Back
High Court Of Madhya Pradesh
P. K. Tare, Shiv Dayal and G. P. Singh, JJ.
GANESH TRADING CO., SAUGOR - Appellant
Versus
STATE OF M.P. - Respondents
Misc. Petn. 653 Of 1971
Decided On : 04/10/1972
It is a misconception to say that obligations arising under a contract are created by the parties and not by law. Parties merely settle the terms of a contract, but the obligation to carry out the terms arises from section 37 of the Indian Contract Act, 1872. Every law operates on certain facts. Once the relevant facts come into existence, the relevant law operates upon them to create rights and obligations.
Although an obligation arising under a contract is also an obligation created by law it is ordinarily not enforced by a writ of mandamus. AIR 1966 SC 334 and AIR 1950 SC 490, AIR 1969 SC 1306, 1963 JLJ 783, 1969 JLJ 626 relied on.
The real reason why a contractual obligation is not ordinarily enforced by mandamus is not that it is not an obligation arising under law, but that a contract normally creates a private right and imposes no public duty, and a remedy by a suit for claiming damages or specific performance is open to a party. But where a contractual obligation is accompanied with public duty or public interest and where there is no other adequate alternative remedy, there is no reason why the same cannot be enforced by mandamus. (1955) I SCR 305, (1960) 2 SCR 146, AIR 1961 SC 1731 and AIR 1968 SC 718 referred to. AIR 1971 SC 128 relied on. [Paras 22, 23 and 39]
A distinction must be drawn between the jurisdiction of the High Court under Article 226 of the Constitution and the discretion involved in the exercise of that discretion.
It is altogether different that as a rule, a writ of mandamus is not issued to enforce contractual obligations and the parties are left to enforce them by means of a regular suit, because invariably the latter remedy is fully efficacious. But, where a right, though originating in a contract, is protected and regulated by statutory provisions, redress can be obtained under Article 226 of the Constitution for their violation by a statutory body. This is more so when recourse to a civil suit is not an equally officious remedy. [Para 89]
(2) Constitution of India - Art. 226 - alternative remedy - not a bar to the jurisdiction of the High Court.
Existence of another remedy does not affect, or oust, or operate as a bar to the jurisdiction of the Court to issue a writ under Article 226. The High Court has a discretion to grant relief under Article 226 of the Constitution even if there are other alternative statutory remedies. AIR 1966 SC 197 relied on.
The rule that where an alternative remedy exists, relief under Article 226 of the Constitution will be refused is not an absolute rule but is a rule in the nature of self discipline imposed upon itself by the High Court. However there are well recognised exceptions to this rule. One of them is that where the act complained of is not authorised by law, report can be bad to Article 226, even where the petitioner has an adequate alternative remedy. (1961) 2 SCR 241 relied on. [Paras 92, 91 and 89]
(3) Constitution of India - Arts. 213 & 174 (2) - power of the Governor to pass Ordinance - extent of.
An Ordinance is promulgated by the Governor in exercise of his legislative power conferred by the Constitution under Article 213. Under that Article the Governor derives that power directly from the Constitution and he is as much a legislative body as the Legislature itself. The power of legislation by Ordinance is as wide as the power of the legislature of the State. The power is available to the Governor when the Assembly is not in session. After the prorogation of the Legislature under Article 174 (2), there is no further curb on the legislative power of the Governor. AIR 1969 SC 903 and AIR 1968 Kerala 158 referred to. [Para 90]
(4) Tendu Patta (Vyapar Viniyaman) Adhiniyam 1964 (M.P.) - S. 1 - Tender Notice -Condition No. 25 - purchasers' Agreement - Cl. 2, Proviso (1) - words 'this year' -meaning of.
Per Tare, J. (Shivdayal, J. agreeing) - The phrase 'this year' relates to the initial year of the agreement namely, 1970.
Even if the rates in the tender are lower than the rates declared later on the contractor is entitled for renewal [Para 11]
Per Singh, J. - On a proper construction of the renewal clause, the Government could notify the rates for renewal for the year 1972. Where the rate in a contractor’s agreement was less than the rate mentioned in the notification, he cannot be held to be entitled to renewal for the year 1972. [Para 57]
(5) Tendu Patton ke Nirvanrtan Hetu Nyuntam Dar Nishchayan Adhyadesh, 1972 (M.P.) – Cl. 3 - object of.
Per Tare, J. - The effect of the Ordinance is that all terms inconsistent with the provisions of the Ordinance rates stand• abrogated and it is only the Ordinance rate that would prevail for the purposes of renewal of Purchasers' Agreement for the year 1972. [Para 7]
Per Singh, J. - It is not possible to real section 3 of the Ordinance as enacting, either expressly or impliedly, that all purchasers whose agreements were renewed in 1971 and who have fulfilled conditions (a), (b) and (c) of clause 25 (1) of the Tender Notice or clause 2 (1) of the Agreement and who are prepared to pay the rates fixed by the Ordinance shall be entitled to have their agreements renewed for the year 1972. [Para 65]
Per Shivdayal, J. - The true effect of the Ordinance is that any purchaser who is otherwise entitled to renewal for the year 1972 (i.e. who has complied with the other conditions provided in clause 25 (1) of the Tender Notice) shall be granted renewal if he agrees to pay the rates specified in the Table appended to the Ordinance, or the purchase rate, which ever be higher. [Para 86]
( 1 ) THIS is a petition under Article 226 of the Constitution of India by a Contractor, who took the Contract of purchase of Tendu leaves from the Government for the year 1970 under the M. P. Tendu Patta (Vvapar Viniyaman) Adhiniyam, 1964, and the M. P. Tendu Patta, Nivamavali, 1965 and 1966, and by this petition, he seeks a renewal of the contract for the Years 1971 and 1972 on the same terms.
( 2 ) A State monopoly was created by enactment of the M. P. Tendu Patta (Vvapar viniyaman) Adhiniym, 1964, which received the assent of the President on 23-111964 and which came into force from 28-11-1964. It will be necessary o consider some relevant provisions of the Act later on. The appellant Firm had purchased the right of collection of Tendu leaves for the year 1970 which provided for a renewal clause for a further period of two years on certain terms. It may be relevant to reproduce Condition No. 25 of the Tender Notice which is as follows:-
"25. (1) Unless earlier determined under the terms of the Agreement, there will be yearly renewal of Agreement by 31st October each year by issue of an order by Government in writing. Maximum period for renewal will be up to 31st December, 1972, provided the accepted rate offered for the unit for 1970 season year is more than the rate to be decided by the Government for each circle and Government satisfied that Purchaser has fulfilled the following conditions each year and has submitted the application for renewal before the 15th September :-- (a) The purchaser has done satisfactory pruning in the previous year as a result of which the quantity of leaves collected during the year has exceeded by 5 per cent or moreover the quantity notified and also 5 per cent or more the quantity collected in the unit during the preceding year. (b) There was no serious breach of the Act and Rules made thereunder and the Agreement. (c) The purchaser had paid all dues including penalty fine etc. , promptly and in accordance with the provisions of the agreement. (2) (i) The application for renewal will be submitted to the Conservator of Forests. Tendu Patta Circle. M. P. Bhopal and copies of the same will be submitted to the Conservator of Forests in whose jurisdiction the unit is situated in the form as appended to 'this notice. The form can be obtained from any of the Divisional Forest Officers, on payment of Rs. 25/- for each form. (ii) There shall be separate application for each unit. (3) Purchase rate Per standard bag applicable for every renewed year shall be the rate calculated by increasing the purchase rate applicable to the preceding year by 5 per cent and adding to it the total increase in rates of all the following items during the renewed year as compared to rate fixed for the same items in the preceding year:-- (i) purchase rate parable to growers (subject to the limit of Rs. Twenty per standard bag, (ii) remuneration parable to Agent. (iii) handling charges payable to Agent. (4) The Purchaser who has submitted an application for the renewal of the Purchaser's Agreement for the unit shall be bound by his offer and by the terms and conditions of the Agreement till orders of the government accepting or rejecting his offer are passed. Breach of this condition shall entail forfeiture of security deposit and Government may also blacklist the purchaser for a period not exceeding 3 years. In addition the purchaser who has withdrawn his offer shall bear the loss, if any suffered by the Government in the subsequent disposal of that unit and this loss, unless paid within 15 days from the date of issue of notice of demand, shall be recoverable from him as arrears of land revenue. For calculation of loss, the following formula will be used:-Amount of loss (in Rs.) -- (The rate, offered this year by the purchaser increased by 5 per cent Purchaser rate obtained in subsequent disposal)X Number of standard bags notified for that unit. (5) The purchaser shall execute the fresh Agreement within 15 days f
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
