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IN THE HIGH COURT OF ALLAHABAD
SURYA PRAKASH KESARWANI, YOGENDRA KUMAR SRIVASTAVA, JJ.
M/s Badri Narayan Shukla Associates – Appellant
Versus
State Of U.P. And 4 Others – Respondents
Writ C.No. 13291 of 2020
Decided on : 15-12-2020
Constitution of India, 1950 – Article 226 – Certiorari – Writ petition has been filed praying for the reliefs issue a writ, order or direction in the nature of certiorari to call for record of the case and to quash the order passed by the respondent no.5 by which the payment of his earlier work has been denied on false ground that the payment has already been made (annexure no.1 to the writ petition). – Issue a writ, order or direction in the nature of certiorari to call for record of the case and to quash the order passed by the respondent no.5 by which the contract of the petitioner has been cancelled (annexure no.2 to the writ petition). – Issue a writ, order or direction in the nature of mandamus directing the respondent no.5 to pay the rest amount of the work done by the petitioner immediately. – Issue a writ, order or direction in the nature of mandamus directing the respondents to not to take any coercive action against the petitioner. – Issue any other and further suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case –
Finding of the Court:
It may be held that in a case where the contract entered into between the State and the person aggrieved is of a non-statutory character and the relationship is governed purely in terms of a contract between the parties, in such situations the contractual obligations are matters of private law and a writ would not lie to enforce a civil liability arising purely out of a contract. The proper remedy in such cases would be to file a civil suit for claiming damages, injunctions or specific performance or such appropriate reliefs in a civil court. – Pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ. – Remedy under Article 226 of the Constitution being an extraordinary remedy, it is not intended to be used for the purpose of declaring private rights of the parties. – In the case of enforcement of contractual rights and liabilities the normal remedy of filing a civil suit being available to the aggrieved party, this Court would not exercise its prerogative writ jurisdiction to enforce such contractual obligations. – The only exception may be a case where the amount is admitted and there is no disputed question of fact requiring adjudication of detailed evidence and interpretation of the terms of the contract. – In the case at hand, the reliefs sought, as per the case set up by the petitioner, would require adjudication of serious factual disputes relating to the terms of the contract in respect of the prescribed standards of work and the time schedule for its completion. – There is also serious dispute with regard to the extent of the work completed and the payments which are due. – The pleadings and the material which are on record do not in any manner indicate that it is a public law remedy which the petitioner is seeking to invoke so as to pursuade us to exercise our discretionary jurisdiction. – Court is not inclined to exercise our extraordinary jurisdiction under Article 226 of the Constitution. –
Result: Writ Petition Dismissed
JUDGMENT :
Yogendra Kumar Srivastava, J.
1. Heard Sri Vikrant Pandey, learned counsel for the petitioner and learned Standing Counsel appearing for the State respondents.
2. The present writ petition has been filed praying for the following reliefs :
(ii) Issue a writ, order or direction in the nature of certiorari to call for record of the case and to quash the order dated 11.2.2020 passed by the respondent no.5 by which the contract of the petitioner has been cancelled (annexure no.2 to the writ petition).
(iii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.5 to pay the rest amount of the work done by the petitioner immediately.
(iv) Issue a writ, order or direction in the nature of mandamus directing the respondents to not to take any coercive action against the petitioner.
(v) Issue any other and further suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the circumstances of the case.
(vi) To award of the cost of petition in favour of the petitioner.”
3. The writ petition primarily seeks to raise a challenge to an order dated 11.2.2020 passed by respondent no.5 whereunder, the tender of the petitioner was rejected for the reason that at the time of inspection, the work was found to be not in accordance with the prescribed norms and despite repeated directions, neither the shortcomings pointed out were rectified nor was the work completed. The petitioner has also sought to challenge the subsequent order dated 19.2.2020 of the respondent no.5 in terms of which the contract awarded to the petitioner has been cancelled. A further prayer has been made raising a claim for payment of a balance amount stated to be due to the petitioner in respect of the completed work.
4. The aforementioned reliefs which have been sought in the present writ petition indicate that the petitioner seeks to enforce certain contractual rights and obligations for which the appropriate remedy is to approach the civil court or to initiate proceedings for arbitration, and a writ petition in such matters is, ordinarily, not to be entertained. It is not the case of the petitioner that the contract in question was of a statutory nature; rather it has been clearly admitted that the contract was a commercial contract.
5. As per the case set up in the writ petition, the respondent no.4 had invited tenders for a civil work and the petitioner being the lowest bidder, was declared successful and awarded the contract. The pleadings in the writ petition and the documents which have been appended as annexures indicate that there arose serious dispute with regard to the fact that the work was not as per the prescribed standards and that it was not completed within the scheduled time. There is also a serious dispute with regard to the amount due and payable to the petitioner in respect of the work which is stated to have been completed. The petitioner claims to have submitted representations from time to time claiming payment in respect of the work completed. On the other hand, the respondents have issued notices to the petitioner requiring him to complete the work as per the prescribed standards and within the scheduled time.
6. The law with regard to the maintainability of a writ petition in contractual matters is fairly well settled, and it has been consistently held that although there is no absolute bar to the maintainability of a writ petition in such matters, the discretionary jurisdiction under Article 226 of the Constitution of India, may be refused in case of money claims arising out of purely contractual obligations where there are serious disputed questions of fact with regard to the
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