M.K. ARAVINDA BABU v. Travancore Devaswom Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 28[TH] DAY OF SEPTEMBER 2021 / 6TH ASWINA, 1943** **W.P.(C).NO.18084 OF 2021** ## **PETITIONER:** **M.K.ARAVINDA BABU, AGED 71 YEARS S/O.KARUNAKARAN CONTRACTOR, RESIDING AT ASWATHY, SANTHI NAGAR, ALUVA, ERNAKULAM DISTRICT 683 101** **BY ADVS.S.SREEKUMAR (KOLLAM) K.VIJAYAN V.BEENA PRIYA SHANAVAS** ## **RESPONDENTS:** - **1 THE TRAVANCORE DEVASWOM BOARD REP.BY ITS COMMISSIONER, DEVASWAM COMMISSIONER'S OFFICE, THIRUVANANTHAPURAM 695 001** - **2 THE EXECUTIVE ENGINEER OFFICE OF THE EXECUTIVE ENGINEER, TRAVANCORE DEVASWAM BOARD, KOTTAYAM 686 605** - **3 THE CHIEF ENGINEER (GENERAL) TRAVANCORE DEVASWAM BOARD, NANDANCODE, THIRUVANANTHAPURAM 695 001** **BY ADV SHRI.G.BIJU, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).NO.18084 OF 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is an A Class Contractor undertaking works awarded by the Public Works Department, Kerala. The petitioner had undertaken two works under Travancore Devaswom Board, namely, (i) earth cutting work in Paattupurakavu Devaswom in Paravur Group and (ii) construction of retaining wall in Paattupurakavu Devaswom, on the strength of Ext.P1 selection notice No. GL-126/A/11-12 dated 21.05.2013 and Ext.P2 selection notice No. GL315/A/12-13 dated 21.05.2013. The petitioner completed the work in June, 2013 and he has also been disbursed with the bill amount. According to the petitioner, he received payment only for 300 cubic meter earth removal, though the work involved 676.75 cubic meter earth removal. Therefore, he is entitled for the balance amount of Rs.2,10,000/-. The petitioner submitted Ext.P3 representation dated 09.11.2020 before the 3[rd] respondent Chief Engineer (General), Travancore Devaswom Board, and thereafter filed this writ petition before this Court, invoking the extra-ordinary jurisdiction under W.P.(C).NO.18084 OF 2021 3 Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 2[nd] respondent-the Executive Engineer and the 3[rd] respondent-Chief Engineer (General) to encash his work bill, in the light of Exts.P1 and P2, within a time frame to be fixed by this Court. Petitioner has also sought for a writ of mandamus commanding the 2[nd] respondent to consider Ext.P3 representation dated 09.01.2020, within a time frame; and a writ of mandamus commanding the respondents to pay 12% interest for the pending arrears of bill, till disbursement of the entire bill amount. 2. On 06.09.2021, when this writ petition came up for admission the learned Standing Counsel for Travancore Devaswom Board pointed out that the claim made by the petitioner is barred by limitation. 3. Heard the learned counsel for the petitioner and also the learned Standing Counsel for Travancore Devaswom Board. 4. The petitioner was awarded with two works on the strength of Exts.P1 and P2 selection notices. The petitioner completed the work in June, 2013. He was also disbursed with W.P.(C).NO.18084 OF 2021 4 the bill amount. Nearly 7 years after the execution of the said works, the petitioner submitted Ext.P3 representation dated 09.11.2020 before the 3[rd] respondent Chief Engineer (General), claiming an amount of Rs.2,10,000/-, by contending that he received payment only for 300 cubic meter earth removal, whereas the work involved 676.75 cubic meter earth removal. 5. The learned Standing Counsel for Travancore Devaswom Board would submit that the petitioner completed the work in June, 2013 and he has also been disbursed with the bill amount. It is nearly 7 years after the execution of the work that the petitioner has raised a claim for an amount of Rs.2,10,000/-, alleging that the works involved 676.75 cubic meter earth removal. The said claim is barred by limitation. Moreover, this Court under Article 226 of the Constitution of India cannot adjudicate such a disputed question of fact. 6. In **State of Bihar v. Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** the Apex Court held that a writ petition under Article 226 is not the proper proceedings for adjudicating disputes i n respect of enforcement of contractual W.P.(C).NO.18084 OF 2021 5 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 to invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the High Court to issue writ, but ordinarily that would be a good ground in 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 affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. On the facts of the case on hand, the Apex Court observed that, whether the alleged non-supply of road permits by the appellants would justify 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 W.P.(C).NO.18084 OF 2021 6 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 prerogative of issuing writs. 7. In **National Highways Authority of India v. Ganga Enterprises [(2003) 7 SCC 410]** the Apex Court reiterated that, in contractual disputes writ court is not the proper forum. Thus on the ground of maintainability the petition should have been dismissed. In the said decision, the Apex Court was dealing with a case in which the respondent therein had filed a writ petition before the High Court for refund of security deposit. The High Court posed two questions, namely, (a) whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act, 1872; 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 settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. It has W.P.(C).NO.18084 OF 2021 7 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. On the facts of the case on hand, the Apex Court noticed that, the dispute was regarding the terms of offer. They were thus contractual disputes in respect of which a writ court was not the proper forum. 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 was dealing with cases where the writ court was enforcing a statutory right or duty. These decisions do not lay down that a writ court can interfere in a matter of contract only. 8. In **State of Kerala v. M.K. Jose [(2015) 9 SCC 433]** , after referring to the law laid down in **Jain Plastics and Chemicals Ltd. [(2002) 1 SCC 216]** and **Ganga Enterprises [(2003) 7 SCC 410]** , the Apex Court reiterated that a writ court should ordinarily not entertain a writ petition under Article 226 of the Constitution of India, if there is a W.P.(C).NO.18084 OF 2021 8 breach of contract involving disputed questions of fact. 9. 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 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 W.P.(C).NO.18084 OF 2021 9 on record from which it is clearly evincible, the writ court may exercise the power of judicial review. 10. In **M.K. Jose [(2015) 9 SCC 433]** the Apex Court was dealing with a case in which the High Court has appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent, and quashed the order of termination of contract. The Apex Court observed that, the procedure adopted by the High Court is quite unknown to exercise of powers under Article 226 in a contractual matter. 11. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that, the adjudication of the claim made by the petitioner that he is entitled to payment of an amount of Rs.2,10,000/- on the ground that the works in question involved 676.75 cubic meter earth removal, instead of 300 cubic meter for which payment was received in the year 2013, involves adjudication of disputed question of fact in a contractual dispute, which is legally impermissible in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. W.P.(C).NO.18084 OF 2021 10 Moreover, the claim made by the petitioner is barred by limitation. Such stale claims cannot be the basis for a writ of mandamus under Article 226 of the Constitution of India. 12. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC** **145]** , a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. 13. In **Oriental Bank of Commerce v. Sunder Lal Jain [(2008) 2 SCC 280]** the Apex Court held that in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated W.P.(C).NO.18084 OF 2021 11 in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. 14. In **State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. 15. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC** W.P.(C).NO.18084 OF 2021 12 **259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the Court direct an authority to act in contravention of the statutory provisions. The Courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. 16. In view of the law laid down in the decisions referred to supra, conclusion is irresistible that the petitioner is not entitled to any of the reliefs sought for in this writ petition. In the result, this writ petition fails and the same is accordingly dismissed. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **K. BABU, JUDGE** AS W.P.(C).NO.18084 OF 2021 13 ## **APPENDIX OF WP(C) 18084/2021** **PETITIONER'S EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE SELECTION NOTICE NO.GL-126/A/11-12** **Exhibit P2 THE TRUE COPY OF THE SELECTION NOTICE NO.GL-315/A/12-13 DATED 21.5.2013** **Exhibit P3 THE TRUE COPY OF THE SUBMISSION DATED 9.1.2020 PRODUCED BEFORE THE 3RD RESPONDENT.** **Exhibit P4 THE TRUE COPY OF THE LEGAL NOTICE DATED 10.12.2020**