MUKTI MAITRA Vs. STATE

JUDGEMENT

(1.) This writ petition was moved by a senior practising Advocate of this Court who is also a Senior Panelled Advocate of the State of West Bengal, for conducting cases both civil and criminal, against the inaction on the part of the State Government in the matter of payment of her bills which are payable by the State Government. The case of the petitioner is that in Nov. 1983 on being engaged by the State Government, the petitioner went to New Delhi for arguing a case on behalf of the State of West Bengal before the Supreme Court of India. The petitioner went to New Delhi on 12th Nov., 1983 by Air and returned to Calcutta on 21st Nov., 1983 in the similar manner. The petitioner had to purchase tickets from her own pocket. The petitioner's further case is that the petitioner was assured by the respondent that the petitioner would be provided with a car at the New Delhi Airport for taking her to Bangabhavan where it was alleged that her accommodation for staying at Delhi was already arranged. The petitioner went to "Bangabhavan" from New Delhi Airport by the Government vehicle and after arriving at "Bhangabhavan", the petitioner was surprised to see that no accommodation was available for her in the odd hours of the night on 12th Nov., 1983 and the petitioner had to make her own arrangement for her stay at New Delhi in some hotel. The petitioner immediately after return to Calcutta submitted two bills in the office of the Legal Remembrancer, Government of West Bengal - one in respect of airfare and other transport charges and the other in respect of the expenses for her stay at New Delhi during the period from 12th to 21st Nov., 1983. It was further stated that the petitioner had to spend large sum of money for her stay at New Delhi, but as the petitioner was told by the office of the Legal Remembrancer that the petitioner would not be entitled to get more than a sum of Rs. 50/- per day as hotel charges, she prepared the bill accordingly. The bill for her fees for attending the Supreme Court which was submitted, was paid in the early part of 1984. But the petitioner was not paid the bill in respect of her out of pocket expense namely air passage money and other transport charges as well as the expenses for lodging and fooding at New Delhi. The petitioner made various representations and also requested the Judicial Minister of the Government of West Bengal to make arrangement for the payment of her bills without any delay. By the letter No. 8234 dated 3-8-1984, the Legal Remembrancer, Government of West Bengal informed the petitioner that the bill of the petitioner for travelling expenses amounting to Rs. 1092/- for journey on 12th Nov., 1983 was duly passed by the office of the Legal Remembrancer on 14-12-1983, but the same could not be presented to the Pay and Accounts Office during the financial year 1983-84 due to the paucity of fund under the head "T.A." and that the Government has been moved for allotting extra grant for meeting with the billed amount, but no grant was received. Since then the respondent was remaining silent in the matter.

(2.) The petitioner appeared in person and contended that the action of the respondent in withholding the payment on the pretext of paucity of fund is unreasonable, unjustified and improper and that the petitioner is entitled to get the said amount which had already been duly passed with interest. The petitioner also alleged that even after the letter of the Legal Remembrancer dated 3-8-84, large sums of money have been paid to various lawyers, but the petitioner's bill remained unpaid. Mr. Tarun Kumar Ray, learned advocate on behalf of the respondent, stated on instruction that budget grant under head "T.A." for the office of Legal Remembrancer was submitted to the Government for the year 1984-85 and the allotment under that head for the year 1984-85 was received. Further, the additional grant for the said purpose was also received. It was further stated that under Government Order No. 13461-J.F. dated 2-1-85 grant for Rs. 19,000/- 59-20-84 had been released which was received by the office of the Legal Remembrancer only on 10-1-85 and that action was being taken to process the bills by Pay and Accounts Office, Calcutta and that on receipt of the cheque from the Pay and Accounts Office, it would be delivered to the petitioner. Such instruction was received by the petitioner in writing on 14th Jan., 1985. The petitioner also produced a Memo No. 10450/I-A dated 26-12-84 by which the petitioner was again requested to attend the Supreme Court for appearing on behalf of the State of West Bengal on 7-1-85 and that the petitioner was informed by the said letter that as regards the petitioner's pending bill, steps would be taken for payment as soon as the grant sought for would be received. The petitioner further contended that in spite of receiving the grant from the State of West Bengal, the office of the Legal Remembrancer had not taken any steps to make payment of the bills which are pending. This writ application was not opposed by the learned Advocate appearing on behalf of the respondent in this behalf and excepting handing over the copy of the written instruction, the learned advocate appearing on behalf of the State very fairly took the stand that the said learned Advocate had nothing to comment and fairly stated that the matter is left at the discretion of this Court.

(3.) In this case, the petitioner prayed for a Mandamus commanding the respondent to make payment forthwith against the bills which are pending before the respondent. Now the question is whether such a relief could be given in writ proceeding. Normally the High Court does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or tort to pay amount of money to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. In the instant case, the respondent had admitted that the amounts claimed by the petitioner are payable and that the respondent would pay the same after necessary grant is being made by the State Government in favour of the Office of the Legal Remembrancer and as a matter of fact such a grant had already been made, but the respondent had not paid the same in spite of repeated requests and even though payments have been made to other Advocates, but the petitioner has been discriminated in the matter. It is now well established principle of law that the Government cannot act arbitrarily at its sweet-will and that every activity of the Government must have a public element in it and it must therefore be informed with reasons and guided by public interest and that such activities will be liable to be tested for their validity on the touch-stone of reasonableness and public interest and if it fails to satisfy the either test, it would be unconstitutional and invalid. The State Government cannot act arbitrarily even though the matter arises out of a contractual obligation. In this connection reference may be made to the decision of the Supreme Court of India in the case of Hindusthan Sugar Mills v. State of Rajasthan reported in AIR 1981 SC 1681 wherein it was held that the Government should honour its legal obligation arising out of contract and should not drive the citizen Concerned to file a suit for recovery of the amount. It was further held that in a democratic society governed by the Rule of Law it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. In view of the principles laid down by the Supreme Court in the above case, the State Government is bound to make the said payment to the petitioner who had made such expenses from her pocket for the purpose of conducting a case for and on behalf of the State of West Bengal and that when grants were made by the State Government in favour of the Legal Remembrancer for meeting such expenses, it is no longer open to the State Government to withhold the same after all, the petitioner is a senior panelled Advocate of the State Government and there could not be any justification on the part of the respondent to withhold the same amount to the petitioner. Considering the facts and circumstances of the case and in view of the above decision of the Supreme Court, the petitioner is entitled to get relief in the writ petition and particularly in view of the fact that when it is admitted by the respondent that the said amount is payable, but could not be paid on account of paucity of fund, but when funds were available to the respondent, the respondent did not pay to the petitioner. The petitioner paid money from her own pocket for the purpose of purchasing the air ticket for meeting the transport expenses as also the expenses incurred by her for her stay at New Delhi for conducting the case of the State of West Bengal. This case discloses a very peculiar state of affairs. It appears that action on the part of the respondent No. 1 was neither fair nor just and that the legitimate claim of the petitioner was being defeated without any reasonable ground which is on the face of it arbitrary. Accordingly, I make the Rule absolute and direct the respondent No. 1 to make payment in respect of the bills mentioned in the writ petition and which is admitted by the respondent as payable to the petitioner. Such payment is directed to be made within 30th Mar., 1985, namely within the current financial year. Let a writ in the nature of Mandamus do issue commanding the respondent to make payment of the said bills within 30th Mar., 1985. The Respondents shall pay the cost of the writ application assessed at 10 G.Ms.