TaxTMI 
TaxTMI 
TaxTMI 
2016 (4) TMI 1
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....rticle 226 of the Constitution in respect of a matter relating to termination of contract. The respondent was awarded the work, namely, "Stimulus package-improvements to Kannavam-Idumba-Trikadaripoyil Road Km. 0/000 to 9/100 in Kannur District" and accordingly an agreement was executed between the parties on 18.12.2010. The site for the work was handed over to the respondent on 27.12.2010 and the work was to be completed within a period of 12 months. Thus, the work, as requisite, under the terms of the contract was to be completed in all respects as on 26.12.2011. The respondent could not complete the work in time and on a request being made, time was initially extended up to 30.06.2012 and thereafter further extension was granted upto 31.03.2013. 3. As is perceptible from the order of termination of the contract, despite issue of several notices and instructions, the contractor failed to complete the work even during the extended period. The Executive Engineer of the Department issued a memorandum on 14.02.2013 stopping the work. As there was some deviation of work, the revised estimate was required to be done but the same was not sanctioned by the Government. At that juncture, t....
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....the appellant submitted that nearly 90% of the work was over and the work could not be completed within the extended period since the Department did not fulfil certain mandatory requirements in order to complete the work and since a stop memo was issued even before the expiration of the extended period. 2. Learned counsel for the appellant submitted that the appellant is prepared to take out a commission to substantiate the contention that 90% of the work is over. Learned Government pleader sought for a short time to get instructions. Since the matter is urgent and since the courts are going to be closed on 20.12.2013, we are inclined to grant only a day's time to get instructions on the prayer made by the appellant that a commissioner may be appointed." 7. On the adjourned date, the counsel for the State submitted that the respondent had no objection for appointment of Commissioner. On the aforesaid basis, the Division Bench appointed two Advocates as joint commissioners to inspect the site and to submit the report in respect of the disputed questions mentioned in the order dated 17.12.2013. Thereafter, the Court passed the following order:- "The Commissioners would be free t....
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....und to be incorrect by appointing Joint Commissioners, we are of the view that the Government should bear the expenses of the Commissioners and expenses of the Engineer in submitting the reports. Before conducting a final hearing, a sum of Rs. 40,000/- shall be paid by the first respondent to the appellant/writ petitioner. Taking into account the work done by the Engineer, we think that an additional remuneration of Rs. 5,000/- should be paid to the Engineer. The appellant/writ petitioner shall pay the said amount of Rs. 5,000/- to the Engineer within 15 days and proof thereof shall be produced by the appellant before this Court." 10. We have heard Mr. Ramesh Babu M.R., learned counsel for the appellants and Mr. K. Parmeshwar, learned counsel for the respondent. 11. The thrust of the matter is whether the Appellate Bench in intra- court appeal arising from a petition under Article 226 of the Constitution, should have carried out the exercise that it has done and eventually quashed the order terminating the contract by the competent authority of a Department on the ground that it was passed on erroneous facts, for the respondent contractor, as per the Commission's report, had done....
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....g the exercise of power under Article 226 of the Constitution in respect of enforcement of contractual obligations has stated:- "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 appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not 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 said case, it has been further observed:- "It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants w....
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....n dispute and what were admitted could only be determined after an affidavit-in-reply was filed by the State. The High Court, however, proceeded to dismiss the petition in limine. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right to relief questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute may not appropriately be tried in a writ petition, the High Court may decline to try a petition. Rejection of a petition in limine will normally be justified, where the High Court is of the view that the petition is frivolous or because of the nature of the claim made dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or....
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....of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. While laying down the principle, the Court sounded a word of caution as under:- "However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks[(1998) 8 SCC 1].) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State ....
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....f Orissa and Another[(2006) 10 SCC 236] would be seemly. The two-Judge Bench referred to the ABL International (supra), Dwarkadas Marfatia & Sons v. Board of Trustees, Port of Bombay[(1989) 3 SCC 293], Mahabir Auto Stores v. Indian Oil Corp.[ (1990) 3 SCC 752] and Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai[(2004) 3 SCC 214] and opined thus:- "Although the scope of judicial review or the development of law in this field has been noticed hereinbefore particularly in the light of the decision of this Court in ABL International Ltd. each case, however, must be decided on its own facts. Public interest as noticed hereinbefore, may be one of the factors to exercise the power of judicial review. In a case where a public law element is involved, judicial review may be permissible. (See Binny Ltd. v. V. Sadasivan[(2005) 6 SCC 657] and G.B. Mahajan v. Jalgaon Municipal Council[(1991) 3 SCC 91].)" 19. Thereafter, the court proceeded to analyse the facts and came to hold that certain serious disputed questions of facts have arisen for determination and such disputes ordinarily could not have been entertained by the High Court in exercise of its power of judicial review and u....