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Madhya Pradesh High Court · body

2008 DIGILAW 1286 (MP)

Kailash Chand Munyar v. M. P. State Road Transport Corporation

2008-11-04

SANJAY YADAV

body2008
ORDER 1. The order passed in this writ petition shall govern the disposal of Writ Petitions No. 11830/2008, 11844/2008 and 11845/2008, because the issue involved in these writ petitions are similar. For the sake of record the facts of W.P. No. 11824/2008 are taken into consideration. 2. The petitioner by way of present writ petition seeks quashment of order dated 11.11.200S, Annexure P-5; whereby, the petitioner was informed that since the petitioner has failed to comply with the terms and conditions of allotment and caused delay in payment of premium, the allotment of shop stand cancelled and amount of premium deposited stand forfeited. 3. The facts in nutshell are that Madhya Pradesh State Road Transport Corporation, respondent No.1, issued a Notice Inviting Tender for construction of 7 shops within the Bus Stand premises at Hoshangabad under self financing scheme vide notification published in newspaper dated 30.5.2000. The tender of the petitioner was accepted and an intimation to that effect was sent on 18.8.2000, Annexure P-2. It appears from the impugned order that there was default in depositing the amount under the self financing scheme and notices were issued on 16.9.2004 and 28.2.2005. Though the petitioner, for the reasons best known to him, has not brought these notices on record; however, the same finds mention under reference in Annexure P-5. The petitioner has also not brought on record the allotment letter containing terms and conditions, depriving thereof this Court to have a proper appreciation of the facts. Be that as it may. 4. It appears that despite of receiving the said notices the petitioner did not deposit the premium amount as sought for by the respondent, resulting in cancellation of allotment and forfeiture of the amount of premium which was communicated to the petitioner vide impugned letter dated 10.11.2005, Annexure P-5, which the petitioner has chosen not to question the same for almost three years, thereby allowing the same to attain finality, which is now being challenged on the ground that there is an infringement of the constitutional right and a legal injury is caused to the petitioner. Further placing reliance on the case of Devinder Singh and others v. State of Punjab and others, 2007 AIR SCW 6692, that the property right besides being a constitutional right is also a human right and the deprivation thereof can be agitated in a writ petition under Article 226 of the Constitution of India. 5. Considered the submissions put forth by the learned counsel for the petitioner. 6. The enunciation of principle of law regarding the property right being a human right in the case of Devinder Singh (supra), was in the context of Land Acquisition Act, 1894, which is an expropriatory Legislation and the acquisition of land thereunder for a private company, existence of public purpose being not a requisite criteria, the statutory requirements in the said case called for strict compliance being imperative in character. Their Lordships, in the context were pleased to observe in Paragraph 41 in the following terms: "41. Expropriatory legislation, as is well known, must be strictly construed. When the properties of a citizen is being compulsorily acquired by a State in exercise of its power of Eminent Domain, the essential ingredients thereof, namely, existence of a public purpose and payment of compensation are principal requisites therefor. In the case of acquisition of land for a private company, existence of a public purpose being not a requisite criteria, other statutory requirements call for strict compliance, being imperative in character." 7. In the case at hand, the issue is some what different. Here is the case where, in response to the NIT, the tender of the petitioner was accepted on certain terms and conditions. The non-compliance entailed the cancellation and the forfeiture of the amount of premium. The petitioner entered into such contract with open eyes and the same being within the domain of a private contract and no statutory violation is being established, no mandamus, in the considered opinion of this Court can be issued at the instance of one of the contracting party. 8. In catena of cases decided by the Supreme Court in the matter of contract when no statutory violation is established, the aggrieved party should refer to the remedy available under the common law and interference in the writ petition is not permissible. 8. In catena of cases decided by the Supreme Court in the matter of contract when no statutory violation is established, the aggrieved party should refer to the remedy available under the common law and interference in the writ petition is not permissible. To note few: In the case of World Tel Net and another v. Union of India and others, [ (2001) 10 SCC 513 ], Their Lordships of the Supreme Court were pleased to observe in Paragraph 2 : "2. The petitioner made a claim for refund of a sum of eighty-three and odd lakhs of rupees together with interest at the rate of 21 % p.a. payable by Doordarshan. The writ petition filed by the petitioner under Article 226 was dismissed by a Division Bench of the High Court of Delhi by entering into the merits of the rival contentions. In our view the High Court ought not to have entered upon findings on the contentions issues in a proceeding under Article 226 of the Constitution. Instead the parties should have been resolved in a civil litigation. The claim made is basically one arising from contractual obligations. Time and again this Court has said that such disputes should not be resolved through the summary proceeding conducted under Article 226 of the Constitution. We, therefore, vacate all such findings made against the appellant in the impugned judgment." Similarly in the case of State of Bihar and others v. Jain Plastics and Chemicals Ltd. [ (2002) 1 SCC 216 ], Their Lordships were pleased to observe in Paragraph 3 in following terms: "3. Settled law-writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the Court of competent jurisdiction for 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 Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226." In the case of Hindustan Steel Works Construction Ltd. and another v. Hindustan Steel Works Construction Ltd. Employees Union [ (2005) 6 SCC 725 ]. Equally, the existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226." In the case of Hindustan Steel Works Construction Ltd. and another v. Hindustan Steel Works Construction Ltd. Employees Union [ (2005) 6 SCC 725 ]. There Lordships of the apex Court were pleased to observe Paragraph 8 in the following terms: "8. In U.P. State Bridge Corporation Ltd. v. U.P. Rajya Setu Nigam S. Karamchari Sangh, it was held that when the dispute relates to enforcement of a right or obligation under the statute and specific remedy is, therefore, provided under the statute, the High Court should not deviate from the general view and interfere under Article 226 except when a very strong case is made out for making a departure. The person who insists upon such remedy can avail of the process as provided under the statute. To same effect are the decisions in Premier Automobiles Ltd. Kamlekar Shantaran Wadke; Rajasthan SRTC v. Krishna Kant; Chandrakant Tukaram Nikam v. Municipal Corporation of Ahmedabad and in Scooters India v. Vijai E. V. Eldred." In the case of State of U.P. v. Bridge & Roof Co. (India) Ltd., AIR 1996 SC 3515 , it has been held by the Supreme Court that the dispute regarding enforcement of a private contract has to be adjudicated by resorting to the remedy of arbitration, if available or by filing a suit and not by resorting to a remedy under Article 226 of the Constitution of India. 9. The principle of law laid down in the aforesaid judgment thus indicates that judicial review in cases of contract is permissible only if the statutory provisions are shown to be violated in the matter of implementing the contract. 10. Having thus considered the contentions, the petition is dismissed in limine; however, the petitioner shall be at liberty to move such forum available under law. 11. In the result, the petition fails and is hereby dismissed in limine. No costs.