Ghulam Mohd. Mata and Others vs State of Jammu and Kashmir and Another

K.V. Gopalakrishnan Nair, J.—The Petitioners who are five in number allege that they own certain mills run on electric power supplied by

the Respondents and ask for a writ of Mandamus as well as prohibition directing the Respondents (a) to charge the Petitioners for the electricity

supplied to them at the old rates and not at the enhanced rates mentioned in Order No. 1-Dev/Camn of 1958 dated 29-5-1958, (b) to supply

electricity to the Petitioners for twelve hours uninterruptedly every day, and (c) charge the price of electricity according to the Metre system. The

Petitioners also claim general relief of, any other appropriate writ, order or direction.

The first Respondent is the State and the second Respondent is the Electrical Engineer, Baramulla Division. The main contention of the

Respondents is that the petition is not maintainable, as it relates entirely to the enforcement of the contract between the Petitioners and the

Respondents. It is further pointed out that Petitioners 1 to 4 are merely strangers who are not entitled to the supply of electricity by the

Respondents under contract or otherwise. Regarding the fifth Petitioner, it is alleged that his remedy, if any, is not by way of a writ but by an

appropriate action at law in the ordinary civil court.

It does not appear that Petitioners 1. to 4 have locus standi to maintain the petition; they have not entered into any engagement with the

Respondents in respect of supply of electricity. The learned Counsel for the Petitioners does not take his stand on any provision of law under

which the Petitioners are entitled to be supplied electricity by the Respondents. It is common ground that there is no statutory obligation on the part

of the Respondents to supply electricity to any of the Petitioners at certain fixed rates or during certain fixed months. The Petitioners can, therefore,

base their claim only on contract between them and the Respondents. As no such contract has been entered into between Petitioners 1 to 4 and

the Respondents, the former cannot maintain the present petition. But this does not dispose of the matter. Petitioner No. 5 has in his favour a valid,

contract from the Respondents for supply of electricity. The question then is whether he has a remedy by way of writ in respect of that contract?

As I mentioned earlier, the writs asked for are Mandamus and prohibition. The learned Advocate General has urged that neither of these writs is

available in this case. I think his contention is well founded. I shall first deal with the writ of Mandamus.

It appears to be well settled that a Mandamus will not issue to enforce a contractual obligation. The law has been correctly stated as follows by

Ferris in ""Extraordinary Legal Remedies':

The duties enforceable by mandamus, although not necessarily public duties, are those imposed by law. Mandamus will not lie therefore to enforce

a right founded purely on private contract however clear that right may be.

The same view has been expressed by Marrill in his Law of Mandamus, paragraph 16 page 9 in these words:

Since the object of this writ (mandamus) is to enforce duties created by law, it will not lie to enforce private contracts, unless it is extended to such

cases by statutory enactment.

In P.K. Banerjee Vs. L.J. Simonds and Another, , Gentle J. after referring to AIR 1936 269 (Privy Council) observed:

Their Lordships make no reference to a right under contract being enforceable by mandamus; they clearly enunciate that the duty imposed upon a

public servant which can be the subject of mandamus, is a statutory duty.... Even if the Respondents had been parties to the Appellants contract

any duty or obligation falling upon them out of the contract cannot be enforced by the machinery of Section 45.

This decision was, no doubt, rendered under the provisions of Section 45 of the Specific Relief Act. But it is well known that Section 45 of the

Specific Relief Act embodied all the important conditions for the issue of a writ of mandamus by the Court of King's Bench in England. Therefore,

it makes no difference in principle whether Mandamus was asked for u/s 45 of the Specific Relief Act before the coming into force of the

Constitution or whether it is asked for under Article 226 of the Constitution of India after the commencement of that Constitution.

The decision in P.K. Banerjee Vs. L.J. Simonds and Another, , where the writ was asked for under Article 226 of the Constitution of India.

Bose J. stated the position as under:

It is an elementary proposition that a 'mandamus' does not lie to enforce or restrain the performance of a contractual obligation.

The aforesaid decisions were followed by Kapur, J. in Chattar Singh Vs. State of Punjab and Another, . The same principle was pointed out by

Das J. in Bukhtiarpur Bihar Light Rly. Co. Ltd. Vs. State of Bihar and Others, , at p. 241.

In Indian Tobacco Corporation v. State of Madias AIR 1954 Mad 549, a Bench of the Madras High Court consisting of Rajamannar, C.J. and

Venkatarama Aiyar J. held that a writ of mandamus cannot be granted for enforcement of contractual obligations for which there is a remedy by an

action at law in the ordinary course and that the writ is granted only to compel the performance of duties of a public nature.

It is now firmly established that a writ of mandamus will issue only to enforce duties of a public nature, and not to compel performance of private

contracts or to restrain threatened breach of such contracts. It is equally clear that mandamus will lie only where there is no other specific legal

remedy for enforcing the right. It is no doubt permissible that although there is an alternative legal remedy yet if such mode of redress is less

beneficial and effectual, a mandamus may issue. But in no event can it be used as an alternative mode of redress when another equally effective and

beneficial redress is available, in the usual course of law. I may notice in this connection the observations made by a Full Bench of the Allahabad

High Court in Indian Sugar Mills Association Vs. Secy. to Government, Uttar Pradesh Labour Department and Others, at p. 3:

We feel that the time has come when we may point out that Article 226 of the Constitution was not intended to provide an alternative mode of

redress to the normal process of a decision in an action brought in the usual courts established by law.

The position in the present case is that the rights and obligations of the parties are governed by contract executed by them. The party who is

aggrieved by any breach of the contract can well resort to an ordinary court of law and obtain adequate and effective redress. He cannot be

allowed to invoke the extraordinary jurisdiction of this Court by asking for a writ of mandamus, thereby by-passing the ordinary forum of law

which undoubtedly is available to him. The prayer for a writ of mandamus has, therefore, to be rejected.

The request for a writ of prohibition is perhaps even less unable. A writ of prohibition has always been understood as a writ which could issue

only to a judicial or a quasi-judicial Tribunal or to an inferior court. A writ of prohibition like a writ of certiorari is in the main issued for the purpose

of restraining inferior courts or authorities exercising judicial or quasi-judicial functions from exceeding their jurisdiction. The fundamental difference

between these two writs is that they are issued at different stages of the proceedings.

When an inferior court or a quasi-judicial Tribunal assumes jurisdiction to try or inquire into a matter over which it has no jurisdiction, the aggrieved

person can move the High Court for a writ of prohibition and if ho succeeds, an order will issue from the High Court forbidding the inferior court or

Tribunal from continuing the proceedings. But if the inferior court or Tribunal has concluded the proceedings and given a decision, the party

aggrieved would nave to move the High Court for a writ of certiorari to quash that order. A writ of prohibition cannot be issued to a private

individual or an authority which is not clothed with judicial or quasi-judicial function.

In the instant case, the Respondents do not form any judicial or quasi-judicial Tribunal. They are not authorities invested with judicial or quasi-

judicial functions. They are in the context of the present case merely one of the contracting parties in a commercial transaction. There is no question

here of the Respondents assuming any jurisdiction in a judicial or quasi-judicial capacity to proceed against the Petitioners. I am, therefore, clearly

of the view that a writ of prohibition does not lie.

Nor am I able to see that any direction or order in the nature of a writ can properly issue in this case to the Respondents. Such an order or

direction can issue only on the broad principles on which an appropriate writ can issue. We cannot issue any order or direction without being

guided by the broad and fundamental principles which regulate the grant of writs. It is, therefore, not tenable to say that even if a writ of prohibition

or mandamus cannot issue, a direction or order more or less to the same effect may issue. The following passage from the judgment in In Re:

Gadea Nagabhushana Reddi and Another, , is apposite here:

But the learned Counsel argued that Article 226 is not confined to the issue of recognized writs like mandamus, prohibition or certiorari. It includes

other writs and orders and directions without any restriction whatsoever as to their scope. In answer to a question from us he was compelled to

confess that the logical result of the construction sought to be placed by him on the language of the Article would be to enable any person

aggrieved to obtain any relief by an application under this Article. Take for instance the case of money due under a promissory note to the payee of

the note. Ordinarily the only remedy available for the creditor to recover the money due to him is by way of a suit in the appropriate court. But, as

the language of Article 228(1) is very wide and refers to the issue of directions to any person for any purpose, logically, the creditor instead of filing

a suit can straightway approach this Court for a direction to the debtor to pay him the money. As the only limitation contained in Article 226 is, that

the power is confined to the territories in relation to which this Court exercises jurisdiction, presumably any person in the State of Madras can

approach this Court under Article 226 for a direction against any other person in this State for any purpose. The construction of Article 226 would

practically abrogate the entire judicial system and the machinery set up for the administration of justice in the State. We do not think that Article

226 should be construed in this manner in spite of the wide language on which the counsel relied.

A few other contentions raised on behalf of the Petitioners may now be disposed of. In the petition it is alleged that the Respondents had no

right to enhance the rates for supply of electricity and that, therefore, the order they passed on 29-5-1958 whereby the rates were revised

unfavourably to the Petitioners violated the Petitioners' fundamental rights. The learned Counsel for the Petitioners did not however, press this

contention, and he was obviously right. The written agreement between the parties empowers the Respondents to increase the rates and, therefore,

it would have been idle to contend that there was a violation of fundamental rights and so forth. The entire case of the Petitioners is exclusively

relatable to the contract entered into by them with the Respondents.

The Respondents have denied certain allegations of fact made by the Petitioners. For instance, the Petitioners have stated that electricity was

not being supplied to them sufficiently long. The Respondents say that this allegation is utterly untrue. The Petitioners have claimed, that they should

be charged according to the Metre system. This really falls within the domain of contract. Furthermore, the Respondents have pointed out that they

are willing to charge the Petitioners according to Metre system, provided. Metres are installed by the Petitioners. I do not think a controversy like

this can properly form the subject-matter of a writ.

The only other contention of the Petitioners is that the Notification dated 29-5-1958 does not apply to them. Assuming it to be so, the proper

remedy for the Petitioners is to resort to an ordinary civil court for relief. Without prejudice to any such possible action which the Petitioners may

take, I am inclined to say that a proper reading of the Notification dated 29-5-1958 goes to show that the revised rates are as much applicable to

the Petitioners as to other consumers of the same class.

It follows from the foregoing that there is no merit in the petition which is, therefore, dismissed with costs which are assessed at Rs. 50/ -.