B K SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) On 29-12-1971 the petitioner who was an unemployed Engineer was given a contract by the Superintending Engineer, Flood Investigation Circle, Muzaffarpur, for earth-work in Gupta Bundh from chain 340 to 427. This was in accordance with the policy laid down by the Government contained in Annexure 1. A copy of the agreement dated 29-12-1971 is Annexure 2. Work order was issued on the same day and a copy of this order is Annexure 3. The work was to be completed by 31-1-1972. According to the petitioner's case he had completed the earthwork upto chain 382, when at the instance of some villagers an order of injunction was issued on 14-1-1972 in a title suit filed by them. The order of injunction was vacated by the trial Court on 19-2-1972 (Annexure 4). But in a miscellaneous appeal filed by the plaintiff again an order of injunction was made on 10-5-72. A copy of the appellate court's judgment is Annexure 5. A civil revision was filed in this Court, a copy of which application is Annexure 6. This civil revision (No. 1125 of 1972) was allowed by a learned Judge of this Court on 22-1-1973. The injunction order was vacated. It is not necessary to refer to the letter of the Executive Engineer dated 19-1-1972 allotting work to one Karyanand Sahu. The main grievance of the petitioner in this writ application is that during the continuance of the injunction order he could not work and as soon as the injunction order was vacated by this Court on 22-1-73 he approched the authorities on 23-1-1973 for permitting him to complete the work, but they did not do it. On the other hand, by an advertisement published in the Indian Nation on 14-12-1972, a copy of which is Annexure 7, fresh tenders were invited including tenders in relation to Gupta Bundh. In this advertisement the earth work from chain 340 to 427 was also included. Tenders were opened on 4-1-1973 and ultimately a fresh contract was given to respondents 6 and 7. Thus the petitioner's grievance is that arbitrarily he was not allowed to perform his part of the contract and complete it. Arbitrarily and illegally his part of the work was given to respondents 6 and 7. On these allegations the prayer in the writ application is "to declare the allotment order and the agreement in respect of the work in question in favour of Respondents 6 and 7 as ultra vires, void and illegal, and be further pleased to issue a writ in the nature of a writ of mandamus commanding the Respondents Nos. 3 and 4 to grant adequate extension of time for completion of the work in question by the petitioner and honour, implement and act on agreement between the State Government and the petitioner at Annexure 2 and restrain the respondents from implementing and acting on the impugned agreement with Respondents Nos. 6 and 7". Cause has been shown in this case on behalf of respondents 2 to 5, who are the Chief Engineer, Superintending Engineer, Executive Engineer and the S. D. O., Tubewell, by filing a counter-affidavit and by the learned Standing Counsel No. 3 at the time of the hearing of the writ application. A separate counter-affidavit has been filed by respondent 6 and his case was argued by the learned Advocate General. Mr. Basudeva Prasad appeared in support of the rule.

(2.) In the counter-affidavit filed on behalf of respondents 2 to 5 reasons mentioned for not allowing the petitioner to complete his contract and for giving a fresh contract to respondents 6 and 7 are to be found in paragraphs 4, 8, 9 and 13 of the said counter-affidavit. In nutshell the stand taken therein is that the petitioner had attempted to do piecemeal earthwork upto chain 382 and he had also been paid for that work. It is no doubt true that he did approach respondent 3 with an application on 23-1-1973 to allow him operation of the work under his agreement executed for the work of Flood Damage Repair to Gupta Bundh, but then that agreement was executed in pursuance of the Central grant whose fund and target period had already expired upto June 1972. Therefore the 'petitioner was verbally informed that his contract had already been closed on account of the expiry of the period and fund for the work. It is further stated that the old design for widening, raising and strengthening of the Bandh had been dropped and fresh and different design with different specification had been drawn up which was being sought to be executed by him under a new agreement as it was essential to be so done. It is again repeated in paragraph 13 that the cost of the execution of the work entrusted to the petitioner was to be met out of the Central grant for a different work i. e. Flood Damage Repairs to Gupta Bundh, the time limit of which expired in June 1972. The work which was given to respondents 6 and 7 was of a different kind and could not be entrusted to the petitioner,

(3.) Without examining the legality or validity of the stand taken on behalf of respondents 2 to 5 in their counter-affidavit I shall assume in favour of the petitioner that he was illegally prevented from completing his work under the contract (Annexure 2). Thus the State and its officers committed breach of the contract. I shall also assume in favour of the petitioner that he was not responsible for the delay caused in the execution of the contract. He was helpless in the matter because from time to time injunction orders were issued. When ultimately the injunction order was vacated by this Court on 22-1-1973 he rightly approached the authorities for permitting him to complete the work. In spite of assuming all these facts in favour of the petitioner I do not feel persuaded to hold in this case that the fresh contract given to respondents 6 and 7 can be quashed by grant of a writ of certiorari or a writ of mandamus can be issued against respondents 1 to 5 commanding them to allow the petitioner to complete his contract. To do so, in my opinion, would be to decree a specific performance of contract in question though the petitioner was not entitled to such a decree in a Civil Court. At best in a Civil Court he would be entitled to get a decree for damages if he proved that the contract had been illegally broken by the State and its officers. I am conscious of the fact that under certain circumstances a writ of mandamus can issue to compel the authorities concerned to do certain acts even though they related to contractual rights. But in such a situation the contractual right of a petitioner is affected not merely by breach of contract on the part of the authorities concerned but also because of their violation of statutory duties. The matter stands on a different footing if the action which is taken by the authorities concerned is in violation to their statutory duties. In the instant case, however, it is clear on the fact and in the circumstances of this case that as between the two contracting parties to the contract, pure and simple, one of them is said to have committed a breach. As observed by the Supreme Court in C.K. Achutan v. State of Kerala, (AIR 1959 SC 490) in paragraph 8 at page 492, there is hardly any difference in that regard between the breach committed by a private party and the breach of contract brought about by the Governmental authorities. It is neither possible in law nor expedient that every breach of contract committed by the Governmental authorities should be remedied by issue of a writ of mandamus. If it were to be so, then in every case of breach of contract entered with various Departments of the Governments concerned a petitioner would be entitled to an order from this Court which will have the force of a decree or specific performance of contract which otherwise such a petitioner would not be entitled from a Civil Court. I am, therefore, definitely of the view that until and unless in the breach is involved violation of certain legal and public duties or violation of statutory duties to the remedy of which the petitioner is entitled by issuance of a writ of mandamus, mere breach of contract cannot be remedied by this Court in exercise of its powers under Article 226 of the Constitution.