AWADESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioners appellants had filed a writ petition being CWJC No. 2389 of 1996 (R) seeking writ of mandamus directing the respondents to release the payments with interest in their favour for the various contract jobs executed by them during the period 1990 91 and 1991 92. The writ petition having been dismissed by the Bench of the learned Single Judge, the writ petitioners have filed the present Letters Patent appeal.

(2.) THE grievance of the petitioners appellants is that the Government has made a contract with them for construction works, including repairs, alterations, painting and supply of materials and although they have performed their part of the contract, but the Government has failed to discharge their own obligations under the said contract. Therefore, it is submitted that appropriate directions be issued to the respondents for payment of the amount due from it under the contract.

(3.) THE contract between the Government and the petitioners appellants is a non statutory contract. The position is settled that non statutory contracts cannot be enforced by this Court under Article 226 of the Constitution of India. It is not necessary to cite all the cases in this respect, but for the purpose of disposal of the present case, it is sufficient to cite the following cases decided by the Supreme Court. In Bareilly Development Authority v. Ajay Pal Singh : [1989]1SCR743 , the Supreme Court has held as under: There is a line of decisions where the contract entered into between the State and the persons aggrieved is non statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple. Radhakrishna Agarwal v. State of Bihar : [1977]3SCR249 , Premji Bhai Parmar v. Delhi Development Authority : [1980]2SCR704 and D.F.O. v. Biswanath Tea Co. Ltd. : [1981]3SCR662 . In State of U.P. v. Bridge and Roof Co. (India) Ltd. : AIR1996SC3515 . the Supreme Court reiterated the same view declaring that this Court under Article 226 of the Constitution of India can neither enforce any of the provisions of the contract, nor can issue any direction in connection therewith. The relevant portions of that decision are reproduced herein below: Firstly, the contract between the parties is a contract in the realm of private law. It is not a statutory contract. It is governed by the provisions of the Contract Act or, may be, also by certain provisions of the Sale of Goods Act. Any dispute relating to interpretation of the terms and conditions of such a contract cannot be agitated, and could not have been agitated, in a writ petition. That is a matter either for arbitration as provided by the contract or for the Civil Court, as the case may be. Whether any amount is due to the respondent from the appellant Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a wit petition.... Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of Sub clause (4) of clause 70 of the contract is again not a matter to be agitated in the writ petition. That is again a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the Civil Court, as the case may be. In this connection, the Supreme Court in Assistant Excise Commissioner and Ors. v. Issac Peter and Ors. , has held as under: : [1994]2SCR67 It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts.