in this regard as developed through a catena of judgments is that in pure contractual matters the extra ordinary remedy of a writ under Article 226 of the Constitution of India cannot be invoked, and such remedies are available in a limited sphere only when the contracting party is able to demonstrate that the remedy it seeks to invoke is a public law remedy, in contradistinction to a private law remedy under a contract.
9. The legal position in this regard is that where the rights which are sought to be agitated are purely of a private character no mandamus can be claimed, and even if the relief is sought against the State or any of its instrumentality the precondition for the issuance of a writ of mandamus is a public duty. In a dispute based on a pure contractual relationship there being no public duty element, a mandamus would not lie. WPC No.2370/2022 -6-
10. Considering the maintainability of a writ petition under Article 226 in the context of a dispute relating to terms of a private contract where a mandamus was sought seeking to restrain authorities from making any deduction from bills in terms of the contract, it was held by the High Court of Allahabad in State of U.P. & Others Vs. Bridge & Roof Co. (India) Ltd., that proper course would be to refer the matter to arbitration or institution of a suit and not filing of a writ petition. It was observed thus :-
"15. In our opinion, the very remedy adopted by the respondent is misconceived. It is not entitled to any relief in these proceedings,i.e,in the writ petition filed by it. The High Court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiterating the effect of the order of the Deputy Commissioner made under the proviso to section 8- D (1)."
11. For deciding the question of maintainability of the Writ Petition under Article 226 for enforcement of a contractual right it is the pros and cons of fact-situation that should be carefully weighed. The determination of the question as to when a claim can be enforced in writ jurisdiction would depend on consideration of several factors like, whether the writ petitioner is merely attempting to enforce his contractual rights or the case raises important questions of law and constitutional issues, the nature of dispute raised; the nature of enquiry necessary for determination of the dispute etc. Article 226 of the Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of the fundamental rights or for any other purpose. It is wide and expansive. The Constitution does not place any fetter on exercise of the extraordinary jurisdiction. It is left to the discretion of the High Court. Therefore, it cannot be laid down as a general proposition of law that in no case the High Court can entertain a writ petition under Article 226 of the Constitution to enforce a claim under a life insurance policy. It is neither possible nor proper to enumerate exhaustively the circumstances in which such a claim can or cannot be enforced by filing a writ petition. The determination of the question depends on consideration of several factors WPC No.2370/2022 -7- like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues, the nature of the dispute raised; the nature of inquiry necessary for determination of the dispute etc. The matter is to be considered in the facts and circumstances of each case.
While the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution cannot be denied altogether, courts must bear in mind the self-imposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed questions of facts. The position is also well settled that if the contract entered between the parties provide an alternate forum for resolution of disputes arising from the contract, then the parties should approach the forum agreed by them and the High Court in writ jurisdiction should not permit them to bypass the agreed forum of dispute resolution. At the cost of repetition it may be stated that in the above discussions we have only indicated some of the circumstances in which the High Court have declined to entertain petitions filed under Article 226 of the Constitution for enforcement of contractual rights and obligation; the discussions are not intended to be exhaustive."
12. The aforementioned legal position with regard to the question of maintainability of a writ petition seeking enforcement of contractual and commercial obligations has been considered in detail in a recent judgement rendered by the High Court of Allahabad in M/s Ipjacket Technology India Private Limited Vs. M.D. Uttar Pradesh Rajkiya Nirman Nigam Limited, decided on 8.5.2019.
13. The general principles which may be culled out from the aforementioned judgments is that in a case where the contract entered into between the State and the person aggrieved is of a non-statutory character and the relationship is governed purely in terms of a contract between the parties, in such situations the contractual obligations are matters of private law and a writ would not lie to enforce a civil liability arising purely out of a contract. The proper remedy in such cases would be to file a civil suit for claiming damages, injunctions or specific WPC No.2370/2022 -8- performance or such appropriate reliefs in a civil court. Pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ.
14. The remedy under Article 226 of the Constitution being an extraordinary remedy, it is not intended to be used for the purpose of declaring private rights of the parties. In the case of enforcement of contractual rights and liabilities the normal remedy of filing a civil suit being available to the aggrieved party, this Court may not exercise its prerogative writ jurisdiction to enforce such contractual obligations.
15. Given the aforesaid legal position as it stands and the facts and circumstances of the case, the present Writ Petition deserves to be and is accordingly dismissed only on the ground of delay and laches and also on the ground of maintainability. The reluctance of this Court to entertain the present Writ Petition would not preclude the Petitioner from availing other appropriate remedies available to them, if any.
16. Writ Petition accordingly stands dismissed.
Sd/-
(P. Sam Koshy)
/sharad/ Judge