The High Court has undoubted jurisdiction to entertain the writ petition though the writ petition sought for the enforcement of contractual obligation, that there is a vital distinction between total absence of jurisdiction and refusal by the Court to exercise the jurisdiction, that a misconceived writ petition for misconceived reliefs does not affect the jurisdiction of the Court to deal with it in an appropriate manner and that there is no legal bar-either constitutional or statutory which prevents this Court from making reference of a dispute for arbitration in any legal proceeding including the writ petition.

Headnote:
ARBITRATION - CONSENT - GOVERNMENT PLEADER - IMPLIED AUTHORITY - CONCESSION - INTERESTS OF THE STATE - REVIEW - JURISDICTION - WRIT PETITION - CONTRACTUAL OBLIGATION - JURISDICTION OF THE HIGH COURT - COMPROMISE - SETTLEMENT - ADVOCATE'S AUTHORITY - LIMITATION - PUBLIC POLICY - GOVERNMENT COUNSEL - WRIT PROCEEDINGS RULES - RULE 24 - C. P. C. - ORDER XXIII RULE 3 - SECTION 141 - ARTICLE 226 - ARTICLE 299 - SECTION 8 - SECTION 96(3).
Fact of the Case:

The respondent-firm was awarded a contract by the Superintending Engineer, Y. R. P. Circle, Visakhapatnam (3rd appellant herein) for the excavation of Yeleru left main canal between specified kilometres. The agreement in this regard was executed on 16-4-1987. It is the case of the respondent-writ petitioner that while the excavation work was in progress, he was encountered with hard rock which required blasting. In view of the objections from the villagers, controlled blasting had to be resorted to under the instructions of the concerned engineers. Extra payment over and above the agreement was made only for a quantity of 15 200 cmt. in respect of which a supplemental agreement was also entered into on 24-3-1989 but the Department failed to make payment at the extra rate for the balance work said to have been done by the respondent-writ petitioner. Contending that the action of the concerned authorities in not making the payment at the extra rate applicable for controlled blasting was arbitrary and amounts to breach of promise on the part of the appellants herein, the respondent filed W. P. No. 18280/89 in this court. In the writ petition, the relief sought for was "to direct respondents to make the payment of extra expenditure incurred by the petitioner in connection with control blasting after excluding Rs. 48/- per cmt. covered by the agreement and after taking proper measurements of the work done by the petitioner and to pass such other order as this Hon ble Court may deem fit and proper in the circumstances of the case."
Finding of the Court:

1. The High Court has undoubted jurisdiction to entertain the writ petition though the writ petition sought for the enforcement of contractual obligation, that there is a vital distinction between total absence of jurisdiction and refusal by the Court to exercise the jurisdiction, that a misconceived writ petition for misconceived reliefs does not affect the jurisdiction of the Court to deal with it in an appropriate manner and that there is no legal bar-either constitutional or statutory which prevents this Court from making reference of a dispute for arbitration in any legal proceeding including the writ petition. 2. An advocate has implied authority to compromise the litigation and it includes the anthority for reference of the dispute in Court to arbitration. The learned Counsel submits that an express authority to settle or compromise is not necessary and it does not make any difference even if the client is Government or public authority and Article 299 of the Constitution does not at all come in the way of giving such a consent. 3. If the learned single Judge was satisfied that an agreement had been arrived at by both the Counsel with regard to the resolution of the dispute on hand and such agreement was neither unlawful nor opposed to the interests of their clients, there is nothing in law which precludes the learned Judge from granting relief in terms of the agreement arrived at by the Counsel acting within the scope of their implied authority. This is what has exactly happened in this case. 4. There is nothing in Art. 299 of the Constitution which affects the well-recognised power and authority of the Counsel to agree to settlement or compromise of litigation so as to bind his client. Art. 299 has nothing to do with a compromise or connection in a pending legal proceedings by a counsel acting on behalf of his client. 5. For the purpose of exercising the implied authority which a legal practitioner has, to compromise or concede a point at issue, it does not make any difference in principle whether be is a counsel appearing for a private party or the Government. It is true that a Government Counsel does not file a vakalath as contemplated by Order iii Rule 4 CPC, but merely enters appearance on behalf of the Government or its officials. But that does not in any way curtail his powers as a legal practitioner and restrict his implied and inherent authority as a counsel. 6. The Government Pleader had not transgressed the well-recognised limitations on the implied authority of an advocate to concede or compromise.
Issues: None
Ratio Decidendi: 1. The High Court has undoubted jurisdiction to entertain the writ petition though the writ petition sought for the enforcement of contractual obligation, that there is a vital distinction between total absence of jurisdiction and refusal by the Court to exercise the jurisdiction, that a misconceived writ petition for misconceived reliefs does not affect the jurisdiction of the Court to deal with it in an appropriate manner and that there is no legal bar-either constitutional or statutory which prevents this Court from making reference of a dispute for arbitration in any legal proceeding including the writ petition. 2. An advocate has implied authority to compromise the litigation and it includes the anthority for reference of the dispute in Court to arbitration. The learned Counsel submits that an express authority to settle or compromise is not necessary and it does not make any difference even if the client is Government or public authority and Article 299 of the Constitution does not at all come in the way of giving such a consent. 3. If the learned single Judge was satisfied that an agreement had been arrived at by both the Counsel with regard to the resolution of the dispute on hand and such agreement was neither unlawful nor opposed to the interests of their clients, there is nothing in law which precludes the learned Judge from granting relief in terms of the agreement arrived at by the Counsel acting within the scope of their implied authority. This is what has exactly happened in this case. 4. There is nothing in Art. 299 of the Constitution which affects the well-recognised power and authority of the Counsel to agree to settlement or compromise of litigation so as to bind his client. Art. 299 has nothing to do with a compromise or connection in a pending legal proceedings by a counsel acting on behalf of his client. 5. For the purpose of exercising the implied authority which a legal practitioner has, to compromise or concede a point at issue, it does not make any difference in principle whether be is a counsel appearing for a private party or the Government. It is true that a Government Counsel does not file a vakalath as contemplated by Order iii Rule 4 CPC, but merely enters appearance on behalf of the Government or its officials. But that does not in any way curtail his powers as a legal practitioner and restrict his implied and inherent authority as a counsel. 6. The Government Pleader had not transgressed the well-recognised limitations on the implied authority of an advocate to concede or compromise.
Final Decision: Accordingly, we dismiss both the writ appeals. There will be no order as to costs Advocate's fee. Rs. 250/- in each.

P. VENKATARAMA REDDY, J.

( 1 ) AN apparently innocuous order passed in a writ petition directing reference of the dispute to arbitration based upon the consent of the Counsel has given rise to these Writ Appeals.

( 2 ) THE relevant facts are these: The respondent-firm was awarded a contract by the Superintending Engineer, Y. R. P. Circle, Visakhapatnam (3rd appellant herein) for the excavation of Yeleru left main canal between specified kilometres. The agreement in this regard was executed on 16-4-1987. It is the case of the respondent-writ petitioner that while the excavation work was in progress, he was encountered with hard rock which required blasting. In view of the objections from the villagers, controlled blasting had to be resorted to under the instructions of the concerned engineers. Extra payment over and above the agreement was made only for a quantity of 15 200 cmt. in respect of which a supplemental agreement was also entered into on 24-3-1989 but the Department failed to make payment at the extra rate for the balance work said to have been done by the respondent-writ petitioner. Contending that the action of the concerned authorities in not making the payment at the extra rate applicable for controlled blasting was arbitrary and amounts to breach of promise on the part of the appellants herein, the respondent filed W. P. No. 18280/89 in this court. In the writ petition, the relief sought for was "to direct respondents to make the payment of extra expenditure incurred by the petitioner in connection with control blasting after excluding Rs. 48/- per cmt. covered by the agreement and after taking proper measurements of the work done by the petitioner and to pass such other order as this Hon ble Court may deem fit and proper in the circumstances of the case. "

( 3 ) IN the counter filed by the appellants herein, the claim of the writ petitioner was resisted. In the counter an objection was taken to the very maintainability of the writ petition on the ground that the matter relates to a contract and the writ petitioner has a remedy by way of arbitration. With regard to merits, the claim of the writ petitioner that he carried out controlled blasting over and above the quantities for which payment was made, was denied. It was stated that in order to avoid objections from the villagers, the contractor was asked to carry out controlled blasting only in relation to an identified stretch for which payment had been arranged to him as per the supplemental agreement referred to above. The appellants therefore denied their liability to pay any extra amount.

( 4 ) THE writ petition came up for hearing befoe the learned single judge, M. N. Rao, J. on 29-12-1989. in the course of hearing, the learned counsel for the writ petitioner and the learned Government Pleader appearing for the respondents represented that the matter may be referred to arbitration by a retired Judge of this Court. The learned Judge therefore passed the following order on 23-2-1990:"both sides agree that the matter may be referred to the arbitration of Sri Justice P. Rama Rao, a retired Judge of this Court. For ascertaining the views of Sri Justice P. Rama Rao whether he is agreeable to arbitrate in the matter, call on Monday (26-2-1990 ). " when the writ petition came up for hearing on 26-2-1990, the learned single judge passed the following order: "the learned counsel for both sides represented that Sri Justice p. Rama Rao has agreed to act as arbitrator. In the circumstances, the matter under dispute is referred to arbitrator Justice Sri P. Rama rao who shall enter upon his duties and pass award after notice to both sides, in accordance with the provisions of the Arbitration Act. The writ petition is closed. No costs. . "thus, there was no decision on merits, but an order was passed on the basis of the consent given by both sides and the dispute raised in the writ petition was referred to an arbitrator agreed upon by both the Counsel.

( 5 ) CHALLENGING thi

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1991 Supreme(AP) 144

Cases Referred (2)