V.C.Suresh v. Travancore Devaswom Board - Tdb - Kerala High Court, 30 Jan 2024

Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN & THE HONOURABLE MR. JUSTICE G. GIRISH TUESDAY, THE 30TH DAY OF JANUARY 2024 / 10TH MAGHA, 1945 WP(C) NO. 2087 OF 2024 PETITIONER:

V.C.SURESH, AGED 62 YEARS S/O BHASKARAN NAIR, MURUGA ELECTRICALS, PAROOPARAMBU BUILDING, NMC ROAD, IRUMPANAM P.O, ERNAKULAM - 682 309, RESIDING AT MADHAVAM, EROOR POST, NADAMA VILLAGE, ERNAKULAM DISTRICT, PIN - 682306

BY ADVS.T.MADHU C.R.SARADAMANI R.ANILKUMAR (KOTTAYAM) RENJISH S. MENON VRINDA T.S.

AISWARYA JAYAPAL RESPONDENTS:

1 TRAVANCORE DEVASWOM BOARD - TDB DEVASWOM HEAD QUARTERS, NANTHANCODE, KAWDIAR POST, THIRUVANANTHAPURAM DISTRICT, PIN - 695003, REPRESENTED BY ITS SECRETARY.

2 THE CHIEF ENGINEER GENERAL WORKS DEPARTMENT, TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD JUNCTION, NANDANCODE, KAWDIAR POST, THIRUVANANTHAPURAM, PIN - 695003 3 THE EXECUTIVE ENGINEER ELECTRICAL SECTION, TRAVANCORE DEVASWOM BOARD, SREENIVASA IYER ROAD, THIRUNAKKARA, KOTTAYAM, PIN - 686001 4 THE ASSISTANT ENGINEER ELECTRICAL SECTION, TRAVANCORE DEVASWOM BOARD, SREENIVASA IYER ROAD, THIRUNAKKARA, KOTTAYAM, PIN -

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686001 5 THE EXECUTIVE ENGINEER TRAVANCORE DEVASWOM BOARD, ELECTRICAL DIVISION, CHENGANNUR, MAVELIKKARA P.O., ALAPPUZHA DISTRICT, PIN - 690101

SRI G.BIJU - STANDING COUNSEL - TRAVANCORE DEVASWOM BOARD

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT Anil K. Narendran, J.

The petitioner, who is stated to be the sole proprietor of M/s.Muruga Electricals, which was awarded the work of electrification of the newly constructed toilet blocks at Erumeli Devaswom and other construction works in the Devaswoms under the management of the 1st respondent Travancore Devaswom Board, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent Board and its officials, namely respondents 2 to 5, to disburse the amounts covered by [Sic:

mentioned in] Ext.P2 lawyer notice dated 25.10.2023, as expeditiously as possible, within a time frame to be fixed by this Court. The petitioner has also sought for an order directing the respondents to pay or reimburse the GST payable in respect of the amounts covered by [Sic: mentioned in] Ext.P2.

On 18.01.2024, when this matter came up for admission, the learned counsel for the petitioner sought time to address arguments on the maintainability of the writ petition.

Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board.

The issue that requires consideration is as to whether

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the petitioner, who has been awarded with certain contract works in Erumeli Devaswom and other Devaswoms under the management of the 1st respondent Travancore Devaswom Board can invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the Board to disburse the amounts mentioned in Ext.P2 lawyer notice dated 25.10.2022.

In State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] the Apex Court reiterated that a writ petition under Article 226 of the Constitution of India is not the proper procedure for adjudicating disputes relating to the enforcement of contractual obligations. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ, but ordinarily, that would be a good ground for refusing to exercise the discretion under Article 226. It is true that many matters could be decided after referring to the contentions raised in the

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affidavits and counter-affidavits, but that would hardly be a ground for the exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of an alleged breach of contract.

Whether the alleged non-supply of road permits by the appellants would justify a breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising the prerogative of issuing writs.

In National Highways Authority of India v. Ganga Enterprises [(2003) 7 SCC 410] the Apex Court was dealing with a case in which the respondent had filed a writ petition before the High Court for refund of the amount. The High Court posed two questions, namely, (a) whether the forfeiture of the security deposit is without the authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act; and (b) whether the writ petition is maintainable in a claim arising out of breach of contract. While dealing with the said issue the Apex Court opined that it is

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settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. It has been so held in Kerala State Electricity Board v. Kurien E. Kalathil [(2000) 6 SCC 293], State of U.P. v. Bridge and Roof Company (India) Ltd. [(1996) 6 SCC 22] and Bareilly Development Authority v. Ajai Pal Singh [(1989) 2 SCC 116]. This is settled law. The dispute in the case before the Apex Court was regarding the terms of an offer. They were thus contractual disputes in respect of which a writ court was not the proper forum. The Senior Counsel for the respondent relied upon the decisions in Verigamto Naveen v. State of A.P. [(2001) 8 SCC 344] and Harminder Singh Arora v. Union of India [(1986) 3 SCC 247]. The Apex Court noticed that those are cases where the writ court was enforcing a statutory right or duty. These cases do not lay down that a writ court can interfere in a matter of contract only. Thus, on the ground of maintainability, the writ petition should have been dismissed.

In Gunwant Kaur v.

Municipal Committee, Bhatinda [(1969) 3 SCC 769] the Apex Court opined that the High Court is not deprived of its jurisdiction to entertain a petition under Article 226 of the Constitution of India merely because in considering the petitioner's right to relief questions of

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fact may fall to be determined. In a petition under Article 226, the High Court has jurisdiction to try issues both of fact and law. It is true that exercise of the jurisdiction is discretionary, but the discretion must be exercised on sound judicial principles.

When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

In ABL International Ltd. v.

Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553] the Apex Court, after referring to various judgments as well as the pronouncement in Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769] and Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar

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Municipal Council [(1970) 1 SCC 582], held that, merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the Court entertaining such a petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In Gunwant Kaur [(1969) 3 SCC 769] the Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact.

In ABL International Ltd. [(2004) 3 SCC 553] the Apex Court laid down the following legal principles;

(a) 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.

(b) merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

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While laying down the principle, the Apex Court sounded a word of caution as under in paragraph 28;

“28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has the discretion to entertain or not to entertain a writ petition.

The Court has imposed upon itself certain restrictions in the exercise of this power.

See:

Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1].

And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” 10. In State of Kerala v. M.K. Jose [(2015) 9 SCC 433] the Apex Court was dealing with a case in which the respondent had earlier challenged the order of termination of the contract before the High Court by filing in W.P.(C)No.22541 of 2013.

That writ petition ended in dismissal.

He filed W.A.No.1912 of 2013. The Division Bench, by the judgment

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dated 24.02.2014, allowed that writ appeal. The Division Bench, on the basis of the report of the Advocate Commission, came to the conclusion that the order of termination was founded on erroneous facts, inasmuch as the competent authority had opined that more than 50% of the work remained to be done.

The Division Bench opined that, as there was a factual defect, which was evident from the report of the Advocate Commission, the order of termination of the contract is liable to be quashed.

After quashing the said order, the Division Bench directed the Superintending Engineer, Public Works Department (Roads and Bridges) to consider and dispose of the matter afresh after affording the contractor an opportunity of being heard. It also directed that the Commission's report and the Engineer's report and the accounts shall be produced by the Contractor before the competent authority, who shall take the same into account before taking a final decision in the matter. The State and the official respondents took up the matter before the Apex Court.

The Apex Court, after referring to the law laid down in Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216] and Ganga Enterprises [(2003) 7 SCC 410], reiterated that a writ court should ordinarily not entertain a writ petition under Article 226 of the Constitution of India if there is a breach of contract involving

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disputed questions of fact. The High Court appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of the contract. The Apex Court observed that the procedure adopted by the High Court is quite unknown to the exercise of powers under Article 226 in a contractual matter.

11. In M.K. Jose [(2015) 9 SCC 433] the Apex Court noticed that in ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd. [(2004) 3 SCC 553] a Two-Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur v. Municipal Committee, Bhatinda [(1969) 3 SCC 769] and Century Spinning and Manufacturing Company Ltd. v. Ulhasnagar Municipal Council [(1970) 1 SCC 582] granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. The issue that had arisen in ABL International was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt, merely because something

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is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review.

12. It is well settled that, where the rights which are sought to be agitated are purely of a private character no mandamus can be claimed. Even if the relief is sought against the State or its instrumentality, the precondition for the issuance of a writ of mandamus is a public duty. In a dispute based on a purely contractual relationship, there being no public duty element, a writ of mandamus would not lie.

13. In Bareilly Development Authority v. Ajay Pal Singh [(1989) 2 SCC 116] the Apex Court noticed that, even conceding that Bareilly Development Authority has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12 of the Constitution of India, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter, the relations are no longer

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governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of Bareilly Development Authority in the said contractual field.

14. The law laid down by the Apex Court in Radhakrishna Agarwal v. State of Bihar [(1977) 3 SCC 457], Premji Bhai Parmar v. Delhi Development Authority [(1980) 2 SCC 129] and Divisional Forest Officer v.

Bishwanath Tea Company Ltd. [(1981) 3 SCC 238] is that, where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple.

15. In Bishwanath Tea Company Ltd. [(1981) 3 SCC 238] the Apex Court considered the question of maintainability of a writ petition in respect of a claim arising out of the contractual rights and obligations flowing from the terms of a lease. The Apex Court held that, it is undoubtedly true that High

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Court can entertain in its extraordinary jurisdiction a petition to issue any of the prerogative writs for any other purpose. But such writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is a denial of equality before law or equal protection of law. The Corporation can also file a writ petition for enforcement of a right under a statute. On the facts of the case on hand, the Apex Court noticed that Bishwanath Tea Company Ltd., the respondent company, was merely trying to enforce a contractual obligation. The obligation to pay royalty for timber cut and felled and removed is prescribed by the relevant regulations. The validity of regulations is not challenged. Therefore, the demand for royalty is unsupported by law. What the respondent claimed was an exception that in view of a certain term in the indenture of lease, i.e., clause 2, the appellant is not entitled to demand and collect royalty from the respondent. This is nothing but enforcement of a term of a contract of lease. Hence, the question was whether such contractual obligation can be enforced by the High Court in its writ jurisdiction. Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, if the contract is capable of being specifically performed, or the

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party may sue for damages. Such a suit would ordinarily be cognisable by the civil court. The High Court in its extraordinary jurisdiction would not entertain a petition either for specific performance of a contract or for recovering damages. A right to relief flowing from a contract has to be claimed in a civil court where a suit for specific performance of a contract or for damages could be filed.

16. The legal principles that can be culled out from the decisions referred to supra are 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, 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 competent civil court. Pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ.

17. In Joshi Technologies International Inc. v. Union of India [(2015) 7 SCC 728] the Apex Court held that there is no absolute bar to the maintainability of the writ petition even in

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contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. In paragraph 69 of the decision, the Apex Court summarised the circumstances in which the Court would not normally exercise such discretion. In paragraph 70 the Apex Court summarised different situations/ aspects relating to contracts entered into by the State/public authority with private parties. Paragraphs 69 and 70 of the said decision read thus;

“69. The position thus summarised in the aforesaid principles has to be understood in the context of the discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion:

69.1. The Court may not examine the issue unless the action has some public law character attached to it.

69.2. Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said

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mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.

69.3. If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.

69.4. Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.

70. Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under:

70.1. At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.

70.2. State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations.

70.3. Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise.

If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article

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226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.

70.4. Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.

70.5. Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.

70.6. Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.

70.7. Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.

70.8. If the contract between private party and the

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State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction.

70.9. The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary.

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70.10. Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.

70.11. The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.”

18. In the instant case, the contracts entered into between the petitioner and the 1st respondent Board are of a non-statutory character and the relationship is governed purely in terms of the contract between the parties, i.e., the tender conditions. In such situations, the contractual obligations are matters of private law and a writ under Article 226 of the Constitution of India would not lie to enforce a civil liability arising purely out of such contracts, since a pure contractual obligation in the absence of any statutory complexion would not be enforceable through a writ.

19. Viewed in the light of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner cannot invoke the writ jurisdiction of this Court under

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Article 226 of the Constitution of India, for seeking a writ of mandamus commanding the 1st respondent Travancore Devaswom Board to disburse the amounts mentioned in Ext.P2 lawyer notice dated 25.01.2023, in respect of the contract works awarded at Erumeli Devaswom and other Devaswoms under the management of the Board.

In the result, this writ petition filed by the petitioner on 16.01.2024 fails on the ground of maintainability and the same is accordingly dismissed. No order as to costs.

Sd/- ANIL K. NARENDRAN, JUDGE

Sd/- G. GIRISH, JUDGE

AV/31/1

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PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF THE REPRESENTATION DATED 26/7/2023 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT Exhibit-P2 THE TRUE COPY OF THE LAWYER NOTICE DATED 25/10/2023 ISSUED BY THE PETITIONER TO THE RESPONDENTS Exhibit-P2(a) THE POSTAL RECEIPT DATED 31/10/2023 EVIDENCING THE DISPATCH OF EXHIBIT P2 TO THE FIRST RESPONDENT Exhibit-P2(b) THE POSTAL RECEIPT DATED 31/10/2023 EVIDENCING THE DISPATCH OF EXHIBIT P2 TO THE SECOND RESPONDENT Exhibit-P2(c) THE POSTAL RECEIPT DATED 31/10/2023 EVIDENCING THE DISPATCH OF EXHIBIT P2 TO THE THIRD RESPONDENT Exhibit-P2(d) THE POSTAL RECEIPT DATED 31/10/2023 EVIDENCING THE DISPATCH OF EXHIBIT P2 TO THE FOURTH RESPONDENT Exhibit-P2(e) THE POSTAL RECEIPT DATED 31/10/2023 EVIDENCING THE DISPATCH OF EXHIBIT P2 TO THE FIFTH RESPONDENT