An appeal is therefore provided against the order granting permission or refusing permission under section 45. There is obviously no appeal against deemed permission under section 45(5) of the Act. The necessary corollary of this legal situation is that there can be a deemed permission under section 45(5) of the MRTP Act against which there is no appeal provided and there being no order made by any of the authorities there is no question of which acquiring finality as contemplated by section 149. Section 149 reads thus :{Para 11}
"149. Finality of orders.-
Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
12. What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal proceedings for quashing a deemed permission under section 45(5) is maintainable. Even otherwise under section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by section 149 is therefore very limited.
13. In our opinion therefore, the contention of Mr. V. V. Tulzapurkar that a civil suit is barred by reason of the provisions of section 149 of MRTP Act is unacceptable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
V.G. PALSHIKAR AND P.V. KAKADE, JJ.
The Raja Bahadur Motilal Poona Mills Ltd. & Anr. Vs. State Of Maharashtra & Ors.
Writ Petition No.2591 of 2001
26th July, 2002
Citation: 2002(4) ALL MR 429,2003(1) BOM CR 251
PALSHIKAR, J.:- By this Petition, the Petitioner has challenged the sanction granted by the Pune Municipal Corporation to certain development plans submitted by Respondent No.7.
2. The Petitioner is a textile mill which was declared as sick unit by the Board for Industrial and Financial Reconstruction and steps were taken for rehabilitation and revival of the unit. The company i.e. the Petitioner owned certain properties bearing Final Plot Nos.100 and 101 of T. P. Scheme (Final) Sangamwadi, Pune in all measuring 1.02 lakh sq. mtrs. (approximately) situated at Kennedy Road, Pune city within the limits of Pune Municipal Corporation. Therefore in July 1996 the Board directed the Petitioner company to undertake development of surplus assets as part of the rehabilitation scheme so that the company can be brought out of the debts to be paid to some extent. Permission therefore was granted to develop upto the extent of 2 lakhs of sq. fts. of the land from out of the above said plots. This rehabilitation scheme was sanctioned by the Board on 18-3-1997. The development was allowed to be undertaken along with the Respondent no.7 as co-developer or co-promoter. On 29-4-1997 an agreement was entered into between the petitioner and the Respondent no.7 to carry out jointly the development activity of the 200000 sq. fits. as ear marked from out of the plot mentioned above.
3. The development activity continued and thereafter the Respondent no.7 made an application for permission to construct and develop on the said construction by utilizing or consuming Transferable Development Rights (TDR) of 1.6 lakhs sq. fts. acquired by Respondent no.7. This grant of permission to Respondent no.7 is impugned in this Petition by the Petitioner.
4. The prayers made by the Petitioner read as under :
"a) That this Hon'ble Court may be pleased to exercise its power under Article 226 of the Constitution of India and issue a Writ of Certiorari or appropriate Writ order or direction calling for the records and proceedings pertaining to the development permission granted vide commencement Certificate dated 11th April 2001, Exhibit "K" hereto.
b) That this Hon'ble Court may be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing and commanding Respondent nos.2 to 6 to forthwith cancel and/or withdraw the development permission granted vide Commencement Certificate dated 11th April 2001 Exhibit "K" hereto permitting Respondent no.7 to carry out development on the said earmarked portion.
c) That this Hon'ble Court may be pleased to issue a Writ, order or direction directing and commanding Respondent nos.2 to 6 to forthwith revoke the order allowing TDR acquired by Respondent No.7 to be used on the said property of Petitioner no.1.
d) That this Hon'ble Court may be pleased to issue a permanent order and injunction restraining the Respondent no.7, their servants, agents and officers or persons claiming through them from in any manner acting upon or in furtherance of the development permission issued vide Commencement Certificate dated 11th April 2001, Exhibit "K" hereto and carry on any construction on the property bearing Final Plot Nos.100 and 1-1 of T. P. Scheme (Final), Sangamwadi, Pune more particularly described in the map at Exhibit "A" hereto.
e) That pending the hearing and final disposal of this Petition, this Hon'ble Court may be pleased to issue a temporary order and injunction restraining the Respondent no.7 their servants, agents and officers or persons claiming through them from in any manner acting upon or in furtherance of the development permission issued vide Commencement Certificate dated 11th April 2001, Exhibit "K" hereto and carry on any construction on the property bearing Final Nos.100 and 101 of T. P. Scheme (Final), Sangamwadi, Pune more particularly described in the map at Exhibit "A" hereto.
g) The costs of this petition be provided for."
5. All these prayers are stoutly opposed on behalf of the Respondent no.7 as also other Respondents. All the contentions raised by the petitioner for grant of these prayers are opposed by the Respondents. However Mr. S. G. Aney the learned counsel appearing on behalf of the Respondent no.7 raised a preliminary objection of maintainability of this petition, on the ground that effective alternate remedy by way of Civil Suit is available. In fact his contention is that civil suit is the only remedy available to the petitioner as his claim of existence and execution of certain rights between the parties created by the agreement between his client and the petitioner and therefore no writ to effectuate contractual obligations or rights is maintainable. His objections in brief are that :
All the facts are in dispute. Interpretation of agreements between the Petitioner company and Respondent no.7 company is involved. Whether such contractual rights flow from their agreements or not is required to be decided and which cannot be done by this court, under Article 226 of the Constitution. The grant of the building plan is not a judicial or quasi judicial act. It is purely an administrative act and therefore it is not amenable to writ jurisdiction of this court. There is no question of principles of natural justice being violated as the action of granting building plan is purely administratory. It does not entail obedience of principles of natural justice. Therefore the writ petition is liable to be dismissed without going into the merits of the matter.
6. Mr. V. V. Tulzapurkar the learned counsel on behalf of the petitioner replied this contention by saying that the petitioner is challenging in this court by writ jurisdiction, an order passed under section 45 of the M.R.T.P. Act. The order has acquired finality by reason of section 149 and unless that order is set aside, he cannot move the civil court against Respondent No.7. According to the learned counsel such civil suit is barred by the provisions of the Act. Therefore writ is liable to be maintained. He relied on certain judgment of this court as also the Supreme Court of India in support of his proposition that where the impugned order has acquired finality by statute, a writ for quashing of that order is maintainable. We will have to examine these objections and its reply in the light of the provisions of the Act as also the settled law on the question of interfering in writ jurisdiction where alternate remedy of efficacious nature is available.
7. The M.R.T.P. Act, 1966 was enacted to make provisions for Planning and Development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor, to make better provisions for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to provide for the creation for new towns by means of Development Authorities to make provisions for the compulsory acquisition of land required for the public purpose in respect of the plans; and for the purpose connected with the matters aforesaid.
8. It is a code in itself and adequate provisions are made for development activity in a controlled and planned manner. Section 44 provides an opportunity to individual, not being the Central or State Government, or the local authority, intending to carry out any development of any land to make an application in writing for that purpose. Section 45 reads as under :
"45. Grant or refusal of permission -
(1) On receipt of an application under section 44 the Planning Authority may, subject to the provisions of this Act by order in writing -
(i) grant the permission, unconditionally;
(ii) grant the permission, subject to such general or special conditions as it may impose with the previous approval of the State Government; or
(iii) refuse the permission.
(2) Any permission granted under sub-section (1) with or without conditions shall be contained in a commencement certificate in the prescribed form.
(3) Every order granting permission subject to conditions, or refusing permission shall state the grounds for imposing such conditions or for such refusal.
(4) Every order under sub-section (1) shall be communicated to the applicant in the manner prescribed by regulations.
(5) If the Planning Authority does not communicate its decision whether to grant or refuse permission to the applicant within sixty days from the date of receipt of his application, or within sixty days from the date of receipt of reply from the applicant in respect of any requisition made by the Planning Authority, whichever is later, such permission shall be deemed to have been granted to the applicant on the date immediately following the date of expiry of sixty days.
Provided that the development proposals for which the permission was applied for, is strictly in conformity with the requirements of all the relevant Development Control Regulations framed under this Act or by-laws or regulations framed in this behalf under any law for the time being in force and the same in no way violates either the provisions of any draft or final plan or the proposals published by means of notice, submitted for sanction under this Act.
Provided further that, any development carried out in pursuance of such deemed permission which is in contravention of the provisions of the first proviso, shall be deemed to be an unauthorised development for the purpose of sections 52 to 57.
(6) The Planning Authority, shall, within one month from the date of issue of commencement certificate, forward duly authenticated copies of such certificate and the sanctioned building or development plans to the Collector concerned."
9. The application under section 44 made by any person is therefore required to decide by an order in writing. It is further stipulated by sub-section (5) of section 45 that if such order is not made within 60 days such permission as is prayed for by an application under section 44 shall be deemed to have been granted to the applicant. It will thus be seen that the permission may be granted unconditionally or conditionally or it may be refused, and if nothing is done, deemed permission is to be granted by the provisions of section 45(5) of the Act.
10. Then comes section 47 which reads as under :
"47. Appeal -
(1) Any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45, may within forty days of the date of communication of the order to him prefer an appeal to the State Government or to an Officer appointed by the State Government in this behalf, being an officer not below the rank of a Deputy Secretary to Government, and such appeal shall be made in such manner and accompanied by such fees (if any) as may be prescribed.
(2) The State Government or the officer so appointed may, after giving a reasonable opportunity to the appellant and the Planning Authority to be heard, by order dismiss the appeal, or allow the appeal by granting permission unconditionally or subject to the conditions as modified."
11. An appeal is therefore provided against the order granting permission or refusing permission under section 45. There is obviously no appeal against deemed permission under section 45(5) of the Act. The necessary corollary of this legal situation is that there can be a deemed permission under section 45(5) of the MRTP Act against which there is no appeal provided and there being no order made by any of the authorities there is no question of which acquiring finality as contemplated by section 149. Section 149 reads thus :
"149. Finality of orders.-
Save as otherwise expressly provided in this Act, every order passed or direction issued by the State Government or order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act shall be final and shall not be questioned in any suit or other legal proceedings."
12. What is necessary under section 149 to acquire finality and invite the bar of civil suit is, it should be an order passed or direction issued by the State Government or it should be an order passed or notice issued by any Regional Board, Planning Authority or Development Authority under this Act. It is provided by this section that no such order shall be questioned in any suit or in any legal proceedings. It is obvious therefore that a suit or legal proceedings for quashing a deemed permission under section 45(5) is maintainable. Even otherwise under section 149 what is barred is questioning of an order made under the Act in the civil suit. It does not bar any suit whereby a party to it can be prevented from acting on an action and order made under the Act. The bar spelt out by section 149 is therefore very limited.
13. In our opinion therefore, the contention of Mr. V. V. Tulzapurkar that a civil suit is barred by reason of the provisions of section 149 of MRTP Act is unacceptable.
14. According to the parties, both the petitioner and the Respondent no.7, there are certain agreements in existence and operative. According to the petitioner those agreements do not give the respondent no.7 any right to use TDR acquired by him somewhere else on the land which forms subject matter of the agreement. That being the claim of the petitioner that as the consequence of the permission granted under section 45 to the Respondent no.7, the respondent no.7 will be able to use the TDR on the land belonging to the petitioner and it will affect the right of the petitioner to use its own TDR acquired from some other place on its own land. The dispute between the respondent no.7 and the petitioner is, who has the right to use the TDR on the construction already made by the petitioner end the respondent no.7. It has nothing to do with the provisions of the MRTP Act or the orders made thereunder. The plan sanctioned by the authority under section 45 need not be challenged and what is the challenge by the petitioner is infringement of petitioner's right to use its own TDR on its own site the TDR by respondent no.7 cannot be utilised in breach of the agreement between the parties on the land belonging to petitioner. Even if such plan is sanctioned and can be operated the construction thereon, in accordance with the provisions of MRTP Act and other relevant clause for the time being in force is an activity to be undertaken by the respondent no.7. The respondent no.7 can be prevented from doing so by an injunction of the competent civil court granted on the basis of the pleading of the agreement on the face of which respondent no.7 is seeking to develop the land, however is not available to him. There is therefore in our opinion, in existance efficacious alternate remedy and therefore the argument of Mr. Aney that in such a situation the parties should be relegated to the alternate or efficacious remedy to decide all the disputed facts and agreement and the writ jurisdiction of this court is not available. We are therefore of the considered view that the law on the point of alternate remedy being the effective step for maintaining the writ petition under Article 226 and 227 of the Constitution. This question comes up before the court in regular intervals and the tendency to flout the rule of law is on increase and consequently judicial activism is also increased, and in several cases writ jurisdiction is moved inspite of the fact that alternative efficacious remedy is available on a specious plea and it is expedient in public interest to do so. In an exceptional case of public interest where large number of people are affected it may be that a writ petition could be entertained but the question is whether it would be a writ jurisdiction to be invoked as a matter of course even in dispute intra parties where there is no public interest at all or involved at all. Taking into consideration the fact that the question is ever repeated, we are pressed to decide that question so that as far as our court is concerned the same principle of law that writ jurisdiction should not be invoked where alternate remedy is possible, has to be followed.
15. It was then contended by Mr. Tulzapurkar that section 45 postulates grant of hearing of the objectors. Petitioner had objected well in advance the grant of application by respondent no.7 for development. He was not heard and therefore the order granting sanction under section 45 is violative of principles of natural justice. The submission of the learned counsel then was that even if the alternate remedy is held available, a writ is maintainable in the present case for the reason that principles of natural justice were violated.
16. Mr. Aney the learned counsel for the respondent no.7 countered this argument by saying that action under section 45 is to sanction and what is required by Planning Authority is to see that the development plan as put in with the application under section 44 conforms to the requirements of law, rules, instructions, byelaws etc, framed in that behalf by the Planning authority. That being a pure administrative action there is no question of principles of natural justice being attracted in the consideration of the application under section 45. We are unable to accept the submission of Mr. Tulzapurkar that section 45 postulates grant of hearing of the objectors. Firstly because the process of granting application under that section is purely a mechanical and administrative process. The authority has to process the application for development and on finding it to be in conformity with the requirements of law grant it, and if they are not in conformity, it will be rejected. There is therefore no room for granting any hearing to any person. The provisions of section 45 if read in whole, do not contemplate hearing even to the person applying under section 44 and the only remedy available to such person after the order is made is that, without hearing as contemplated by section 45, it will have to be held that both the applicant and the objectors if any, are entitled to hearing. The very fact that no such hearing as contemplated by provisions of section 45 is evident from the fact that the appeal is made available to persons aggrieved by grant of or refusal of permission under that section. In our opinion putting such prayer under section 45 is also hazard or to put in objections in various multi crore development plan the claim demand and delaying the execution of the development scheme. Such is not the intention of section 45 and therefore we reject the submission that it postulates the hearing.
17. That takes us to the main question of entertaining writ petition when alternate remedy by way of civil suit is available. In our opinion the law on the point is settled. However since the question is of recurring nature, we think to deal with the problem exhaustively with the sincere hope that hereafter the Rule will be observances of the alternate remedy in appropriate forum and exception in every exceptional cases would be entertaining of writ petition directly.
18. In Election Commission, India Vs. Saka Venkata Rao reported in A.I.R. 1953 S.C. page 210. The Chief Justice of India Mr. Patanjali Sastri has observed way back in 1953 as under :
"The makers of the Constitution, having decided to provide for certain basic safegards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforement of fundamental rights, the power to issue such directions, etc. "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position, as the Court of King's Bench in England".
19. It will be seen therefore that Article 226 meant for issuing writs for protection of fundamental rights and protection of such right has vital and basic, but are no mention in part III of the Act. It must be borne in mind that the petition for issuance of a writ as contemplated by Article 226 is a remedy for protection of rights and not a forum for resolving the intra parties disputes for which a Civil Procedure Code is created. It will also be borne in mind that Article 226 came into existence only in 1950. Prior to that Civil suit was the only remedy and bar of that jurisdiction must be specific and wherever it is, it must be construed strictly.
20. In. K. S. Rashid and son Vs. Income Tax Investigation Commission and others reported in AIR 1954 S.C. page 207 the Supreme Court has observed thus :
"The remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere."
In the instant case, we are convinced that such relief can be obtained by the petitioner in civil suit.
21. In Union of India Vs. T. R. Varma reported in A.I.R. 1957 S.C. page 882 Justice Venkataram Aiyar observed that following of alternate remedy before entering a writ jurisdiction was a well settled law in 1957 itself. It has also observed that :
"Under the law a person whose services have been wrongfully terminated is entitled to institute an action to vindicate his rights and in such an action the Court will be competent to award all the reliefs to which he may be entitled, including some which would not be admissible in a writ petition. It is well settled that when an alternative and equally efficacious remedy is open to a litigant he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the court to issue a writ, but, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Art.226 unless there are good grounds therefor".
22. In the very decision it is also observed by the Supreme Court that :
"Where there is a question on which there is a serious dispute, which cannot be satisfactorily decided without taking evidence, it is not the practice of Courts to decide it in a writ petition."
In the present case also there are serious disputes regarding scope and meaning of the agreements between Petitioner and Respondent no.7.
23. In the present case the petitioner and respondent No.7 seriously dispute the correct interpretation of various documents, agreements between them. Serious disputed facts arise in the present case. Where on an interpretation of a particular agreement such right to use TDR remains with the petitioner or respondent no.7 is a most serious dispute and the question of entering into that, as observed by the Supreme Court, in writ jurisdiction is not proper exercise of that jurisdiction. It is in this light that we have stated earlier that the writ jurisdiction is a remedy for protection of fundamental rights and it is not a forum for resolving intra parties disputes arising out of contractual obligations depending upon the contractual interpretations. For that purpose the best court is the civil court as created by the Civil Procedure Code in 1908, almost 42 years prior to creation of Article 226 of the Constitution.
24. In State of U.P. Vs. Mohammed Nooh reported in A.I.R. 1958 S.C. page 86 this position is resettled, which is as under :
"The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere untill the aggrieved party has exhausted his other statutory remedies."
25. Then in D.L.F. Housing Construction Pvt. Ltd. Vs. Delhi Municipal Corpn. and others reported in AIR 1976 S.C. page 386 the Supreme Court sounded the note of caution and observed that it would be hazardous to embark upon a determination of the points involved.
"In a case where the basic facts are disputed and complicated questions of law and fact depending on evidence are involved the Writ Court is not the proper forum for seeking relief. The right course for the High Court in proceedings under Art.226 is to dismiss the petition on this preliminary ground without entering upon merits of the case. In the absence of firm and adequate factual foundation, it is hazardous to embark upon a determination of the points involved."
26. The view that alternate remedy should normally be availed of before requiring exercise of writ jurisdiction have been constantly observed by the Supreme Court of India. The Supreme Court in State of Himachal Pradesh Vs. Raja Mahendra Pal and others reported in AIR 1999 S.C. page 1786 observed that it is the duty of the court to see that alternate remedy is first followed.
"It is true that 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 efficacious alternate 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 alternative efficacious remedy. The existence of the special circumstances are 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 of the Constitution."
27. In the present case the dispute is regarding right either of the petitioner or of respondent no.7 to use TDR on a given plot of land. It certainly therefore is not a special circumstances requiring exercise of writ jurisdiction and deviating from the settled proposition of law regarding the exercise of the writ jurisdiction under Article 226. Then the Supreme Court observes regarding jurisdiction of the High Court, which reads as follows :
"The High Court appears to have adopted a very generous, general and casual approach in applying the right to livelihood to the facts and circumstances of the case apparently for the purpose of clothing itself with the power and jurisdiction under Article 226 of the Constitution. We are sure that if the High Court had considered the argument in the right perspective and in the light of various pronouncements of this Court, it would not have ventured to assume jurisdiction for the purpose of conferring the State largess of public money, upon an unscrupulous litigant who preferred his claim on his proclaimed assumption of being as important as the Government of the State and equal thereto."
28. To hold, in the present case that the principles of natural justice are liable to be observed while deciding an application under section 45 of the Act is so liberally construing the provisions for the purpose of clothing us with the jurisdiction under Article 226. As has been rightly observed by the Supreme Court we do not venture to assume jurisdiction in this case by stretching language of section 45 beyond permissible limits.
29. Then in Life Insurance Corporation of India and others Vs. Asha Goel (Smt) and another reported in (2001) 2 S.C.C. 160 the Supreme Court reiterates the legal position in regard to observance of alternate remedy. It says thus :
"The courts must bear in mind the self-imposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed question of facts.
Ordinarily, the High Court should not entertain a writ petition filed under Article 226 of the Constitution for mere enforcement of a claim under a contract of insurance. Where an insurer has repudiated the claim, in case such a writ petition is filed, the High Court has to consider the facts and circumstances of the case, the nature of the dispute raised and the nature of the inquiry necessary to be made for determination of the questions raised."
30. In Kerala State Electricity Board and another Vs. Kurien E. Kalathil and others reported in A.I.R. 2000 S.C. page 2573 the Supreme Court considered interference of the High Court under Article 226 in contractual matter and observes thus :
"A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. A statute may expressly or impliedly confer power on a statutory body to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract. Every act of a statutory body need not necessarily involve an exercise of statutory power."
Then the Supreme Court went on to observe on the question of construction of a contract which reads thus :
"10. We find that there is a merit in the first contention of Mr. Rawal, Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract ? If a term of a contract is violated ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature."
11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not of itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have been relegated to other remedies."
31. In Chairman, Grid Corporation of Orissa Ltd. and others Vs. Smt. Sukumari Das and another reported in A.I.R. 1999 S.C. 3412 the Supreme Court re-iterated that writ jurisdiction should not be exercised where alternate remedy of civil suit is available.
"Held, High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution."
Even though they were not fit cases for exercising power under Article 226 of the Constitution the Supreme Court went on to observe that :
"It is the settled legal position that where disputed questions of facts are involved a petition under Art.226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the Civil Court."
In our opinion the dicta of the Supreme Court following the well settled law is very clear. Infact it is a mandate issued by the Supreme Court that the powers therein, i.e. Article 226 shall not be exercised in cases where alternate remedy is available, always leaving apart certain well known glaring exceptions.
32. In U. P. State Co-operative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and others reported in A.I.R. 1999 S.C. 753, the Supreme Court has observed regarding exercise of jurisdiction under Article 226 as under :
"The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views it has been held that jurisdiction under Article 226 can be exercised only when body or authority, decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy."
From the above dicta of the Supreme Court it will be clear that the jurisdiction under Article 226 i.e. the jurisdiction to issue writs is a public law remedy, a dispute between the parties to a contract, as to the interpretation of that contract is only in the realm of direct law, the remedy under public law cannot therefore be invoked.
33. In Rohtas Industries Ltd. and another Vs. Rohtas Industries Staff Union and others reported in A.I.R. 1976 S.C. 425 the Supreme Court has issued a serious caution regarding exercise of jurisdiction under Article 226. It would be beneficial to note verbatim what the Supreme Court has to say :
"It is one thing to affirm the jurisdiction, another to authorise its free exercise like a bull in a china shop. This court has spelt out wise and clear restraints on the use of this extraordinary remedy and High Courts will not go beyond those wholesome inhibitions except where the monstrosity of the situation or other exceptional circumstances cry for timely judicial interdict or mandate."
34. The position in law regarding not exercising the writ jurisdiction when alternate remedy is available, so well settled that it was not necessary to have restate the entire law on the point as laid down by the Supreme Court. In the recent past we have noticed that the tendency to invoke the extra ordinary jurisdiction is growing for various reasons. We may briefly note this aspect also. The first and foremost reason for rushing in writ jurisdiction is to seek instant adjudication of their disputes, which if taken to regular formus take years for adjudication. This being obviously an outcome of tremendous arrears pending at courts and therefore advocates canvas it as substantial reason for coming directly in writ jurisdiction. However in doing so the fact of arrears in the High Court on writ jurisdiction itself are ignored. The fact that because of large number of writs are filed in cases where alternate remedy is available and ought to be pursued, most of the time of the High Courts is consumed in resolving those newly instituted writ petitions of the kind, the present one is. As a necessary corollary to which the pendency of old writ petitions continues to mount, it may be noted that this Bench has been constituted for deciding old writ petitions since June 2002. In the last one and half months, we have seen that cases are pending in the High Court in its writ jurisdiction way back to year 1990. It therefore takes normally a period of 10 years for a writ petition to be decided in this court. If the figures of arrears in the entire Moffusil are statistically analyzed, it will be seen that by and large 80% of the civil suit or application before various Tribunals are decided within a period of 2 or 3 years. The argument therefore that, for an expeditious relief the High Court is approached in writ jurisdiction is proved to be incorrect. A Writ Petition takes more time to be decided than a civil suit or any other equal efficacious remedy.
35. Judicial notice also must be taken of the facts that large number of cases are filed where civil suit is only remedy solely with a view to avoid the payment of court fees. To take a concrete illustration, a writ petition is filed in the High Court seeking a direction to the respondent which invariably include a private educational institution and educational authority which directs the payment, the direction sought for is, it is the duty of the State to pay, and therefore writ is maintainable. It is obvious that if it is the duty of the State to pay, the payment can be recovered by filing a civil suit. A civil suit for such recovery of money will be decided in a span of 2 or 3 years whereas the petitions for that relief are pending in this court since 1992. No relief of any kind is received by the litigant. To carry further the illustration in such a petition claiming arrears of salary, it may be presumed that the salary arrears for the period of three years are approximately one lakh rupee. A civil suit will require a payment of court fees to the tune of Rs.3000/- or so. Attempt is made to deny the revenue to the State by filing a writ petition with court fee of Rs.250/-. Apart from denial of revenue to the State, in our opinion, exercise of writ jurisdiction in such cases is lending active assistance to the litigants to override the provisions of statute which require court fee for adjudication of the cases. Exercise of writ jurisdiction cannot be invoked therefore in cases where the consequences of loss of revenue, the loss of time, circumvention of law is involved.
36. In view of the above observations of the Supreme Court made so recently, it is obvious that the High Court should not interfere in contractual matters even if the contracts are with the statutory authorities. The Supreme Court has clearly observed that merely because the statutory authorities are involved, the contract does not become a statutory contract and even in matter of statutory contract, in our opinion no interference under Article 226 is possible unless the effect of that breach of contract or violation of the conditions of the contract have direct bearing upon the fundamental right of a person.
37. From the aforesaid discussion based on the judgments of the Supreme Court it will be clear that through out during the subsistence of Article 226 since it is inception it has been recorded that the sound and settled principle of law that whatever alternate and efficacious remedy available, it should be availed of before a writ jurisdiction is sought to be exercised. No doubt 2 or 3 exceptions of these rules have been carved out but they must be in the nature of things remains to be exception. We need not go into those exceptions as present case is not one which could be said to have been covered by any of the exceptions. In our opinion therefore this petition is liable to be rejected for availability of alternate remedy of civil suit because it is in the civil suit that the petitioner company can lay foundation for its claim that injunction is liable to be issued against respondent no.7 restraining it from using the sanction granted, under section 45 of the Act. It can lead evidence in the civil suit on the documents to prove as to what was intended to be given under the agreement entered into between the petitioner and the respondent no.7. That aspect of the matter cannot be gone into a writ jurisdiction. No injury is caused to the petitioner as he has chosen to come to the court directly under Article 226 even for the appropriate relief, which can be claimed from appropriate civil court.
38. In fact the legal position, as also the observations made here above embarks as a settled position in law and there is no need to reiterate it at length. We feel obligated to do it because inspite of the clear law existing, a tendency to file writ jurisdiction circumventing the normal and alternate remedy is on the increase. The above quoted are not the only reasons to such circumvention and there could be a many more. But we do not intend to go on to analyse those reasons also, in this case. Ultimately therefore we most sincerely hope that this aspect of not entertaining writs when alternate remedy is available would be adequately considered by all courts having this jurisdiction.
39. There is no reason whatsoever therefore for this court to exercise its extra ordinary jurisdiction under Article 226 for effectuating certain contractual obligations of right. In the result, therefore, the petition fails and it is dismissed.
Parties to act on the authenticated copy of this order.
After the judgment was pronounced, Mr. V. V. Tulzapurkar the learned counsel for the petitioner submitted that an interim order was operative in favour of the petitioner. In view of this judgment holding that a suit will have to be filed, he seeks continuance of that order for further period of four weeks to enable the petitioner to take appropriate steps in that regard.
Looking to the controversy involved we think, the request would be granted for a period of four weeks. Hence the interim order made in this petition earlier will continue for four more weeks in favour of the petitioner.
Petition dismissed.
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