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2003 DIGILAW 869 (SC)

State Of U. P. v. BHRIGUJI CONSTRUCTIONS

2003-07-30

D.M.DHARMADHIKARI, SHIVARAJ V.PATIL

body2003
ORDER 1. THE RESPONDENT FILED A WRIT PETITION BEFORE THE HIGH COURT SEEKING THE FOLLOWING RELIEFS: "(A) ISSUE A WRIT OF CERTIORARI OR A WRIT, ORDER OR DIRECTION IN THE NATURE OF CERTIORARI QUASHING THE AUCTION NOTICE DATED 4-12-1995, PUBLISHED IN A SECTION OF PRESS, CONTAINED IN ANNEXURE 1 TO THE WRIT PETITION. (B) ISSUE A WRIT OF MANDAMUS OR A WRIT, ORDER OR DIRECTION IN THE NATURE OF MANDAMUS COMMANDING THE OPPOSITE PARTIES TO ACT IN PURSUANCE OF THE GOVERNMENT ORDERS DATED 21-4-1981 AND 16-6-1992 AND TO ALLOW THE PETITIONER TO CONTINUE TO RUN HIS THEKA FOR REALISATION OF TOLL TAX OVER THE GANGE PULL IN DISTRICT MIRZAPUR UP TO 31-3-1997 WHILE DISPOSING OF THE REPRESENTATIONS OF THE PETITIONER AND NOT TO INTERFERE WITH THE PETITIONERS CONTINUING AS SUCH; AND NOT TO GRANT THEKA OF THE SAME TO ANY OTHER PERSON. (C) ISSUE ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION WHICH THIS HONBLE COURT MAY DEEM JUST AND NECESSARY IN THE CIRCUMSTANCES OF THE CASE MAY ALSO BE PASSED." 2. THE HIGH COURT BY THE IMPUGNED ORDER, DID NOT GRANT RELIEFS AS PRAYED FOR IN THE WRIT PETITION. ON THE OTHER HAND, THE RELIEFS SOUGHT FOR WERE NEGATIVED BY THE HIGH COURT, BUT THE HIGH COURT GAVE DIRECTION TO THE A APPELLANTS TO MAKE REFUND OF PROPORTIONATE AMOUNT OF CONTRACT FOR THE PERIOD FROM 1-4-1995 TO 8-5-1995 TO THE RESPONDENT WITH INTEREST @ 18% PER ANNUM AND ALSO DAMAGES @ 15% PER ANNUM. 3. LEARNED COUNSEL FOR THE APPELLANTS URGED THAT THE HIGH COURT WAS NOT JUSTIFIED IN GIVING DIRECTION TO REFUND, WHICH WAS NOT AT ALL SOUGHT FOR BY THE RESPONDENT IN THE WRIT PETITION; THE HIGH COURT HAVING NEGATIVED THE RELIEFS AS PRAYED FOR IN THE WRIT PETITION, HAS EXCEEDED, ITS JURISDICTION IN MAKING AN ORDER OF REFUND OF AMOUNT. HE ADDED THAT THE HIGH COURT WAS ALSO NOT RIGHT IN ORDERING FOR REFUND OF THE AMOUNT WITHOUT EVEN VERIFYING WHETHER THE ENTIRE AMOUNT OF CONTRACT WAS DEPOSITED WITH THE AUTHORITIES AND WHETHER THERE WAS DELAY ON ACCOUNT OF THE RESPONDENT OR ON ACCOUNT OF THE APPELLANTS IN NOT ALLOWING THE RESPONDENT TO CARRYON THE CONTRACT WORK FROM 1-4-1995 TO 8-5-1995. IT WAS THE FURTHER SUBMISSION OF THE LEARNED COUNSEL THAT IF A DISPUTED QUESTION OF FACT DID ARISE FOR CONSIDERATION, IN THAT EVENT THE REMEDY FOR THE RESPONDENT WAS TO GO TO A CIVIL COURT. 4. IT WAS THE FURTHER SUBMISSION OF THE LEARNED COUNSEL THAT IF A DISPUTED QUESTION OF FACT DID ARISE FOR CONSIDERATION, IN THAT EVENT THE REMEDY FOR THE RESPONDENT WAS TO GO TO A CIVIL COURT. 4. IN OPPOSITION, THE LEARNED COUNSEL FOR THE RESPONDENT URGED THAT THE IMPUGNED ORDER IS QUITE JUSTIFIED HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, PARTICULARLY SO, WHEN THE APPELLANTS DID NOT FILE ANY COUNTER TO THE WRIT PETITION; IN THE ABSENCE OF A COUNTER TO THE WRIT PETITION, THE HIGH COURT WAS RIGHT IN PROCEEDING TO GRANT THE RELIEF ON THE BASIS OF THE AVERMENTS MADE IN THE WRIT PETITION. HE RESPONDED TO THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE APPELLANTS THAT THE HIGH COURT WAS WELL WITHIN ITS JURISDICTION TO GRANT AN APPROPRIATE RELIEF, WITHOUT STICKING TO THE TECHNICALITIES. 5. THE HIGH COURT, IN OUR OPINION, COMMITTED AN ERROR IN ORDERING FOR THE REFUND OF THE MONEY TO THE RESPONDENT WITHOUT EXAMINING THE BASIC FACTS, SUCH AS WHETHER THE DEPOSIT OF THE TOTAL AMOUNT OF CONTRACT WAS MADE OR NOT. IT SHOULD HAVE ALSO EXAMINED AS TO WHETHER THE WORK OF CONTRACT COULD NOT BE COMMENCED TILL 8-5-1995 ON ACCOUNT OF THE APPELLANTS OR ON ACCOUNT OF THE RESPONDENT ITSELF. OF COURSE, IN AN APPROPRIATE CASE, BASED ON THE FACTS AND F CIRCUMSTANCES OF THE CASE, IF THE FACTS WERE UNDISPUTED, THE HIGH COURT COULD MOULD THE RELIEF, BUT, WITHOUT EXAMINING THE NECESSARY BASIC FACTS AND CONTENTIONS OF THE PARTIES THE HIGH COURT WAS NOT JUSTIFIED IN ORDERING THE REFUND, AS IS DONE IN THE IMPUGNED JUDGMENT. THE HIGH COURT, IN OUR VIEW, WAS NOT RIGHT IN GRANTING INTEREST @18% AND ALSO DAMAGES @15%. IN CASE IT IS ESTABLISHED THAT THE FAULT IS WITH THE APPELLANTS, EITHER THE REASONABLE G INTEREST COULD BE AWARDED OR THE DAMAGES COULD BE AWARDED, BUT NOT BOTH. WHETHER DISPUTED QUESTIONS ARISE OR WHETHER ON THE ADMITTED FACTS THE RELIEF CAN BE GRANTED, IS FOR THE HIGH COURT TO EXAMINE. 6. UNDER THESE CIRCUMSTANCES, WE THINK IT JUST AND APPROPRIATE TO SET ASIDE THE IMPUGNED JUDGMENT AND REMIT THE WRIT PETITION TO THE HIGH COURT FOR DECISION ON MERITS IN ACCORDANCE WITH LAW. ALL THE CONTENTIONS OF THE PARTIES H ARE LEFT OPEN TO BE DECIDED IN THE WRIT PETITION. 6. UNDER THESE CIRCUMSTANCES, WE THINK IT JUST AND APPROPRIATE TO SET ASIDE THE IMPUGNED JUDGMENT AND REMIT THE WRIT PETITION TO THE HIGH COURT FOR DECISION ON MERITS IN ACCORDANCE WITH LAW. ALL THE CONTENTIONS OF THE PARTIES H ARE LEFT OPEN TO BE DECIDED IN THE WRIT PETITION. THE APPELLANTS TO FILE COUNTER TO THE WRIT PETITION WITHIN A PERIOD OF EIGHT WEEKS FROM TODAY BEFORE THE HIGH COURT. IT IS OPEN TO THE PARTIES TO PRODUCE ADDITIONAL DOCUMENTS, IF ANY. 7. THE APPEAL IS DISPOSED OF IN THE ABOVE TERMS.