Andhra HC (Pre-Telangana)
J. Siva Sankara Rao vs Prl. Secretary To Govt., Transport, ... on 22 January, 1998
Equivalent citations: 1998(2)ALD154, 1998(2)ALT293
ORDER N.Y. Hanumanthappa, J.
1. The question for consideration in this writ appeal s whether a writ can be issued in a matter which is purely contractual in nature not arising out of a statute nor depriving any fundamental right nor even a discriminatory order. This question has been answered not in one case but in a catena of decisions of both the Supreme Court and the High Courts.
2. Before answering this question, it is appropriate to narrate a few facts which gave rise to this appeal. The appellant is a contractor. The 2nd respondent herein, viz., the Chief Engineer, National Highways, Errum Manzil, Hyderabad put up for auction the annual rights to collect toll fee at Kanakadurgamma varadhi across the river Krishna for the period from 1-4-1992 to 31-3-1993. The appellant-petitioner was the highest bidder and he offered a sum of Rs.1,07,15,000/-. The same was accepted by the 2nd respondent. The Government by its order in G.O. Rt.No.278, Transport, Roads and Buildings (Roads-II-I) Department dated 23-3-1992 accepted the said recommendations of the Chief Engineer, the 2nd respondent herein. The same was confirmed by the 2nd Respondent and the right of collection of toll fee for the year 1992-93 was conferred in favour of the appellant-petitioner which was followed by entering into a contract between the parties viz., the appellant-petitioner and the State represented by the 3rd Respondent - The Executive Engineer, Roads and Buildings, National Highways Division, Guntur. While carrying on his business of collecting toll fee, there was a strike called by the All India Truck Operators from 1-7-1992 to 7-7-1992 and as a result of the said strike, no trucks passed over the said river and the appellant-petitioner was unable to collect any toll during those days. It is contended that due to non passing of any trucks for those 7 days, the appellant-petitioner had suffered unanticipated injury and therefore he is entitled to claim remission for the period from 1-7-1992 to 7-7-1992. In this connection, he made a representation to the Government on 27-7-1992. The said representation of the appellant-petitioner was rejected by the Respondent No.3 by letter dated 7-8-1992 informing that there was no condition in the lease provided for such contingency. Aggrieved by the said endorsement and refusal on the part of the respondents in not considering the petitioner's request to grant remission, he filed a writ petition before this Court in W.RNo. 10539/92. It was contended that the respondent's attitude in respect of the appellant-petitioner's request is quite incorrect. Non running of the vehicles for 7 days caused heavy loss to the appellant-petitioner. Such a stoppage of running of the vehicles was not at the instance of the appellant-petitioner but it was due to the strike called by the All India Truck Operators. Thus, the contract that was entered into between the appellant-petitioner and the State was frustrated. As such, the appellant-petitioner is entitled to claim remission under Section 56 of the Indian Contract Act.
3. The said claim of the appellant-petitioner was opposed by the respondents by filing a detailed counter. The learned single Judge of this Court after hearing both sides and also taking into consideration the effect of Section 56 of the Indian Contract Act which is extracted here under including the following decisions of the Supreme Court which the appellant-petitioner relied upon, found that there was no obligation on the part of the respondents to make good the loss which according to the appellant incurred during the period from 1-7-1992 to 7-7-1992.
"Section 56 : An agreement to do an act impossible in itself is void.
A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise."
In the order the learned single Judge also observed that there is doubt as to whether a writ petition of this type for claiming relief in a contractual dispute should at all be entertained while exercising the powers under Article 226 of the Constitution of India. However he did not wish to answer on that point any further which resulted in dismissal of the writ petition. Hence, this appeal is filed.
4. Sri M. Ramana Reddy, the learned senior Counsel appearing for the appellant submitted that the learned single Judge is not right in dismissing the writ petition on the ground that there was no frustration of contract. The reasons given for dismissing the writ petition are not valid. The learned single Judge did not take into consideration the fact that the Government is the authority which confirmed the contract and it should have passed some orders on the representation given by the petitioner to the 3rd Respondent intended to be forwarded to the Government for its appropriate orders. He also contended that during existence of contract, if the bridge itself had collapsed, the appellant-petitioner would not have entitled for reimbursement of loss. If the same analogy is applied for non plying of the vehicles on the road for 7 days, the appellant-petitioner is entitled for denial by the respondents is quite incorrect and unjust.
5. Since the claim relates to one of contract entered into between the parties, we have to see whether the same can be resolved or decided under Article 226 of the Constitution of India. Time and again it is said that in a breach of contract or failure to perform a contract not arising out of a statute or a contract which has deprived the fundamental right resulting in violation of Article 14, the writ petition does not lie. In the case of Burmah Construction Co. v. Stale of Orissa, while considering the contractual obligation when Article 226 of the Constitution of India was invoked, the Supreme Court held as follows :
"The High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Article 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. Where the petition under Article 226 is for enforcement of the liability of the collector imposed by Section 14 of the Orissa Sales Tax Act it can only be allowed subject to the restrictions which have been imposed by the proviso. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable."
6. In the case of Lekhraj v. Dy. Custodian, Bombay, rights relating to contract and scope of Article 226 of the Constitution of India to issue a writ of mandamus the Supreme Court held as follows :
"A writ of mandamus may be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge that statutory obligation. The chief function of the writ is to compel the performance of public duties prescnbed by statute and to keep the subordinate tnbunals and officers exercising public functions within the limits of their jurisdictions, any duty or obligation falling upon a public servant out of a contract entered into by him as such public servant cannot be enforced by the machinery of a writ under Article 226 of the Constitution."
In the case of Har Shankar v. Dy. Excise and Taxation Commissioner, the Supreme Court reiterated the proposition made in the case of Lekhraj (supra) holding that a writ petition is not an appropriate remedy for impeaching validity of contractual obligations. In the subsequent decision also, the Supreme Court reiterated the same principle in Sham Lal v. State of Punjab, . And held that contractual obligations cannot be avoided by lincensee. Further it is held that recourse to wnt petition is not proper.
7. Again in the case of Kukhhinder Singh v. Hardayal Singh, the Supreme Court took the similar view which is extracted hereunder :
"The remedy of Article 226 is unavailable to enforce a contract qua contract. A mere contract agreeing to a quota of promotions cannot be exalted into a service rule or statutory duty. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction. Although Article 226 is of wide amplitude to correct manifest injustice, but contractual obligations in the ordinary course, without even statutory complexion cannot be enforced by this short, though, wrong cut. Hence, a writ petition merely to enforce an agreement entered into between the employees and the Cooperative Bank about giving certain percentage of promotions to existing employees is not maintainable."
In Bihar E.G.F. Co-op. Socy. v. Sipahi Singh, making reference to the earlier decisions of the Supreme Court, it held as follows:
"A writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limits of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance."
Again in the case of United Commercial Bank v. Bank of India, the same view has been followed subsequently.
8. The appellant-petitioner has not shown that the contract entered into between himself and the 3rd Respondent arises out of any statute or there was any denial of any fundamental right or the Government extended a benefit of remission to others and in case of the petitioner the said benefit was denied.
9. In our view, the approach of the appellant-petitioner under Article 226 of the Constitution of India for the relief of remission is not appropriate. Hence it is ordered that writ does not lie in respect of contracts. The learned single Judge should have dismissed the writ petition on the question of maintainability. However while dealing with the claim the learned single Judge dismissed the writ petition holding that there was no frustration of contract. We do not propose to comment upon the finding given by the learned single Judge on this point. As far as the last request made by Sri Ramana Reddy regarding considering the representation is concerned, there should have been some representation before the learned single Judge. If any such representation was made, the learned single Judge would not have taken trouble in writing such a detailed judgment on the question of frustration of contract. At this stage, Sri M.Ramana Reddy, the learned senior advocate requested the Court to permit his client to withdraw the writ petition itself as otherwise it will come in the way of the appellant-petitioner for making a request before the Government or filing a civil suit or agitating his right before any other appropriate forum. This, the appellant-petitioner should have done in the beginning itself However, permission sought for by Sri M. Ramana Reddy is granted. The writ petition is dismissed as withdrawn with liberty to the appellant-petitioner to give a representation to the Government or to file a civil suit or to work out his remedy before any other appropriate forum. In such an event, the authorities or the Court shall consider the claim of the appellant-petitioner on merit by making use of the evidence made available, uninfluenced by the observations made by the learned single Judge. Giving representation, if any, or availing any other remedy before the appropriate forum shall be within two months from today. If such a representation is given to the Government, the Government shall dispose of the same within a period of three months thereafter as far as possible.
10. Accordingly, the writ appeal is disposed of and the writ petition is dismissed as withdrawn. No costs.