Biju K.J. vs State of Kerala and Others

Dama Seshadri Naidu, J.—Heard the learned counsel for the petitioner and the learned Government Pleader for the first respondent, as well as the learned counsel for the second respondent, apart from perusing the record. Since the issue lies in a narrow compass, this Court proposes to dispose of the writ petition at the admission stage itself. Briefly stated, the petitioner, an ''A'' Class Contractor, was assigned certain civil work by the second respondent, the Block Panchayat. After the execution of the said work, the second respondent prepared a final bill showing net amount payable to the petitioner as Rs. 15,07,007/-. Ventilating his grievance that despite the preparation of Ext. P3 final bill, the second respondent has not actually disbursed the amounts, the petitioner has filed the present writ petition.

The second respondent joined the issue by filing a counter-affidavit. In consonance with the averments made therein, the learned counsel for the second respondent has contended that subsequent to the preparation of Ext. P3 final bill, an audit inspection was conducted, resulting in Ext. R2(a) notice dated 28/05/2013 issued by the second respondent. In expatiation of his submissions, the learned counsel would contend that there was inordinate delay of four years on the petitioner''s in executing the work. Under those circumstances, based on the observations of the audit team, the second respondent deducted an amount of Rs. 5,28,870/- as penalty and paid the rest of the amounts, as has been indicated in paragraph 6 of the counter-affidavit.

The learned counsel for the petitioner has strenuously contended that after preparation of the final bill, there is no justification for the second respondent to deduct amounts merely based on what is said to be a directive of the Local Fund Audit and AG Audit in the Block Panchayat. He has also made submissions with regard to under what circumstances the delay, if at all, has occurred.

The learned counsel for the petitioner has drawn my attention to Ext. P2 plaint in OS No. 117 of 2008 on the file of the learned Munsiff Court, Pathanamthitta. He has contended that a third party filed the said suit against the respondent as well as the petitioner himself seeking liquidated damages for the loss allegedly caused to the plaintiff as a result of the execution of the civil work. According to the learned counsel, the delay, if any, in execution of the work was due to the pending litigation.

I do not, however, propose to enter into that controversy on what grounds the delay has occurred or whether there is any justification on the part of the second respondent in deducting the amount as penalty, albeit based on the directions or observations of the Audit Department. Suffice it to observe that this Court, in summary proceedings under Article 226 of the Constitution of India, as a matter of public law remedy, cannot go into the issue of disputed question of fact.

In Godavari Sugar Mills Ltd. Vs. The State of Maharashtra and Others, (2011) 5 CTC 233 : (2011) 1 SCALE 588 : (2011) 2 SCR 180 : (2011) AIRSCW 894 , the Hon''ble Supreme Court has surveyed the precedential position on the point of public law remedy vis-a-vis contractual disputes and has this to say:

"8. The observations in Suganmal Vs. State of Madhya Pradesh and Others, AIR 1965 SC 1740 : (1965) 56 ITR 84 : (1965) 16 STC 398 related to a claim for refund of tax and have to be understood with reference to the nature of claim made therein. The decision in Suganmal has been explained and distinguished in several subsequent cases, including in U.P. Pollution Control Board and Others Vs. Kanoria Industrial Ltd. and Another, AIR 2001 SC 787 : (2003) 180 CTR 402 : (2001) 128 ELT 3 : (2001) 2 JT 103 : (2001) 1 SCALE 381 : (2001) 2 SCC 549 : (2001) 1 SCR 559 : (2002) 128 STC 26 : (2001) 1 UJ 599 : (2001) AIRSCW 439 : (2001) 1 Supreme 507 , and ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others, (2004) 118 CompCas 213 : (2004) 1 CTLJ 1 : (2003) 10 JT 300 : (2003) 10 SCALE 81 : (2004) 3 SCC 553 . The legal position becomes clear when the decision in Suganmal read with the other decisions of this Court on the issue, referred to below:

(i) Normally a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers, [vide Burmah Construction Co. v. State of Orissa, 1962 Supp (1) SCR 242].

(ii) If a right has been infringed - whether a fundamental right or a statutory right and - the aggrieved party comes to the Court for enforcement of the right, it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the government without the authority of law (vide State of Madhya Pradesh Vs. Bhailal Bhai and Others, AIR 1964 SC 1006 : (1964) 6 SCR 261 : (1964) 15 STC 450 .

(iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the Petitioner claims a right. The aggrieved party seeking refund has to approach the Civil Court for claiming the amount, though the High Courts have the power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money, (vide Suganmal Vs. State of Madhya Pradesh and Others, AIR 1965 SC 1740 : (1965) 56 ITR 84 : (1965) 16 STC 398 .

(iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. While a petition praying for mere issue of a writ of mandamus to the state to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and therefore the Respondents had no authority to retain the money collected without any authority of law, the High Court has me power to direct refund in a writ petition [vide Salonah Tea Co. Ltd. and Others Vs. Superintendent of Taxes, Nowgong and Others, AIR 1990 SC 772 : (1988) 173 ITR 42 : (1987) 2 SCALE 1435 : (1988) 1 SCC 401 : (1988) 2 SCR 474 : (1988) 69 STC 290 .

(v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. (Vide U.P. Pollution Control Board and Others Vs. Kanoria Industrial Ltd. and Another, AIR 2001 SC 787 : (2003) 180 CTR 402 : (2001) 128 ELT 3 : (2001) 2 JT 103 : (2001) 1 SCALE 381 : (2001) 2 SCC 549 : (2001) 1 SCR 559 : (2002) 128 STC 26 : (2001) 1 UJ 599 : (2001) AIRSCW 439 : (2001) 1 Supreme 507 ) .

(vi) Where the lis has a public law character, or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. [Vide Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., AIR 2005 SC 3454 : (2006) 101 CLT 362 : (2005) 5 CTC 292 : (2005) 2 CTLJ 147 : (2005) 8 JT 334 : (2005) 8 SCC 242 : (2005) 3 SCR 190 Supp : (2005) 2 UJ 1318 : (2005) AIRSCW 4535 : (2005) 6 Supreme 328

Going by the above distillate of many decisions, we may see that the dispute is contractual; no challenge is laid against the deduction effected by the respondents on the ground of ultra vires or want of authority of law. The delay in execution and consequential deduction of amounts as a matter of penalty are all disputed questions of fact, requiring a thorough adjudication, which is impermissible under a summary procedure. In fact, the writ petition was filed for the simple relief of recovery of money.

There is no - and there cannot be any - sweeping proposition that no writ lies involving a contractual dispute. Indeed, if there is an express admission on the part of the respondent, who is amenable under Article 12 or Article 226, that the amounts are due, even out of a non-statutory contract, the respondent is bound by common law principles of estoppel, etc. On the other hand, where the facts are not in dispute, where the collection of money or withholding thereof is without the authority of law, where the action of the respondent authority is unconstitutional or ultra vires, or where the withholding of amounts or recovery thereof is collateral to a dispute having the public law character, a writ petition does lie. In the facts and circumstances, this Court dismisses the writ petition, leaving it open for the petitioner to lay a proper challenge before an appropriate forum, if he is aggrieved by Ext. R2(a) notice and the consequences ensued therefrom resulting in a deduction of Rs. 5,28,870/- as penalty against the petitioner.

No order as to costs.