Messrs Rameshwar Pd. Sawar Lal v. State of Bihar — 1987 DIGILAW 340 (PAT)

JUDGMENT M.P. Varma, J. The petitioner has invoked the writ jurisdiction of this Court, making a prayer to issue mandamus and to direct the respondent nos. 2 to 5 to be responsive to the cause of the petitioner in making payment of the legal dues for the services rendered by him to the Public Works Department at Hazaribagh Circle. 2. The petitioner took up the work as allotted to him under an agreement no. 11 F 2 of 1963-64 relating to bring improvement to Ramgarh Bhurkunda Patratu Road. On completion of the work the, concerned officials in the Public Works Department made proper checking thereof and on final calculation respondent no. 4, the Superintending Engineer sanctioned the amount of Rs. 7,32,000/- of the bill submitted vide memo no. 978 dated 28.2.1971. As per the Rule of Business, in the Public Works Department, the payment should have been made normally within a month from the date of the sanction order. But after the grant of the sanction, the officials instead of taking up the follow-up action in discharging their liability in making payment, slept over the file and did not make payment till today. 3. The Standing Counsel no. 4 Sri R.N. Prasad on the first date of hearing of the application sought for an adjournment to find out why the claim of the petitioner has not been paid for so long a period of sixteen years. The learned Standing Counsel was vocal in his submission that if the malady was in the Concerned Department and the officials were defaulters then the petitioner must be compensated and payment be made with interest, otherwise the application is fit to be dismissed. However, he further added that if so advised, he may file counter-affidavit as well. Long adjournment was granted with a direction that the respondents would examine the claim of, the petitioner and it was further observed that if it was found that outstanding dues were there, to which the petitioner is entitled to get payment, necessary steps be taken by the respondents to payoff all the dues. It again came up for hearing on 27.10.1987. Again the Standing Counsel made a prayer for adjournment. It was submitted that respondent no. It again came up for hearing on 27.10.1987. Again the Standing Counsel made a prayer for adjournment. It was submitted that respondent no. 5, the Executive Engineer could not bring all the connected papers relating to the claim of the petitioner and therefore, a prayer was made to grant further adjournment to examine the claim and to file counter affidavit. Further hearing was taken up on 3.11.1987. The Advocate General personally appeared on behalf of all the respondents, properly assisted by the Standing Counsel no. IV. It will be pertinent to note that no counter affidavit was filed on behalf of the respondents. I may further state here that even in the course of argument, the claim of the petitioner was not denied. Learned Advocate General, however, citing decisions of the Supreme Court in the case of M/s Radha Krishna Agrawal and others v. The State of Bihar and others ( AIR 1977 S.C. 1496 ) and also of this Court in the case B.K. Sinha v. State of Bihar and others (A.I.R. 1974 Patna 230) made short argument stating that the claim of the petitioner arise out of a contractual held on account of breach and violation of the terms and conditions of the contract between the petitioner and the respondents and not does not attract the application of Article 14 of the constitution of India and the writ application is therefore not maintainable. It has also been argued that apart from the fact that the petitioner should avail of an alternative remedy, the dues being of past sixteen years and the application under Articles 226 and 227 of the Constitution of India must be defeated on the ground of delay. 4. Having heard the Counsel for the petitioner and also the Advocate General for the respondents, 1 find that the petitioner is not seeking for issuance of any direction against the respondents for fulfilment of any contractual obligation. It is not the case of the petitioner that there has been any breach or violation of any contract. The agreement of course; was there between the parties. The petitioner was asked to perform and render services as per agreement. The work was completed to the satisfaction of the respondents. There is no denial of this. It has been argued on behalf of the petitioner that under Article 298 of the Constitution of India the Executive power of the Govt. The petitioner was asked to perform and render services as per agreement. The work was completed to the satisfaction of the respondents. There is no denial of this. It has been argued on behalf of the petitioner that under Article 298 of the Constitution of India the Executive power of the Govt. officials can reasonably be exercised to an extent it does not contravene any law and at the same time, even in dealing with the trade and business, Article 14 of the Constitution imposes an obligation upon State's executive powers to be exercised under Article 298 of the Constitution. It is not the case of the petitioner that he was not allowed to perform his part of the contract. There was no let or hinderence at any stage. The petitioner is therefore, not seeking any relief for remedy of any breach of contract on behalf of the respondents and that the two case laws cited on behalf of the respondents have got no application to the instant case. 5. The learned Advocate for the petitioner has further submitted that the petitioner is here before the writ court to arouse the respondents from their deep slumber and to make them alive of their moral duties to make payments of the legal dues for the services rendered by the petitioner. It has also been urged, and very rightly, that the claim is not in dispute. The bill has been accepted. The amount for payment has been sanctioned and thereafter it does not behave well for any wing of the Department of the Government to adopt the role of a litigant and by neglecting their part of the duties in making payment. 6. In the circumstances of the case, I feel that is not open for Government officials to invite persons to render services in the lure of making timely payment enter into agreement, and when the work is done and completed, to turn a deaf ear taking up indifferent attitude and thereby refuse to make payment and ask the claimant to avail of an alternative remedy and to fight out litigation for years to come, keeping his money blocked without any sustainable cause, rhyme or reason. The long delay of sixteen years spent in deep slumber of the officials does not defeat the case of the petitioner, when the amount payable is admitted by way of grant of sanction. The long delay of sixteen years spent in deep slumber of the officials does not defeat the case of the petitioner, when the amount payable is admitted by way of grant of sanction. It is a case of hardship. The petitioner has suffered a great loss in his day-to-day business. At one stage, Counsel for the petitioner stated that had the amount been kept in fixed deposit, it would have been re-doubled by now or had grown even more by earning interest at the minimum rate of 10 percent. The conduct of the respondents appears to be quite reprehensible in detaining the payment for so long a period and at this stage alternative remedy cannot be deemed to be an efficacious remedy. To avail of an alternative remedy, as contended by the learned Advocate General would only mean putting premium to the negligent and irresponsible conduct of the respondents in not making payment for so long a period of sixteen years and naturally, it smacks mala fide too or that the action of the Respondents is motivated. 7. In the conditions referred to above, the prayer is allowed, and I feet no hesitation in issuing mandamus and directing the respondents to be alive of their duties and obligation and to make payments of the sanctioned amount of the dues referred to, above. I therefore, do not pass any order for payment of cost and considering that it involves revenue of the State, I direct and call upon the respondents to make payment of the aforesaid dues with interest only at the rate of (six) 6 percent per annum, payable from one month after the date when the amount was finally sanctioned and the respondents 2 to 3 will exercise their good offices and will take steps to examine all other formalities and will see that payment is finally made, as per direction of this Court within a period of a month and a half from the date of receipt of this order. With the direction aforesaid, the application is allowed. S.H.S. Abidi, J. - I respectfully disagree & my judgment follows vide separate sheets. S.H.S. Abidi, J. - The petitioner has come to this court under Article 226 of the Constitution of India for a writ of mandamus for the payment of Rs. With the direction aforesaid, the application is allowed. S.H.S. Abidi, J. - I respectfully disagree & my judgment follows vide separate sheets. S.H.S. Abidi, J. - The petitioner has come to this court under Article 226 of the Constitution of India for a writ of mandamus for the payment of Rs. 7,32,000/- which according to the petitioner has already been sanctioned by the Superintending Engineer of the Public Works Department, Hazaribagh Circle vide item no. 5 and 6 and memo no. 978 dated 28.2.71 with interest thereon from the date of sanction till the date of payment. 10. According to the petitioner there was an agreement between the P.W.D. and the petitioner for which the petitioner was asked to work for the improvement of Ramgarh -Bhurkunda-Patratu Road from 0' mile up to 8 K.M. and the amount was sanctioned by the Superintending Engineer as per memo No. 978 dated 28.2.71. The said amount should have been paid normally within a month but that has not been paid till the date of filing of this petition inspite of several direct contacts and requests made with the various authorities. 11. This petition was filed on 22.9.87 and this Court by order dated 25.9.87 directed for the issuance of notice to respondents 2 to 5 under registered cover with A/D making it returnable by the 27th October 1987. The learned Standing Counsel appeared Oil 27.10.87 and raised his contentions but no counter affidavit was filed and the case was ordered to be listed on the 3rd of November 1987 when the learned Advocate General also appeared for the respondents. 12. It was contended by the learned Advocate General that this application under Article 226 of the Constitution is not maintainable as it was for the enforcement of the contractual right and further-the petitioner approached this Court after more than 16 years of its alleged claim said to have been sanctioned by the P.W.D. on 20.2.71. The contentions of the learned Advocate General appears to be correct that there was a contract for the repair work as alleged by the petitioner and that the amount has been sanctioned in the year 1971 and the petitioner has come to this Court in 1987. An application under Article 226 of the Constitution is only for the enforcement of statutory duties and not for the enforcement of violation of the contracts. An application under Article 226 of the Constitution is only for the enforcement of statutory duties and not for the enforcement of violation of the contracts. In the case of B.K. Sinha v. State of Bihar and others (A.I.R. 1974 Patna 230) it was observed : "As observed by the Supreme Court in C.K. Achutan v. State of Kerala ( AIR 1959 SC 490 ) in paragraph 8 at page 492, there is hardly any difference in that regard between the breach committed by a private party and the breach of contract brought about by the Governmental authorities. It is neither possible in law nor expedient that every breach of contract committed by the Governmental authorities should be remedied by issue of a writ of mandamus. If it were to be so, then in every case of breach of contract entered with various Departments of the Governments concerned a petitioner would be entitled to an order from this Court which will have the force of a decree or specific performance of contract which otherwise such a petitioner would not be entitled from a Civil Court. I am, therefore, definitely of the view that until and unless in the breach is involved violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by this court in exercise of its powers under Article 226 of the Constitution". 13. The Supreme Court in the case of Radhakrishna Agarwal and others v. State of Bihar and others (A.I.R. 1977 S.C. 1496) has observed at page 1500 : “"But, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed .by the constitutional provisions but by the legally valid contract which determines rights and, obligations of the parties inter se. No question arises of violation of Art, 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. No question arises of violation of Art, 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract.” Later at page 1501 it was held : "It then very rightly, held that the cases now before us should be placed in the third category where questions of pure alleged breaches of contract are involved. It held upon the strength of Umakant Saran v. State of Bihar, AIR 1973 SC 964 and Lekhraj Sathram Das v. N.M. Shah, AIR 1966 SC 334 and B.K. Sinha v. State of Bihar, AIR 1974 Pat 230 that no writ or order can issue under Art. 226 of the Constitution in such cases” to compel the authorities to remedy a breach of contract pure and simple". It is further said in this very case; "The submission made before us is that whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of a contract between the parties, there is a dealing between the State and the citizen which involves performance of "certain legal and public duties". If we were to accept this very wide proposition every case of a breach of contract by the State or its agents or its officers would call for interference under Art. 226 of the Constitution. We do not consider this to be a sound proposition at all" 14. Thus in the present case, though there appears to be a contract, but there is no violation of any constitutional right or any statutory duty by the respondents. A writ cannot lie for the enforcement of contractual obligations or payments of amount thereunder. 15. As regards the delay the sanction is said to be of the year 1971 and the petitioner has come to this Court in 1987 after about more than sixteen years. What the petitioner has said about the delay and efforts in claiming the amount, is only several direct contacts and requests made with the various authorities. 15. As regards the delay the sanction is said to be of the year 1971 and the petitioner has come to this Court in 1987 after about more than sixteen years. What the petitioner has said about the delay and efforts in claiming the amount, is only several direct contacts and requests made with the various authorities. No details have been given out so as to be considered as to how the period of more than sixteen years has elapsed. The person aggrieved coming to the court is expected to come with clean hands and there should be no latches on his part. No writ lies if negligence and omission to assert the right has taken place in conjunction with lapse of time. In the case of P.S. Sadasivaswamy v. State of Tamil Nadu ( 1975 (1) SCC 152 ) at page 154 it was observed :- "Be that as it may if the appellant was aggrieved by it he should have approached the court even in the year 1957, after the two representations made by him had failed to produce any result. One cannot sleep over the matter and come to the court questioning that relaxation in the year 1971............It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of person who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward state claims and try to unsettle settled matters." 16. In the case of State of Orissa v. Phainmohan Samantaray and others ( 1977 (3) SCC 396 ) the Supreme Court observed :- "The fact therefore remains that the petitioner allowed some 11 years to go by before making a petition for the redress of his grievance...............The High Court therefore erred in rejecting the argument that the writ petition should be dismissed because of the inordinate and unexplained delay even though it was "strenuously" urged for its consideration on behalf of the Government of India". 17. 17. In the case of Ashok Kumar Mishra and another v. Collector, Raipar and others (A.I.R. 1980 S.C. 112 at page 115) it was observed :- "It is well settled that the power of the High Court under Art, 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate-delay, it may reject the petition if it finds that the time of writ will lead to public inconvenience and interference with rights of others. This rule applies also to a case in which the validity of an election to a local authority is challenged. The question whether in a given case the delay involved is such that it disentitles a person to relief under Art. 226 is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances". 18. Later in the case of Gian Singh Mann v. The High Court of Punjab and Haryana and another (A.I.R. 1980 SC 1894 at page 1895) it was observed :- "The writ petition was filed in this court in 1978, about eleven years after the dates from which the promotions are claimed. There is no valid explanation for the delay. That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay. Relief must be refused on that ground." 19. From the above observations it is clear that though there is no period of limitation, yet the petitioner for the redress of his grievance under Art. 226 of the Constitution which is a discretionary remedy, should come to the court at the earliest without losing time. And if there is inordinate delay that should be explained. The delay of a year, or six months may be considered in some circumstances favourably, but if a person comes to court without any explanation, for the delay and there are latches on his part then the application for a writ cannot be allowed on that ground alone. 20. And if there is inordinate delay that should be explained. The delay of a year, or six months may be considered in some circumstances favourably, but if a person comes to court without any explanation, for the delay and there are latches on his part then the application for a writ cannot be allowed on that ground alone. 20. On account of contractual obligation being in force, disputed questions of fact are involved in this summary proceeding of the writ petition and that there is inordinate delay, in approaching the court without giving out any sufficient explanations are such circumstances on account of which this applications is liable to be dismissed. 21. In the result this writ application is dismissed.