Madhya Pradesh High Court
Balveer Singh Yadav vs The State Of Madhya Pradesh Thr on 2 December, 2015
1 W.P.No.6262/2015
(Balveer Singh Yadav Vs. State of M.P. & Ors.)
02/12/2015
Shri P.L.Sharma, Advocate for the petitioner.
Shri Kamal Jain, Dy. GA for the respondents No. 1
and 2/State.
Shri S.P.Jain, Advocate for respondents No. 3 and
4.
This writ petition under Article 226/227 of the
Constitution of India has been filed seeking quashment of
order dated 11/9/2015 passed by respondent No. 3
pursuant to resolution No. 54 dated 11/9/2015 of
Municipal Council, Mungawali.
Facts necessary for disposal of this writ petition are
in narrow compass.
Auction bid of the petitioner being highest was accepted and he was granted a contract for recovery/collection of halting/parking charges on the vehicles which are being parked/halted in and moving out from the area of the respondent No. 4-Municipal Council, Mungawali for the period from 1/4/2015 to 31/3/2016. An agreement was also entered on 31/3/2015 (Annexure P/1). There is no dispute that in terms and conditions of the agreement, petitioner has deposited the requisite amount with respondent No. 4 within the stipulated period.
2 W.P.No.6262/2015(Balveer Singh Yadav Vs. State of M.P. & Ors.) There is also no dispute that petitioner was entitled to collect the charges from the vehicle being parted or halted in the area of respondent No. 4 at the rate mentioned under the terms and conditions of the agreement. The agreement was also having penal clause of the nature that in violation of any terms and conditions of the agreement, the same shall be liable to be terminated/cancelled. Learned counsel for the petitioner contends that the respondent No. 3 has passed the order dated 11/9/2015 for cancellation of the contract for no justifiable reasons. It is contended that out of the total amount of Rs. 6,25,000/- petitioner has already deposited an amount of Rs. 4,28,000/-. Five months period is still left in completion of the contract. Such arbitrary and illegal termination of the contract, that to without any notice and opportunity of hearing, violates the fundamental rights of the petitioner guaranteed under Article 14 and 19 (1) (g) of the Constitution of India influenced by extraneous consideration with ill intentions.
Respondents No. 3 and 4 have filed counter affidavit and contended that there were repeated complaints against the petitioner from different quarters that he has realized higher fees for parking/halting of vehicles in area 3 W.P.No.6262/2015 (Balveer Singh Yadav Vs. State of M.P. & Ors.) of Municipal Council, Mungawali. Even the District Magistrate vide letter (Annexure R/2) dated 17/8/2015 directed respondents to enquire about the illegal act, unauthorized realization of excess amount and misdeeds committed by the petitioner. Respondent No. 3 vide letters dated 3/8/2015, 26/8/2015 and 2/9/2015 has asked the petitioner to produce the counterfoils for enquiry. However, petitioner chose not to submit the required counterfoils. So much so, a criminal case has also been registered against the petitioner at police station, Mungawali vide Crime No. 277/2015 for the offence under Sections 323, 294, 341, 506/34 of IPC for misbehaviour, beating, illegal realization of money in the name of fees from owners and drivers of the vehicles parked/halted in the area of respondent No. 4 to the extend of Rs. 100/- as against Rs. 10/- per vehicle. The aforesaid criminal case is still pending enquiry. FIR is also on record as Annexure R/5. Further as a matter of fact, prior to passing of resolution on 11/9/2015, the council resolved its meeting on 25/8/2015 for an enquiry to be contended by Chief Municipal Officer on complaints of the nature referred above. Copy of minutes of meeting held on 25/8/2015 is on record as Annexure R/6. The enquiry report is also on 4 W.P.No.6262/2015 (Balveer Singh Yadav Vs. State of M.P. & Ors.) record as Annexrue R/7. It was found that there is substantial evidence regarding incenses of realization of excessive amount. Under such circumstances, the Council in its meeting resolved vide resolution No. 54 to cancel the contract. As such the respondents have acted strictly in accordance with the terms and conditions of the agreement/contract. It is contended that in view of aforesaid facts and circumstances, no illegality has been committed. Petitioner cannot be permitted to invoke equitable jurisdiction of this Court under Article 226/227 of the Constitution of India. To bolster his submissions learned counsel for the respondents No. 3 and 4 has referred to and relied upon the judgment of Hon. Supreme Court in the matter of Kerala State Electricity Board and Anr. Vs. Kurien E. Kalathil and Ors., AIR 2000 SC 2573.
Heard learned counsel for the parties.
Facts and circumstances of the case as reiterated by the parties suggests that cancellation of the contract consequent upon the resolution of the council dated 11/9/2015 is on the basis of serious allegations though denied by the petitioner but nevertheless the entire gamut of the matter involves factual disputes. Hence, equitable 5 W.P.No.6262/2015 (Balveer Singh Yadav Vs. State of M.P. & Ors.) jurisdiction of this Court under Article 226/227 of the Constitution of India cannot be invoked for quashment of order dated 11/9/2015 based on resolution No. 54 dated 11/9/2015 as there is no dispute that council is competent to terminate the contract in terms of the agreement between the parties. Any right accrued to the petitioner under the agreement by itself shall not give rise to a cause of action to invoke writ jurisdiction of this Court as has been held by Hon. Supreme Court in the case of Kerala State Electricity Board (supra). Para 10 to 12 of the aforesaid judgment reads as under:-
"10.We find that there is a merit in the first contention of Mr. Rawal. Learned Counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract? If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226.We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. 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. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that 6 W.P.No.6262/2015 (Balveer Singh Yadav Vs. State of M.P. & Ors.) would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.
11. 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. Dispute 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 of 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, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226of the Constitution of India. 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. The contractor should have been relegated to other remedies.
12. Ordinarily, in view of aforesaid conclusions on the first contention, we would 7 W.P.No.6262/2015 (Balveer Singh Yadav Vs. State of M.P. & Ors.) have allowed the appeal and directed dismissal of the writ petition (O.P.283 OF 1995) without examining the second contention. However, despite holding that the disputes in question could not be agitated in a writ petition and thus the High Court wrongly assumed jurisdiction in the facts of the case, yet we are not inclined in the exercise of our power under Article 136of the Constitution, to dismiss the writ petition of the contractor at this stage because that is likely to result in miscarriage of justice on account of lapse of time which may now result in the foreclosure of all other remedies which could otherwise be availed of by the contractor in the ordinary course. Those remedies are not efficacious at the present stage and, therefore, in view of peculiar circumstances of the case, we have examined the second contention and the factors which weighted with the High Court in granting relief."
In view of above discussion and in the light of above decision of Hon. Apex Court, petition sans merits and is hereby dismissed.
(Rohit Arya)
jps/- Judge