9911796707
TMI Blog1959 (7) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... of tender, date of acceptance, value of work, date of work order, date of completion and the period of completion are given below: S. No. Contract No. particulars. Date of tender. Date of acceptance. Value of work. Date of work order. Date of completion. Completion period. A. CEEC/KAN/34 at 52-53 construction of 54 'P' type Qrs. Kanpur. 9-1-53 29-1-53 ₹ 980842-71 12-5-53 14-11-54 18 months. B. CEEC/AGR/AFW; 27 of 54-55 construction of 280 Followers Qrs. Agra. 24-12-54 8-1-55 576655.37 24-1-55 23-1-56 12 months. C. CEEC/AGR/AFW; 26 of 54-55 Taxi Track Apron at Agra. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt and the steel which the employer had to supply under the terms of the agreement were not supplied till 13 months after the tender was accepted. Even thereafter the employer made a change in the timber directing that deodar should be used instead of C.P. teak but a little after, changed its mind and reverted back to C. P. teak from deodar. It is further complained that on a second occasion the employer did not supply the steel which it had undertaken to supply and the sub-contractor did not supply the sanitary fittings. According to the petitioner the delay in the completion of the work covered by contract B was caused by the default and lapses including those mentioned above committed by the employer. It is alleged that a sum of ₹ 90,000/- is due to the petitioner from the employer and though bills had been submitted for the same payments have not been made. 4. In connection with contract C the petitioner's case is than it could not be completed up to 9-1-1956 as the site for the taxi track on which the construction was to be made was not handed over to the petitioner in time and further the employer committed delays and defaults in supplying material which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he building agreement (contract) threatening cancellation of the contract as from 25-8-58 and to get the balance of the work comprising the incomplete items of work and work not carried out according to contract specifications done by other agencies at the risk and the cost of the petitioner. On 2-6-1958 the acting Chief Engineer, purporting to exercise his powers under Clause 54, cancelled the contract 'B' and asked the petitioner to vacate the site within three days from the receipt of the said letter. On 3-7-1958 another letter was sent to the same effect. It is complained that the respondents have also illegally seized large quantities of the petitioner's stores valued at about ₹ 50,000/-. On 16-6-1958 the respondent No. 1 cancelled the agreement with regard to the contract 'D'. On 4-7-1958 the same respondent served another notice on the petitioner asking it to vacate the site of the proposed constructions contemplated by the contracts 'C' and 'D'. On 9-8-1958 the respondent No. 1 sent another letter to the petitioner, this time informing is that in case the work was not completed by 25th August the contract 'A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n.P. and that none of the contacts was for a sum of more than ten lacs of rupees. It is also alleged that the rates of issue of material which the employer had undertaken to supply have wrongly been given in annexure 'I' of the petitioner's affidavit. What according to Col. Nautiyal were the correct rates have been given in annexure 'A' filed along with the counter affidavit. It is admitted that the first work order was not given to the petitioner earlier than 12-5-53 but it is alleged that the 18 months period for completion of the work given in the agreement was to count from 15-5-53 and thus according to the counter affidavit the petitioner did not suffer in any way nor did it lodge any protest. In fact it is alleged that the petitioner accepted the first work order willingly on 14-5-53. The petitioner's allegation than it was required to suspend the work has been admitted but it is alleged that the time lost due to the suspension of the building operations was allowed to the petitioner as the period of completion was correspondingly expended by the employer by the period for which the suspension operated. The petitioner's allegation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constructions was entirely due to the fault of the petitioner. All the four contracts had been running for some time under compensation Clause in December 1956. It is seated that the amount of work done after 15-6-57 and up to October 1957 under the contracts 'C' and 'D' was approximately ₹ 1,72,600 and not ₹ 2,00,000/-. On contract 'C' four running payments were made to the petitioner after June 1957 to the extent of ₹ 63,100/- after deducting the cost of materials, hire charges in respect of plant and other miscellaneous charges such as water, house rent etc., and keeping 10 per pent, as retention money in terms of the contract. On contract 'D' two running payments were made to the petitioner after June 1957 to the extent of ₹ 16,000/- after deducting all charges as mentioned in respect of contract 'C'. The case of the employers as set forth in the counter affidavit is that they had to serve notices on the petitioner intimating it that its contracts would be cancelled if it did not complete the works by the specified dates as it was not possible to allow the petitioner to delay the completion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, the point for determination in this petition whether the respondent was denied a reasonable opportunity to present his case, turns mainly on the question whether he was prevented from cross-examining the witnesses, who gave evidence in support of the charge. That is a question on which there is a serious dispute which cannot be satisfactorily decided without taking evidence. It is not the practice of Courts to decide questions of that character in a writ petition. ...... 11. The next ground on which I have come to the conclusion that this petition should be dismissed is that the petitioner has got an alternative remedy of getting the matter referred to an arbitrator. Clause 68 of the agreement deed reads as follows : 68. Arbitration. -- All disputes, between the parities to the Contract arising out of or relating to the Contract, other than those for which the decision of the C. W. E. or of any other person is by the Contract expressed to be final and conclusive, shall after written notice by either party to the Contract to the other of them be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ten consent of the employer or architect and the contractor. In our case a reference to arbitration is possible not only after the completion of the works but also when the contracts have been determined. The English case mentioned above therefore cannot be of help to the petitioner. In my opinion the conditions pro-requisite for a valid reference to arbitration exist in the present case and it is not possible to say that a reference is premature. The petitioner has thus got a clear alternative remedy. 14. In this connection Mr. Kunzru has next contended that Clause 68 of the agreement is void because it provides that the award of the Arbitrator shall be final, conclusive and binding on both parties to the Contract. It is contended that inasmuch as this Clause operates to bar absolutely the jurisdiction of the ordinary tribunals it falls within the mischief of Section 28 of the Indian Contract Act and is consequently void. It is further contended that inasmuch as this Clause is void, the parties are relieved of the necessity of having recourse to arbitration and this Clause cannot be the basis of an alternative remedy in the present case. The relevant portions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-clause or the fact that the sub-clause appears to be void does not in any way affect the right of the parties to have recourse to arbitration and does not make a reference to an arbitrator any the less an alternative remedy. 15. It was contended by Mr. Kunzru very strenuously that the jurisdiction of this Court under Article 226 of the Constitution is not barred because of the mere existence of an alternative remedy. While considering the scope of the various writs it was held by their Lordships of the Supreme Court in the case of U. P. State v. Mohammad. Nooh AIR 1958 SC 86 as follows: In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. It is not necessary to multiply cases on this point. Suffice it to say that it is a well established rule that a writ of mandamus will be refused if there Is an alternative remedy. In the present case there is a prayer for the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice prevailing in England or America in view of the clear pronouncement of their Lordships of the Supreme Court in Mohammad Nooh's case AIR 1958 SC 86. I may however add that the statement of law as contained in the well known book Extraordinary Legal Remedies by Ferris and in Halsbury's Laws of England, Vol. 11 (Simond's Edition) does show that the existence of an alternative remedy has been considered a bar to the issue of a writ of mandamus. I am reproducing below a passage from Ferris 1926 Ed. p. 245, Article 212: Mandamus will not, subject to the exercise of a sound judicial discretion, issue where there is another adequate and specific legal remedy competent to afford relief upon the same subject-matter. At page 107, paragraph 200, Vol. 11 of Halsbury's Laws of England (Simonds Ed.) the law on the point has been stated as follows: The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial, and effective. 17. But quite apart from the question whether or not the existence of an alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia in the present case. There is abundant authority for the proposition that no legislative enactment either of the Parliament or of a State Legislature can in any way restrict the power of this Court in passing orders under Article 226 of the Constitution of India (see Raj Krishna v. Vinod Kanungo [1954]1SCR913 , and Asiatic Engineering Co. v. Acchru Ram AIR1951All746 . 19. That being so, it is not possible to hold that the jurisdiction of this Court is barred under Article 226 of the Constitution of India because of the existence of the arbitration Clause (Clause 68 of the agreement). Even though it is so, in my opinion, the petitioner should be directed to have recourse to arbitration in the present case for two reasons. In the first place the scheme of the Legislature is that law Courts should not decide a matter which under an agreement or a statute has got to be decided by an arbitrator only and I see no reason why I should not respect that legislative intent. Secondly, the petitioner itself was a party to the agreement under which the matter has got to be referred to an arbitrator and it does not appear tome either just or proper that the petitioner should be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic performance of its material terms. For that reason also the present agreement cannot be specifically enforced. In the case of Dewan Chand v. Union of India AIR 1951 P H 426 Kapur, J., observed as follows: In a building contract it is difficult for Courts to look after the acts and conduct of a building contractor nor can it say how far he does or does not depart from the correct execution of the works which he is professing to execute and where the case is one in which the personal skill of a person is an important factor the Courts will not be able to specifically enforce it. Besides in a building contract if a contractor is lawfully dismissed he has the remedy of getting compensation by way of damages and in such cases specific performance will not be given by Courts. I respectfully agree with the observations made above. A similar view was taken in the case of Ramchandra Ganesh v. Ramchandra Kondaji ILR 22 Bom 46. 22. It cannot be denied that the petitioner can be compensated in money for the non-performance of the contract in the present case. The petitioner had taken the contracts with a view to. make profit. It was interested in the contracts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nary remedies, either at law or equity. This is necessarily so. for mandamus is limited to the enforcement of obligations imposed by law; and for the further reason that the writ cannot be substituted for a decree of specific performance in equity. So mandamus will not lie to compel a corporation to supply water for irrigation purposes, where the, right thereto rests on the contractual relationship of stock-holder in the company. If is generally held that the right to receive a diploma from a private corporation rests on a private contract relation, and that mandamus will not lie. Where petitioner contracts with a private medical college, completes his course, pays the required fees, and performs all the conditions of his contract, and is then refused a diploma, the case is one purely of breach of contact, and mandamus will not lie, as there is an adequate remedy by a suit in equity for specific performance. The same rule is held to apply as to the right to attend a private incorporated institution of learning, as where it is sought to compel reinstatement as a student in a nurses' training school, or to reinstate a physician as a member of the medical staff of a private hospit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on' can only mean the power to issue such a writ to any person to whom, according to well-established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words 'and for any other purpose' must mean 'for any other purpose for which any of the writs mentioned would, according to well-established principles, issue, (see Carlsbad Mineral Water Manufacturing Company v, H. M. Jagtiani AIR1952Cal315 ). The Madras High Court also in the case of Indian Tobacco Corporation v. State of Madras AIR1954Mad549 took a similar view with regard to the scope of Article 226 of the Constitution. Relying upon the case of AIR1952Cal315 (supra) the Madras High Court observed as follows: It is undoubtedly true that the extent of the power conferred on the High Courts under Article 226 is much larger than they ever possessed before. But we have no hesitation in holding that it is not an unlimited power. In our opinion the words 'to any person' mean 'to any person to whom according to well-established principles writs like those mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave not been considered in that case. That case however, as far as I know has not been distinguished or dissented from at any subsequent stage and in fact has been followed several times even while considering the scope of Article 226 of the Constitution of India. The Calcutta High Court followed it in the case of AIR1952Cal315 (supra) as also in the case of Dubar Goala v. Union of India AIR1952Cal496 . The Madras High Court followed it in the case of AIR1954Mad549 (supra). The Punjab High Count followed it in the case of Chattar Singh v. State of Punjab. Kapur, J., who delivered the judgment in the Punjab case also relied upon AIR1952Cal496 (supra). The Madhya Bharat High Court followed that decision in the case of Laxman Singh v. Raj Pramukh of Madhya Bharat AIR 1953 MP 54. The Patna High Court in the case of B. B. Light Rly. Co. v. State of Bihar AIR1951Pat231 took a similar view though in that judgment reliance was not placed upon AIR1947Cal307 (supra). 28. Mr. Kunzru has cited some cases before me. I shall consider each one of them separately. The first case on which he has placed reliance is that of State of Orissa v. Madan Gopal [1952]1SCR28 . In this case the Oriss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nag 34. In that case the petitioner had obtained a mining lease of certain land from the C, P. Government for a period of thirty years. Subsequently he was also granted permission to use two fields lying contiguous to the mining area for the subsidiary purpose of dumping the soil from the mine on payment of a rent to the Government and a certain sum by way of compensation to the surface owners of the fields. In 1951 the State Government granted a prospecting licence to the respondent No. 2 (of that case) over some land including the two fields mentioned above. A writ petition in the Nagpur High Court was moved and a writ of mandamus was issued on the ground that the petitioner having been granted a valuable right under Section 218(3) of the C. P. Land Revenue Act, the Government could not create a hostile right in favour of other persons without giving adequate notice to the petitioner and without hearing him. 33. No other case has been cited by Mr. Kunzru on this point. In my opinion, in none at the cases on which he has placed reliance is has been decided that a right flowing from a contract can be enforced by the issue of a writ of mandamus. In my opinion there is no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land or as part of the purchase price of other land sold by him and the proposed works are sufficiently defined and the Court is of the opinion that damages will not provide an adequate remedy for the breach of contract. In Emdend and Watson's Building Contracts and Practice, 5th Edition, at page 170 the law on the point has been stated in the following words: Specific performance is an equitable remedy and it may be described as a mere enforcement of the contract in its substantiality where the common law remedy of damages would be totally inadequate and the performance of the Contract not unjust to the defendant. It is a discretionary remedy and will not be granted where damages are sufficient recompense. The Count will, however, order specific performance of a Building Contract against the general rule where the buildings to be erected are sufficiently well defined and where damages would not be an adequate remedy. Specific performance will not be granted if the party seeking it has by conduct disentitled himself to relief in equity, or where it would be harsh or unreasonable to grant, it. Again on page 171 it has been stated as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contract by damages. The third is that the defendant has by the contract obtained possession of land on which the work is contracted to be done. The rule on this subject is stated by Fry, L. J. in his work on Specific Performance, 3rd Edition pp, 44, 45, in substantially the same terms as those in which I have just stated it. 36. In my opinion the law in England is not different from that in our country and the provisions of Sections 12 and 21 of the Specific Relief Act have been framed in accordance with the English: decisions. It is therefore not quite correct to say that in England a writ of mandamus is refused in a contractual matter because relief can be obtained for the specific performance of the contract in a Court of equity. In my opinion, therefore, this argument of Mr. Kunzru is also not tenable. 37. In this connection Mr. Kunzru has invited! my attention to some English cases. He has placed reliance upon the case of Westwood v. Secretary of State (1863) 7 LT 736. That was not a case for the specific performance of a contract but was an action to recover the amount of certain extra works. 38. The next case on which reliance is placed is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in England as also in this country is that a statutory (contractual?) obligation cannot be enforced by means of a writ of mandamus. 44. In the end Mr. Kunzru has contended that even though it may not be possible to issue a writ of mandamus or any other prerogative writ in the circumstances of the present case there is nothing which prevents this Court from passing a suitable direction or order which would have the effect of doing justice between the panties. It is submitted that the powers given under Article 226 of the Constitution are not confined only to the issuing of prerogative writs but this Court has also the power to pass such orders in addition to the prerogative writs which it may in the circumstances of the particular case deem fid and proper to pass. It is true that under Article 226 of the Constitution a High Court cannot only issue prerogative writs but can also issue directions and orders. It is also true that the words direction or order are not synonymous with a writ. A perusal of Article 226 also shows that the directions, orders or writs that may be issued need not be elude generis with the prerogative writs (see Jeshingbhai v. Emperor AIR1950Bom363 ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made ......... Further, it will be noticed that the High Court here did not content itself with merely quashing the proceedings, it went further and directed the Regional Transport Authority, Tanjore, 'to grand Kb the petitioner permits in respect of the five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned the petitioner shall be at liberty to provide substitutes within such times as may be prescribed by the authorities.' Such a direction was clearly in excess of its powers and jurisdiction. 45. A study of the various decisions of the Supreme Count leads me to the conclusion that though the powers under Article 226 are very wide and are not confined to the mere issue of prerogative writs and though the High Counts can pass suitable orders or directions, the said orders or directions must be passed for the same object for which usually the prerogative writs are issued, I ..... 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