Patna High Court
Patna Hums Pipes Manufacturing Company vs State Of Bihar And Ors. on 15 May, 1992
Equivalent citations: 1993(1)BLJR600
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this writ application the petitioner has prayed for issuance of a writ of or in the nature of mandamus directing the respondents to make payment of the alleged admitted amount of dues for supplies made by the petitioner by following the Purchase Preference Rules framed by the State Government.
2. The fact of the matter lies in a very narrow compass.
3. The petitioner is the owner of a registered Small Scale Industry.
The Superintending Engineer Tube-Well Circle, Patna by reason of a letter dated 8-8-1979 as contained in Annexure-1 to the writ application sanctioned and revised the estimate and approved the construction of eight underground channels under Division Bihta. The Superintending Engineer had directed the Executive Engineer for obtaining supply of Hume Pipes from the petitioner at the rate of Rs. 135 per piece wherefor an agreement dated 15-6-1979 has been executed by and between the petitioner and the State of Bihar.
4. According to the petitioner, pursuant to the aforementioned agreement, he supplied Hum Pipes on all the sites and submitted a bill for payment thereof and out of the same 75% of the amount had been paid to the petitioner.
5. The case of the petitioner is that despite several representation/ reminders to the various authorities and despite the fact that recommendations for payment of the balance amount by the concerned respondent had been made the bills of the petitioner have not yet been settled.
6. Mr. Pawan Kumar, the learned Counsel appearing on behalf of the petitioner drew our attention to the fact that from a perusal of A.anexure-4 to writ application, it would appear that payment has not been paid to the petitioner for want of fund.
7. The learned Counsel submitted that in view of the policy decision of the State of Bihar as contained in the purchase Preference Rules being Industrial Resolution No. 19806, dated 22nd October, 1975, it would appear that direction have been given by the State of Bihar for purchase of the goods from the goods from the small scale industries and payment of price of the goods so supplied has been directed to be made in time.
8. Mr. Pawan Kumar has drawn my attention to Clause 11 of the said rules which is contained in Annexure-12 to the writ application.
9. From a perusal of the aforementioned clause, it appears that at least 75% bills submitted by the small scale industry in respect of goods supplied by them have been recommended to be made within a period of 30 days.
10. The Learned Counsel, when questioned as to whether this Court can issue a direction in the nature of mandamus for giving effect to a money claim, the learned Counsel submitted that this Court in appropriate cases may issue suitable direction to the respondents to dispose of its representation so that the policy decision adopted by the State can be given effect to.
11. The learned Counsel in support of the aforementioned contention has relied upon M/s. Dwarkadas Marfatia and sons v. Board of Trustees of the Port of Bombay, , Mahavir Auto Stores v. Indian Oil Corporation .
12. In our opinion, however, a pure money claim cannot be enforced by issuance of a writ/Direction of or in the nature of madamus.
This court while exercising its writ jurisdiction cannot usurp the function of a civil court by giving such reliefs to the petitioner which would be in the nature of a Money Decree.
A writ of mandamus can only be issued where the petitioner has any existing legal light and the respondent have a corresponding statutory obligation to perform.
13. The Supreme Court of India in Radhakrishna Agarwal and Ors. v. State of Bihar and Ors. categorised there following clauses of contract entered into by and between a person which may be enforced by the State:
(i) where a petitioner makes a grievance of breach of promise 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 sort of a contract within the meaning of Article 229 of the Constitution;
(ii) where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and
(iii) where the contract entred into between the State and the person aggrieved is non-staturory and purely contractual and the rights and liabilities of the parties are governed by terms of the contract and the petitioner complains about breach of such contract by the State.
14. The Supreme Court held that a case not falling within any of the atorementioned three types of cases the writ petition will not be maintainable.
15. A full Bench of this Court recently in M/s. Pancham Singh v. The State of Bihar and Ors. 1991 (1) PUR 352 upon noticing various decisions of the Supreme Court including Kumari Shrilekha Vidyarathi case (supra) held that apart from the thrice types of cases which may arise out of contract as has been held by the Supreme Court in Radha Krishan Agarwal (supra) there may a fourth type of case arising out of a contractual matter which would also be amenable to the writ jurisdiction viz. :
Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual but such contract has been cancelled on a ground de hors any of the terms of the contract and which is per se violative of Article 14 of the Constitution.
16. The case of the petitioner neither falls within the three type of cases mentioned in Radha Krishna Agarwal's case (supra) nor does it come within the purview of fourth type of case mentioned in Pancham Singh's case (supra).
17. In the facts and circumstances of the case, in this case the question of enforcing the policy decision also does not arise, inasmuch as admittedly the petitioner have already been paid 75% of the bills in terms of the Preferential Purchase Rules.
However, it may be noted that the said Preferential Rules do not have any statutory force. The contract entered into by and between the State and the Small Scale Industries purported to be in terms of the said Preferential Purchase Rules does not and cannot make the contract a statutory one.
18. This aspect of the matter has recently been considered by a Division Bench in M/s. BASF India Limited being CWJC No. 3753 of 1991 disposed of on 2nd of April, 1992. The said decision is binding on this Court.
19. In Dwarkadas Marfatia and Sons v. Bombay Port Trust , the Supreme Court was concerned with the right of the trustees of the Port of Bombay Establishment under the Major Port Trusts Act to evict a tenant and in that situation it was held that the action of the statutory authority would be subject to judicial review, as the court may see that such statutory body has followed the statutory purposes and acted in public interest and not mala fide, or arbitrary or for collateral purposes. In that case, itself, it has been held :
Our attention was drawn to the observations of this Court in Radha Krishna Agarwal v. State of Bihar. Reliance was also placed on the observations of this Court in Life Insurance Corporation of India v. Excorts Ltd. in support of the contention that the public corporations dealing with tenants is a contractual dealing and it is not a matter for public law domain and is not subject to judicial review. However, it is not the correct position. The Excorts decision reiterated that every action of the State or as instrumentality of the State, must be informed by reason, indisputedly, the respondent is an organ of the State under Article 12 of the Constitution. In appropriate cases, as was observed in the last mentioned decisions, actions uniformed by reasons may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. But it has to be remembered that Article 14 cannot be constured as a charter for judicial review of State action, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions.
The contractual privileges are made immune from the protection of the Rent Act for the respondent because of the public position occupied by the respondent authority. Hence, its actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason not whimsically for any ulterior purpose. Where any special right or privilege is granted to any public or statutory body on the presumption that it must act in certain manner, such bodies must make goods such presumption while acting by virtue of such privileges. Judicial review to oversee if such bodies are so acting is permissible. (Underlining is mine)
20. In Dwarkadas Marfatia and Sons case (supra), thus the Supreme Court, has reiterated the view that the State cannot be called upon to account for its action in its manifold activities which in my opinion, includes its obligations, under a contract quo contract.
21. Further in this case as noticed hereinbefore even the petitioners themselves have admitted that their bills have not been paid by the State only due to want of fund.
22. Non-payment of a bill for the goods supplied for want of fund, cannot be held to be an arbitrary action inasmuch as, in such an event, the petitioner would be entitled to interest at the rate contractual rate and/or in terms of provisions of the various statutes including Sale of Goods Act, Interest Act to which the petitioner may be found entitled to.
23. For the reasons aforementioned, in our opinion, the remedy of the petitioner does not lie before this Court in its writ jurisdiction but by filing a suit before an appropriate civil court or by taking recourse to such other remedy as may be available to them under the contract.
24. This application is, therefore, devoid of any merit and thus is dismissed.
I.P. Singh, J.
25. I agree.