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M/S APEX CONSTRUCTION COMPANY THRU' ITS PARTNER SRI JAGDISH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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M/S Apex Construction Company Thru' Its Partner Sri Jagdish v. State Of U.P. And Others - WRIT - C No. 20898 of 2006 [2006] RD-AH 7846 (18 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 34

Civil Misc. Writ Petition No. 20898 of 2006

M/s. Apex Construction Company & Anr.

Vs.

State of U.P. & Ors.,

********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This writ petition has been filed for disbursing the amount under a non-statutory contract. The Supreme Court has time and again examined this issue and observed that a writ petition does not lie for recovery of an amount under a contract and even though a Statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions but disputes arising out of the terms of such contracts have to be settled by the ordinary principles of law of contract and the fact that one of the parties to the agreement is a statutory or public body does not affect the principles to be applied. It has also been emphasised that such a contract is not a statutory contract and the disputes relating to interpretation of the terms and conditions of such a contract cannot be agitated in a writ petition under Article 226 of the Constitution. Thus, whether any amount is due or not and refusal to pay it is justified or not are not matters which can be agitated and decided in a writ petition.

In this connection reference may be made to the decision of the Supreme Court in Kerala State Electricity Board & Anr. Vs. Kurien E. Kalathil & Ors., (2000) 6 SCC 293, wherein it was observed :-

"We find that there is a merit in the first contention of Mr. Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.

A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition." (emphasis supplied)

In State of Jammu & Kashmir Vs. Ghulam Mohd. Dar & Anr., AIR 2004 SC 510, the Supreme Court observed :-

"Furthermore, the respondent herein filed the aforementioned writ petition for enforcing a contract qua contract. Although an objection has been taken as regards the maintainability of the writ petition by the appellant herein, the same unfortunately has not been considered by the High Court. It is well settled that writ of or in the nature of mandamus would not ordinarily issue for enforcing the terms and conditions of a contract qua contract. A writ of mandamus would issue when a question involving public law character arises for consideration."

In view of the aforesaid decisions, it is not possible for us to issue the directions as prayed for while exercising powers under Article 226 of the Constitution.

Thus in view of the above, the writ petition is dismissed. It is made clear that we have not examined the merits of the case. However, if the petitioners are so advised, they may approach the appropriate Forum for the relief claimed in this petition.

Dt:- 18.4.2006

NSC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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