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TMI Blog2016 (4) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... of powers under Article 226 in a contractual matter. We can well appreciate a Committee being appointed in a Public Interest Litigation to assist the Court or to find out certain facts. Such an exercise is meant for public good and in public interest. For example, when an issue arises whether in a particular State there are toilets for school children and there is an assertion by the State that there are good toilets, definitely the Court can appoint a Committee to verify the same. It is because the lis is not adversarial in nature. The same principle cannot be taken recourse to in respect of a contractual controversy. It is also surprising that the High Court has been entertaining series of writ petitions at the instance of the respondent, which is nothing but abuse of the process of extraordinary jurisdiction of the High Court. The Appellate Bench should have applied more restraint and proceeded in accordance with law instead of making a roving enquiry. Such a step is impermissible and by no stretch of imagination subserves any public interest. Thus the appeal is allowed and the judgment and order passed by the Appellate Bench is set aside. - CIVIL APPEAL NO. 6086 OF 2015 (@ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principal Secretary to take a decision on the proposal of revised estimate. Thereafter, the respondent filed a contempt petition which was eventually dropped. 4. As the factual matrix would further unfurl, the respondent submitted a representation to the Government and thereafter filed W.P.(C) No. 23087 of 2012. The High Court directed the Principal Secretary, PWD to consider and pass orders on his representation. It is apt to note here that the respondent had filed series of writ petitions, namely, W.P.(C) No. 26075 of 2012 and W.P.(C) No. 5690 of 2013 and the High Court vide order dated 08.04.2013 in W.P.(C) No. 5690 of 2013, directed the Secretary, PWD to pass appropriate orders in accordance with law. Eventually, as has been stated earlier, the contract was terminated. 5. The said order of termination was assailed in WP(C) No. 22541 of 2013. The learned Single Judge noted the facts and took note of prayer no. (c) which was for issue of a writ of mandamus or any other appropriate writ, order or direction directing the respondents to take steps for measurement of the work already completed by him and making corresponding entries in the measurement book. The said prayer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndents would provide all assistance to the Commissioners for execution of their work. The Commissioners would be entitled to call for any record from the appellant as well as respondents 3 and 4 for the purpose of executing the work entrusted to them. 8. The Commission appointed by the Appellate Bench took assistance of one Retired Assistant Executive Engineer, PWD who submitted a report to the commissioners, which was annexed to the Commission s report. We need not refer to the report which has been reproduced by the impugned order. However, the Engineer who assisted the Commission, in his report under the heading Details of work done , has stated thus:- Anyhow the contractor has executed a minimum amount of work so far up to the commission, inspection date of 3.1.2014 of ₹ 2,27,90,383/- which is 72.24% of the revised estimate and 97.09% of the original work (Estimate PAC). There are some minor damages in the completed portion of BT surface and white topped portion (concrete road) and the general condition of the whole work executed by the contractor is satisfactory. A detailed item wise statement is prepared and appended herewith for perusal as Annexure A. 9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Court in appeal. The learned Single Judge had directed measurement to be carried out prior to floating of tender for the balance work. That direction, as is evident, has been accepted by the State. 12. As the factual narration would reveal, the respondent has been invoking the jurisdiction of the High Court under Article 226 of the Constitution on various occasions challenging every action which pertain to extension of time, denial of revised estimate by the State Government and many other facets of that nature and the High Court, we must say, has been generously passing orders for consideration by the appropriate authority, for grant of opportunity of being heard to the contractor and to consider his representation in accordance with law. This kind of orders in a contractual matter, in our considered view, is ill-conceived. They not only convert the controversy to a disturbing labyrinth, but encourage frivolous litigation. The competent authority might have mentioned that more than 50% work remained to be done but that should not have prompted the Appellate Bench hearing the intra-court appeal to appoint a Commission of two Advocates and granting them liberty to take assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs. 14. In National Highways Authority of India v. Ganga Enterprises[(2003) 7 SCC 410], the respondent therein had filed a writ petition before the High Court for refund of the amount. The High Court posed two questions, namely, (a) whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act; and (b) whether the writ petition is maintainable in a claim arising out of breach of contract. While dealing with the said issue, this Court opined that:- It is settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. It has been so held in the cases of Kerala SEB v. Kurien E. Kalathil[(2000) 6 SCC 293], State of U.P. v. Bridge Roof Co. (India) Ltd.[ (1996) 6 SCC 22] and Bareilly Development Authority v. Ajai Pal Singh[(1989) 2 SCC 116]. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector. 16. In the present case, in our judgment, the High Court was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. The High Court has jurisdiction to determine questions of fact, even if they are in dispute and the present, in our judgment, is a case in which in the interests of both the parties the High Court should have entertained the petition and called for an affidavit-in- reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit. [Emphasis added] 16. In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.[ (2004) 3 SCC 553], a two-Judge Bench after referring to various judgments as well as the pronouncement in Gunwant Kaur (supra) and Century Spg. And Mfg. Co. Ltd. v. Ulhasnagar Municipal Council[(1970) 1 SCC 582], h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction . 17. It is appropriate to state here that in the said case, the Court granted the relief as the facts were absolutely clear from the documentary evidence brought which pertain to interpretation of certain clauses of contract of insurance. In that context, the Court opined:- .... The terms of the insurance contract which were agreed between the parties were after the terms of the contract between the exporter and the importer were executed which included the addendum, therefore, without hesitation we must proceed on the basis that the first respondent issued the insurance policy knowing very well that there was more than one mode of payment of consideration and it had insured failure of all the modes of payment of consideration. From the correspondence as well as from the terms of the policy, it is noticed that existence of only two conditions has been made as a condition precedent for making the first respondent Corporation liable to pay for the insured risk, that is: (i) there should be a default on the part of the Kazak Corporation to pay for the goods received; and (ii) there shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in respect of contractual claim or challenge to violation of contract can be entertained by a writ court. It depends upon facts of each case. The issue that had arisen in ABL International (supra) was that an instrumentality of a State was placing a different construction on the clauses of the contract of insurance and the insured was interpreting the contract differently. The Court thought it apt merely because something is disputed by the insurer, it should not enter into the realm of disputed questions of fact. In fact, there was no disputed question of fact, but it required interpretation of the terms of the contract of insurance. Similarly, if the materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review but, a pregnant one, in the case at hand, the High Court has appointed a Commission to collect the evidence, accepted the same without calling for objections from the respondent and quashed the order of termination of contract. The procedure adopted by the High Court, if we permit ourselves to say so, is quite unknown to exercise of powers under Article 226 in a contractual matter. We can well appreciate a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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