Sikandar Ali v. Nagar Nigam Jaipur — 1999 DIGILAW 833 (RAJ)

Honble MADAN, J.–This appeal arises out of judgment and order dt. 4.2.1999 of the learned Single Judge of this Court passed in S.B. Civil Writ Petition No. 586/99 whereby, the writ petition preferred by the petitioners was dismissed in limine. (2). The appellants are the contractors and they had been given contract by Nagar Nigam Jaipur, respondent No. 1 for removal of garbage from the garbage collection points of Nagar Nigam Jaipur on the basis of tenders invited from general public by way of publication in various newspapers for the year 1996-97. In response to the said advertisement, the appellants had submitted their tenders as per terms & conditions of the tender notice and after due scrutiny of their tenders, they were given contract for removal of garbage and transportation. The work contract for the year 1996-97 was extended for the next year i.e. 1997-98 (vide Annexure-3) to the writ petition and again for the year 1998-99 (vide Annexure-4) to the writ petition with 10% increase of rates. (3). The case of the appellants before the learned Single Judge was that for the year 1999-2000 the committee which was constituted by the Jaipur Nagar Nigam, respondent No. 1 had recommended the names of the appellants for extension of work order and even the Chairman of the committee had also recommended their case for extension. This was in view of the fact that rates quoted by the appellants were lowest but still respondent No. 4, Mayor, Jaipur Nagar Nigam, Jaipur was adamant in not complying with the recommendations of the committee and instead called for another tender. It was submitted that since the appellants had taken the loan for arranging the trollies for collecting garbage etc. and in view of the financial implications they had been adversely subjected to loss. , (4). The learned Single Judge was of the view that since no monopoly could be created in favour of the appellants for all times to come hence, the appellants could not claim statutory right for extension of their tenders from time to time. and in view of the financial implications they had been adversely subjected to loss. , (4). The learned Single Judge was of the view that since no monopoly could be created in favour of the appellants for all times to come hence, the appellants could not claim statutory right for extension of their tenders from time to time. He was further of the view that since no legal or statutory right accrues to the appellants for the work order for the year 1999-2000 to be awarded to them only, hence it was not open to the appellants to insist upon the respondent-Jaipur Nagar Nigam not to invite fresh tenders from the general public now, or in future as the Jaipur Nagar Nigam could not be restrained to do so. Consequently, the writ petition was dismissed in limine. (5). Being aggrieved, the appellants have come up before this Court by way of the instant appeal. (6). We have heard learned counsel for the parties at length and perused the relevant documents on the record as well as the order of the learned Single Judge and the legal position on the subject. (7). During the course of hearing, Mrs. Naina Saraf, learned counsel for the appellants has vehemently contended at the bar that keeping in view the (a) past good performance of the appellants as contractor; (b) that their work order for removal of garbage was extended twice i.e. for the year 1997-98 and 1998-99, Annexure 3 & 4, respectively; (c) that the Chairman of the Committee (Health Sanitation) had very strongly recommended the case of the appellants for extension of work contract to the Director Local Bodies, respondent No. 3 and to Mayor, Jaipur Nagar Nigam, respondent No. 4, the appellants were entitled to be given the work contract for the year 1999-2000 as well. Mrs. Naina Saraf further contended that appellants had already purchased the equipment for better and speedy work for which they had incurred loan on the basis of the recommendations of the Chairman of the Committee and they were conveyed assurance by the then Mayor of Jaipur Nagar Nigam that their work contract will be extended for successive three years. The said recommendations are said to have been approved by the Zonal Commissioner of Jaipur Nagar Nigam and thereafter the matter was referred to Mayor, Jaipur Nagar Nigam, Jaipur. The said recommendations are said to have been approved by the Zonal Commissioner of Jaipur Nagar Nigam and thereafter the matter was referred to Mayor, Jaipur Nagar Nigam, Jaipur. It is alleged that Mayor of the Nigam had advised the appellants that if they want to participate in the tender they will have to deposit draft of Rs. 2,58,000/-but, inspite of several representations made by the appellants to the respondents individually, no action was taken in the matter nor any payment has been made to them. Finally, the appellants made a representation to the State Government on 29.12.1998 but that too was not given any effect. Hence, being aggrieved of the aforesaid action on the part of the respondents, the appellants (petitioners) had preferred writ petition before this Court which was dismissed in limine by the learned Single Judge vide order dated 4.2.1999 and being aggrieved of the said order, the appellants have now come up before this Court by way of instant appeal. (8). Mr. PC. Jain, learned counsel for the respondents has vehemently opposed the contentions advanced by Mrs. Naina Saraf learned counsel for the appellants on the grounds inter-alia that though the appellants were given contract for removal of garbage on the basis of tenders approved for the year 1996-97 and which was extended twice for the year 1997-98 and 1998-99 but, the Nigam was of the view that tenders should be invited from the general public afresh on the basis of the administrative decision taken by the Committee. Consequently, the tenders were invited afresh on 5.1.1999, 7.1.1999 and 2.2.1999 respectively, on the basis of publication made in various Newspapers. (9). Learned counsel for the respondents has further contended that there was nothing binding on the Jaipur Nagar Nigam not to advertise the tenders afresh and to consider the work performance of the contractors-appellants. Hence, no statutory or legal right has been created in favour of the appellants for all times to come. Correspondingly, contractual obligations do not create any vested, statutory or legal right in favour of the appellants. In support of his contention, Mr. Jain, learned counsel for the respondents has placed reliance upon the judgment of this Court in the matter of Municipal Corporation, Jaipur vs. M/s. Devasans Private Ltd. (1) and also the judgment of the Apex Court in the matter of State of H.P. vs. Raja Mahendra Pal and Ors. (2). (10). In support of his contention, Mr. Jain, learned counsel for the respondents has placed reliance upon the judgment of this Court in the matter of Municipal Corporation, Jaipur vs. M/s. Devasans Private Ltd. (1) and also the judgment of the Apex Court in the matter of State of H.P. vs. Raja Mahendra Pal and Ors. (2). (10). The controversy in the matter of Municipal Corporation Jaipur vs. M/s. Devasans Private Ltd. (supra) before this Court was that petitioner-respondent was the private limited company having registered office in Khan Market, New Delhi. In the year 1989, Jaipur Municipal Council (Jaipur Municipal Corporation) invited tenders for lifting of garbage within the city of Jaipur on the basis of the advertisement issued in August, 1989. The petitioner Municipal Corporation, Jaipur had come up before the Division Bench against the impugned judgment of the learned Single Judge dt. 20.9.1995 who while dismissing the writ petition was of the view that the action of the respondent-appellant (Corporation) in withholding the petitioners payment was wholly arbitrary and illegal and consequently, learned Single Judge had directed payment of certain amount with interest to the respondent-petitioner (M/s. Devasans Pvt. Ltd.). (11). In appeal, the question which arose for consideration of the learned, Division Bench of this Court was thus - (1) as to whether the learned Single Judge can direct payment of work contract during the period of dispute and whether the writ petition is maintainable particularly when lot of disputed facts are involved? (12). Thus, while allowing the appeal of Municipal Corporation Jaipur, it was observed by the Division Bench that since a lot of disputed questions of fact are involved between the parties, no finding could be given without embarking upon an enquiry and for which the parties were to be given opportunity to adduce evidence in their support which was not possible to be decided in the writ petition. It was further observed that in absence of any agreement by which the matter could be referred to the Arbitrator, there was no decision to appoint Arbitrator to decide the disputed question of facts between the parties. (13). In the matter of State of H.P vs. Raja Mahendra Pal and Ors. (supra), the question of law before the Apex Court in Appeal related to Forest located in Kangra District, now a part of Himachal Pradesh State which earlier was a Princely State. (13). In the matter of State of H.P vs. Raja Mahendra Pal and Ors. (supra), the question of law before the Apex Court in Appeal related to Forest located in Kangra District, now a part of Himachal Pradesh State which earlier was a Princely State. The various forest produce such as resin, timber, bamboo etc. were required to be auctioned by the Forest Department in respect of government forests in accordance with the working plan and the highest bidder was to be granted the lease. This practice was discontinued after the forests were nationalised by the appellant-State in the year 1974 when the Himachal Pradesh Forest Corporation was incorporated under the provisions of the Companies Act, 1956. Produce of the government forests, thereafter, could be sold only to the Forest Corporation. Ever since its incorporation, the Corporation continued purchasing timber and other forest produce from Raja Mahendra Pal in accordance with the working plan. The said respondent alleged that in addition to his entitlement to the sale price of the various forest produce sold by him out of Kutlehar Forest to the respondent-Corporation, he was also entitled to share the interest on delayed payment, interest on interest and compensation for damages caused to the trees in the course of extraction of timber. The appellant-State was claimed to have constituted a Pricing Committee which decided to apply the decisions taken by it in regard to the sale produce. The Pricing Committee in its meeting reviewed the guidelines and accordingly, the Principal Chief Conservator of Forests was directed to take over management and possession of the Forest with the assistance of the Collector. Respondent-Raja Mahendra Pal filed a writ petition before the High Court challenging the pre-existing rights as also his entitlement to retain the forest by challenging the validity of notification. The claim of the respondent was resisted on various grounds. (14). During the pendency of the writ petition, respondent No. 1 Raja Mahendra Pal filed another writ petition in the High Court of Himachal Pradesh claiming relief on the basis of decision of Pricing Committee being applicable and binding on the said Committee. The claim of the respondent was resisted on various grounds. (14). During the pendency of the writ petition, respondent No. 1 Raja Mahendra Pal filed another writ petition in the High Court of Himachal Pradesh claiming relief on the basis of decision of Pricing Committee being applicable and binding on the said Committee. The said claim was resisted by the State on various grounds that It was not open to the petitioner (respondent No. 1) to enforce contractual rights and obligations which can only be done by way of a civil suit and not through writ petition and the decision of the Pricing Committee regarding payment of additional amount in question also could not be enforced by way of a writ. The said pleas of the appellant-State were rejected by the High Court while allowing the writ petition. Aggrieved by the decision of the High Court, State preferred Special Leave Petition before the Apex Court which came to be allowed by the Apex Court with cost with the observations, as under- ``The powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual rights arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional court should insist upon the party to avail of the same instead of invoking the extraordinary writ jurisdiction of the court. This does not however debar the court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of the special circumstances are (sic) required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article. In the instant case, the High Court did not notice any special circumstance which could be held to have persuaded it to deviate from the settled proposition of law regarding the exercise of the writ jurisdiction under Article 226. (15). In the instant case, the High Court did not notice any special circumstance which could be held to have persuaded it to deviate from the settled proposition of law regarding the exercise of the writ jurisdiction under Article 226. (15). As a result of discussion made hereinabove we are consequently of the view that merely because the appellants had been given the work contract for the year 1996-97 which had been extended twice for the years i.e. 1997-98 and 1998-99, would by itself not be a ground for awarding further extension to them for the year 1999-2000 since, no statutory right much less, any legal right permanently vest with the appellants. The contention of the learned counsel for the appellants that their case is strengthened by the recommendations of the Committee which had recommended for extension of their work contract by another three years, would not by itself create any obligations on the part of Jaipur Nagar Nigam to award any further extension of work contract to the appellants. (16). We are prima-facie of the view that no legal much less statutory right flows in favour of the appellants on the basis of the tender dt. 18.1.1999 in view of which the interim-order dt. 15.2.1999 was passed in favour of the appellants by the learned Division Bench of this Court by which the parties were directed to maintain status-quo until further orders. We are rather of the firm opinion that contractual obligations cannot be enforced by way of writ petition under Article 226 of the Constitution of India unless some special circumstances are shown to exist which we find lacking in the present case. (17). Our above observations are fortified from the judgment of the Apex Court in the matter of State of H.P. vs. Raja Mahendra Pal and Ors. (supra) wherein a similar controversy had arisen for consideration of the Apex Court. It was observed by the Apex Court that the impugned judgment of the High Court could not be sustained even on merits inasmuch as, no statutory right enforceable under the law existed in favour of respondent No. 1. The enforcement of such a command should not have been issued in the form of a writ of mandamus. The appeal preferred by the State against the impugned-judgment of the High was consequently allowed and the judgment of the High Court was set-aside. The enforcement of such a command should not have been issued in the form of a writ of mandamus. The appeal preferred by the State against the impugned-judgment of the High was consequently allowed and the judgment of the High Court was set-aside. Applying the ratio of the aforesaid decision to the instant case, we are consequently of the view that interim-order dt. 15.2.1999 by which the parties were directed to maintain status-quo until further orders should be vacated and it is accordingly vacated. As a result of above discussion, the appeal is dismissed. We have been informed that the respondent-Corporation has been put to substantial monitory loss as a result of stoppage of tenders and implementation of the responsibilities of the Corporation towards citizens of Jaipur City for maintaining upkeep and cleanness of the City of Jaipur. If that be so, the respondent-Corporation is free to take appropriate action against the petitioners before the appropriate authority as it may be so advised in accordance with law.