Radharaman Enterprisers vs Cuttack Municipal Corporation

P. K. Mohanty, J.—Petitioner Radharaman Enterprisers, a Proprietory concern, has approached this Court with the following prayer :

"Therefore, it is prayed that this Hon''ble Court be pleased to call upon o. p. to show cause and in case they fail to do so or show insufficient cause be pleased to;

Directing the opp. party to make payment of the four bills as reflected under Annexure-1 along with interests at the Bank''s rate within a short period to be fixed by this Hon''ble Court;

And

Granting any other relief(s) as deemed fit and proper;"

It is the petitioner''s case that it supplied various articles as per the order placed by the opp. party-Cuttack Municipal Corporation and it was delivered in phases and bills'' were also submitted on different dates for payment, even though name of the bills have been paid but against some the payment has been arbitrarily witheld. The details of some bills have been given in the writ petition. The petitioner asserts that it had made a representation to the Municipal Corporation, but it has gone unheeded, which is unfair on the part of the public bodies like the opp. party, hence the present writ petition with the aforesaid reliefs.

A question was raised with regard to maintainability of the writ application. Sri G. K. Mishra, learned counsel for the petitioner contends that a writ petition for enforcement of a contractual right may be barred but this being a case for enforcement of a promise by the Municipal Authorities, the writ court can entertain the application and direct payment. The learned counsel has tried to bring a distinction between a promife for payment and on application of payment, arising out of a contract. The learned counsel has referred to the decision in Mjs. Radhakrishna Agarival and others v. State of Bihar and others AIR 1977 SC 1495 The Union of India and others v. M/s. Anglo Afghan Agencies etc. AIR 1968 SC 718 and Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, in support of his contention that a writ court would entertain an application for effecting payment of the outstanding dues by a citizen against a public Body like Municipal Corporation. The decisions cited, have absolutely no application to the facts of the case nor does it relates to the poinc in issue. In Radhakrishna Agarwal and other''s case (supra) the Apex Court held that after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determine rights and obligations of the parties inter se. No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or oblfgation on the State in the contractual field which is apart of contract. It has further been held in the said decision that even in a case of contract before one enters into the field of contract, facts have to be investigated and found before the question of a violation of article 14 could arise. If those facts are disputed and require assessment of evidence, the correctness of which can only be tested satisfactorily taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution.

Case of M/s. Motilal Padampat Sugar Mills Co, Ltd. (supra) relates to and a consideration is made on the question of place of waiver and as to whether such a plea raised for the first time in the writ petition and does not relate to a case skin to the present writ application for effecting payment on the supplies made. None of these cases lays down that when the State or its statutory authority purport to operate within the contractual field and the only grievance of the citizen would be that the contract between the parties is broken by the action complained of, the appropriate remedy is by way of a petition under Article 226 of the Constitution. Rather, the decisions of the Apex Court are contrary to this proposition.

In M/s. Sethi Transport, Madhupatna, Cuttack v. The Commissioner-cum-Secretary to Govt of Orissa and another, O. J. C. No. 4065 of 1999 in judgment dated 15-12-1999, a Division Bench of this Court of which I was a member, considered a similar question, as to whether a writ petition would be maintainable for enforcing payment for the services rendered or supplies made and referring to several decisions of the Apex Court, the Division Bench took the view that any dispute relating to any overdue amount arising out of a contract has to be worked out in the common law forum and on aggrieved party is not entitled to approach the writ court for enforcement of a contractual obligation for payment of outstanding bills. This is a matter for the common law forum i. e. the Civil Court. Whether any amount is due to the petitioner from the opp. party-Corporation under a contract and how much and whether the refusal to pay any amount to the Corporation is justified or not is the matter not within the scope and ambit of and cannot be agitated in a writ petition.

In the recent decision in Kerala State Electricity Board and Another Vs. Kurien E. Kalathil and Others, the Apex Court while considering the question of maintainability of a writ petition for enforcement of a contractual right in paragraph 10 thereof observed as follows :

''''10. We find that there is a merit in the first contention of Mr. Rawal. Learned counsel has righly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be tbe 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 constrocting parties came 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."

Whether any amount is due 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 contractors should have been relegated to the other remedies.

In that view of the matter, law is fairly well-settled that a writ petition for enforcement or obtaining a direction against a State or any statutory authorities to make payment of its outstanding dues or for a dispute relating to interpretation of terms and conditions of a contract or any overdue amount arising therefrom, has to be worked out in the common law forms and the aggrieved party is not entitled to approach the writ court for enforcement of the contractual obligation for payment of the outstanding bills. This is a matter for common law forum by the Civil Court or an arbitrator, if there is any special clause in the contract. Whether, the petitioner is entitled to any amount as against the supply made and bills submitted and as to whether the Corporation is liable to pay the amount are the matters which are to be found from evidence brought on record and have to be agitated and proved by evidence in a common law forum. The High Court, therefore would not entertain the writ petitions under Article 226 of the Constitution to enforce a contractual obligation or for payment of the dues of a supplier of any article pure and simple.

In aforesaid view of the matter, this writ petition has to be held as not maintainable and accordingly dismissed.

Writ petition dismissed.