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2014 Supreme(Pat) 499
IN THE HIGH COURT OF JUDICATURE AT PATNA
I.A.Ansari, Samarendra Pratap Singh, JJ.
Md. Nizamuddin, Advocate -Appellant
Versus
The State of Bihar. - Respondents
Letters Patent Appeal No.2 of 2014 In Civil Writ Jurisdiction Case No. 4270 of 2006
Decided on : 15-05-2014
For the Appellant:Mr. Nawal Kishore Singh, with Mr. Binay Kumar & Mr. Manoj Madhav, Advocates
For the Respondent/s: Mr. Lalit Kishore, PAAG &Mr. Ajay Behari Sinha, S.C.-19 with
Mr. Suryakant Kumar, A.C. to S.C.-19
Writ petition is maintainable to enforce contractual obligations of the State or its instrumentality. However, merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. A writ petition involving a consequential relief of monetary claim is also maintainable. When the State or its instrumentality acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted. Consequently, therefore, even in the case of contractual obligations, if the action of the State does not withstand the tests of Article 14, the constitutional remedy of Article 226 would be available to the aggrieved person. Conversely speaking, no writ under Article 226 will lie for mere enforcement of contractual obligations of the State unless State’s action is shown to be against public good and public interest or unfair or unjust, unreasonable, arbitrary or discriminatory or in denial of guarantee of equality enshrined under Article 226.
Headnote:
Writ petition is maintainable to enforce contractual obligations of the State or its instrumentality. However, merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. A writ petition involving a consequential relief of monetary claim is also maintainable. When the State or its instrumentality acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted. Consequently, therefore, even in the case of contractual obligations, if the action of the State does not withstand the tests of Article 14, the constitutional remedy of Article 226 would be available to the aggrieved person. Conversely speaking, no writ under Article 226 will lie for mere enforcement of contractual obligations of the State unless State’s action is shown to be against public good and public interest or unfair or unjust, unreasonable, arbitrary or discriminatory or in denial of guarantee of equality enshrined under Article 226.
Fact of the Case:
The appellant, as petitioner, in CWJC No.4270 of 2006, was appointed, on 23.08.1996, as a Government Pleader for the Civil Court, at Patna, and conducted cases, on behalf of the State Government, in the civil courts accordingly. When the bills, which the petitioner-appellant had raised and submitted, for payment, to the Collector, Patna, were turned down by the respondents, the appellant came to this Court, as a petitioner, with an application, made under Article 226 of the Constitution of India, seeking issuance of appropriate writ or writs commanding the respondents to pay the admitted dues/fees of the petitioner-appellant for the work, which the petitioner-appellant had done, in his capacity as the then Government Pleader, Civil Court, Patna.
Finding of the Court:
The court held that the writ petition is maintainable to enforce contractual obligations of the State or its instrumentality. However, merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. A writ petition involving a consequential relief of monetary claim is also maintainable. When the State or its instrumentality acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted. Consequently, therefore, even in the case of contractual obligations, if the action of the State does not withstand the tests of Article 14, the constitutional remedy of Article 226 would be available to the aggrieved person. Conversely speaking, no writ under Article 226 will lie for mere enforcement of contractual obligations of the State unless State’s action is shown to be against public good and public interest or unfair or unjust, unreasonable, arbitrary or discriminatory or in denial of guarantee of equality enshrined under Article 226.
Issues: 1. Whether a writ petition is maintainable to enforce contractual obligations of the State or its instrumentality? 2. Whether a writ petition involving a consequential relief of monetary claim is maintainable? 3. Whether the State or its instrumentality acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted?
Ratio Decidendi: 1. In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. 2. Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. 3. A writ petition involving a consequential relief of monetary claim is also maintainable. 4. When the State or its instrumentality acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted.
Final Decision: The court held that the writ petition is maintainable to enforce contractual obligations of the State or its instrumentality. However, merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. A writ petition involving a consequential relief of monetary claim is also maintainable. When the State or its instrumentality acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted. Consequently, therefore, even in the case of contractual obligations, if the action of the State does not withstand the tests of Article 14, the constitutional remedy of Article 226 would be available to the aggrieved person. Conversely speaking, no writ under Article 226 will lie for mere enforcement of contractual obligations of the State unless State’s action is shown to be against public good and public interest or unfair or unjust, unreasonable, arbitrary or discriminatory or in denial of guarantee of equality enshrined under Article 226.
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
1. This Letters Patent Appeal has arisen out of the judgment and order, dated 11.09.2013, passed in C.W.J.C.No.4270 of 2006, whereby the writ petitioner-appellant’s application, made under Article 226 of the Constitution of India, seeking issuance of appropriate writ or writs commanding the respondents to pay the admitted dues/fees of the petitioner-appellant for the work, which the petitioner-appellant had done, in his capacity as the then Government Pleader, Civil Court, Patna, stands rejected.
2. We have heard Mr. Nawal Kishore Singh, learned counsel for the appellant, and Mr. Lalit Kishore, learned Principal Additional Advocate General, appearing for the State.
3. The facts, which have given rise to the present appeal, may, in brief, be set out as under:
(i) The appellant herein, as petitioner, in CWJC No.4270 of 2006, was appointed, on 23.08.1996, as a Government Pleader for the Civil Court, Patna, and conducted cases, on behalf of the State Government, in the civil courts accordingly. When the bills, which the petitioner-appellant had raised and submitted, for payment, to the Collector, Patna, were turned down by the respondents, the appellant came to this Court, as a petitioner, with an application, made under Article 226 of the Constitution of India, seeking, as already indicated above, issuance of writ or writs commanding the respondents to make payment of the appellant’s dues/fees.
(ii) The respondents opposed the writ petition. While, however, opposing the writ petition, it was not the case of the respondents that the appellant had not discharged his duties and performed his functions as the Government Pleader in the cases, wherein bills were raised by the appellant. The dispute was, in fact, confined to the question as to what would be the basis for payment of the fees of a Government Pleader at Patna.
(iii)It has been the contention of the appellant that he ought to be paid his fees in terms of the provisions of Rule 426 of the Civil Court Rules of the High Court of Judicature (hereinafter referred to as “the Rules”); whereas the respondents’ contention has been that the payment to the Government Pleader depends on the conditions of appointment of an Advocate, as a Government Pleader, read with the fees, which a Government Pleader is entitled to receive in terms of Rule 118 embodied in the Bihar Practice and Procedure Manual, 1958.
(iv) As the learned single Judge could not bring the parties concerned to a reconciliation, it was observed in the order, dated 11.09.2013, aforementioned, that since there was a dispute as to what rates would govern the claim of the fees of a Government Pleader, the dispute raised by the writ petitioner involved disputed questions of fact, which required taking of evidence, both oral as well as documentary, and, hence, it would be civil court of competent jurisdiction, which can declare the law applicable to the case and adjudicate upon the disputed questions. With the grounds, as indicated hereinbefore, the writ petition has been dismissed on 11.09.2013. Aggrieved by the dismissal of his writ petition, the petitioner is, in appeal, before us, as the appellant.
4. Resisting the writ petition, at the very threshold, Mr. Lalit Kishore, learned Principal Additional Advocate General, has submitted that this appeal is misconceived inasmuch as the exercise of power by a High Court, under Article 226 of the Constitution of India, is discretionary in nature and if a single Judge declines to exercise jurisdiction under Article 226 of the Constitution on the ground that the writ petition involves disputed question of facts, a letters patent appeal may not, ordinarily, be entertained inasmuch a writ appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior court; such an appeal is, rather, an intra-court appeal and, in such an appeal, a Division Bench would not interfere with an order of si
