Andhra HC (Pre-Telangana)
D.V. Mahesh vs Superintending Engineer And Anr. on 10 November, 1999
Equivalent citations: 2000(1)ALT779
Author: Goda Raghuram
Bench: Goda Raghuram
ORDER Goda Raghuram, J.
1. These two writ petitions i.e., W.P. No. 13972 of 1999 and 20762 of 1999 involve common questions of law founded on common application of legal principles and are thus heard together with the consent of the parties and disposed of by this common order.
2. Pursuant to a tender notification by the Government of Andhra Pradesh in respect of the work of formation of Reservoir across Seshugadda near Peddapalli village in Yelamanchili Mandal of Vizag District an agreement was entered into between the petitioner and the respondents No. 198-99 dt. 6-5-1998.
3. By the Tender Notice No. 1233 MM SD3 dt. 30-6-1999 issued by the Superintending Engineer, Irrigation Circle, Visakhapatnam. Tenders were called for in respect of construction of an extra work i.e., Gorge portion earth work and Revetment arrangement from 210 meters to 300 meters which part of the work was initially entrusted to the petitioner in these cases under the agreement dt. 6-5-1998 already adverted to. This proceeding is the subject matter of challenge in W.P. No. 13972 of 1999. By a later proceeding dt. 5-7-1999 contained in the letter No. III5M/DB DI dated 5-7-1999 the Executive Engineer, Irrigation Department in purported exercise of the provision of Clause 60(c) of the Preliminary Specifications to A.P. Standard Specifications withdrew the work namely "Forming earth bund and providing revetment in Gorge portion from ch 210 M to 300 M from the scope of the contract entered with the petitioner and the respondents on 6-5-1998." This communication is the subject matter of challenge in W.P. No. 28762 of 1999. Sri. V.S.R. Anjaneyulu learned Counsel for the petitioner strenuously urges that the proceedings impugned in the above writ petitions are susceptible to invalidation by Court under Article 226 inasmuch as they constitute exercise of power by a public authority administering funds. If a public authority irrespective of the instrument through which the power is exercised acts arbitrarily, unfairly or irrationally such exercise of power is amenable to the scrutiny of this Court under Article 226 is the contention. The factual parameters represented in respect of the above contention are formulated as propositions are as under.
(a) That the initial agreement dated 6-5-1998 having been approved by the Chief Engineer and entered into between the petitioner and the Superintending Engineer consequent upon a requirement in that regard by the NABARD which is funding agency, the Executive Engineer who passed the orders of withdrawal as contained in his proceedings dt. 5-7-1999 has no power to issue the orders of cancellation withdrawal of part of work.
(b) That the impugned orders of withdrawal are without consideration of the relevant factors and by eschewing the relevant factors such as not handing over of the site on the date of agreement i.e., 6-5-1998 but at a later date i.e. on 9-2-1999 that the time of one year stipulated for execution and completion of the work in the schedule of progress ought to be reckoned from the date of handing over of the site and not from the date of the agreement and the scope of the work have been changed midway necessitating extension of proportionate time consequent on change of nature of the work which is an integral component of fairness ordained on a public authority.
4. On this and other factual substrata, it is urged the order of cancellation impugned in W.P.No. 20762 of 1999 is vitiated by arbitrary exercise of power and warrants interference by this Court in judicial review. It is also urged that the tender notification for this part of the work being earlier in point of time i.e., 30-6-1999 anterior to the date of withdrawal of the work by the proceedings dt. 5-7-1999, the proceedings dt. 30-6-1999 ex facie constitute a pre-judgment of the issue and is arbitrary.
5. It is the admitted position at the Bar that arbitration agreement exists in respect of disputes between the parties under the contract dt. 6-5-1998 under Clause 73 of A.P. Standard Specifications.
6. The concept that all actions of a public authority including actions pursuant to the contractual instruments are amenable to judicial review if particular public law and constitutional parameters are satisfied is urged for acceptance by Sri V.S.R. Anjaneyulu and in support thereof, the Judgment of the Supreme Court in Style (Dress Land) v. Union Territory. Chandigarh, is relied upon in particular. The principles as set out in para 12 of the Judgment reads as under :
"This Court in Srilekha Vidyarthi (Kumari) v. State of U.P. held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rules of law, the system which governs us, arbitrariness being the negation of the rule of law. Non-arbitrainess being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power. Action of renewability should be gauged not on the nature of function but public nature of the body exercising that function and such action shall be open to judicial review even if it pertains to the contractual field. The State action which is not informed by reason cannot be protected as it would be easy for the citizen to question such an action as being aribitrary."
The broad principle as enunciated in the above decision needs to be understood consistent with the concept as enunciated by other decisions of Apex Court. In Radhakrishna Agarwal v. State of Bihar, AIR 1977 SC 1496, a three-Judge Bench of the Supreme Court laid down the principle (to the extent relevant to the facts on hand) that non-statutory post-contractual disputes between the parties where the State is one of such parties, is not amenable to judicial review and the remedy would be to recourse the general remedy by approaching to the jurisdictional Civil Court or an arbitration if there is subsisting arbitration agreement between the parties. Similar principle has been enunciated in the Asst. Excise Commissioner v. Isaac Peter, , and recently in State of U.P. v. Bridge and Roof Company (India) Limited, 1996 (6) Supreme 586. The preponderance of judicial authority ordains the principle that except threshold contractual questions involving the State as one of the parties, a non-statutory post-contractual dispute is not amenable to public law scrutiny and at any rate to a proceeding under Article 226 of the Constitution. In the above state of the binding principles of law circumscribing the discretion of this Court in relation to interference in matters such as the one urged for consideration in these cases, this Court is of the considered view that the issue urged for adjudication in these- cases which are essentially founded on dispute between the parties pursuant to a contract entered into between them vide Agreement No. 1998-99 dt. 6-54998 are not susceptible to scrutiny by this Court under Article 226. Consequently this Court declines to exercise its discretion under Article 226. There are no merits in the writ petitions which are accordingly dismissed. No order as to costs.
7. The petitioner would however be at liberty to pursue such remedies as are available to him under law in respect of the grievances urged in these writ petitions.