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Date of Decision: 9th December, 2014
SAISUDHIR INFRASTRUCTURES LIMITED ..... Appellant
Through: Mr. Arun Kathpalia, Mr. M.
Gireesh Kumar and Mr. Vishnu Kumar Jain, Advs.
Through: Mr. Jaswinder Singh and Ms. Shipra Shukla, Advs.
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
CM No.19118/2014 (for condonation of 16 days delay in filing the appeal)
JUDGMENT
1. We have heard the counsel for the appellant as well as the counsel for the respondents No.1 & 2 appearing on advance notice. Need is not felt to hear the respondent No.3 M/s. Indu Project Limited on the application. For the reasons stated, the delay in filing the appeal is condoned.
2. The application is disposed of. 2014:DHC:6880-DB LPA 753/2014 & CM No.19115/2014 (for directions)
3. This intra court appeal impugns the order dated 8th September, 2014 of the learned Single Judge of this Court of dismissal of W.P.(C) No.5897/2014 preferred by the appellant, giving liberty to the appellant to institute appropriate proceedings in accordance with law.
4. We have heard the counsel for the appellant.
5. The writ petition from which this appeal arises was filed, pleading:
(i) that the respondent No.3 M/s. Indu Project Limited was appointed as a contractor, by the respondent No.2 Director General of Married Accommodation Projects (MAP), Engineerin-Chief’s Branch, Integrated HQ of Ministry of Defence (Army), for construction of residential accommodation at a) Mamun (Pocket-4), b) Basoli, Mamun (Pockets-1&3), and c) at Damtal;
(ii) that the appellant / writ petitioner is the sub-contractor of the respondent No.3 for one portion of the aforesaid works;
(iii) that disputes arose between the respondent No.1&2 on the one hand and the respondent No.3 on the other hand and the respondents No.1&2 cancelled the appointment of the respondent No.3 as the contractor for the aforesaid works;
(iv) that material of the appellant / writ petitioner is lying at the said site;
(v) that the appellant / writ petitioner has learnt that the said material is being utilized for completing the works left by the respondent No.3;
(vi) that the appellant / writ petitioner asked the respondents No.1&2
(vii) however no response was received thereto;
(viii)that the appellant / writ petitioner filed W.P.(C) No.4083/2014 seeking a direction to the respondents No.1&2 to return the said material;
(ix) that the said writ petition was however withdrawn on 7th July,
2014 with liberty to file a representation and the writ petition was disposed of with a direction to the respondent No.2 to dispose of the said representation within four weeks of receipt thereof;
(x) that the representation so made by the appellant / writ petitioner was however rejected by the respondent No.2, on the grounds: (a) that the respondent No.3 was barred from subletting any portion of the contract without prior approval of the respondent No.2 and neither was any such approval sought nor given for appointing the appellant / writ petitioner as the sub-contractor; (b) that thus no cognizance of the appellant / writ petitioner as the sub-contractor can be taken; (c) that as per the terms and conditions of the contract, the respondents No.1&2 are at liberty to hold and retain in their hands all materials on site and to either sell or to use the same; (d) that the respondent No.3 was afforded an opportunity to take away the said material against furnishing non-revocable bank guarantee but the respondent No.3 did not avail of the said opportunity; (e) that as per the terms and conditions of the contracts, all materials brought to site, are to become the property of the respondents No.1&2 and cannot be removed, if not used and / or disposed of, till the completion of the work; (f) that the works had not been completed as yet. Aggrieved from the aforesaid, the writ petition from which this appeal arises, was filed.
6. The learned Single Judge has dismissed the writ petition observing that several disputed questions are involved including whether the contract between the appellant / writ petitioner and the respondent No.3 was approved by the respondent No.2 and the extent of machinery and material brought at site by the appellant / writ petitioner and the writ petition was not the appropriate proceeding where such disputed questions can be considered.
7. The appellant / writ petitioner, in the appeal, has not controverted that as per the contract between the respondent No.2 and the respondent No.3, the respondent No.3 was not entitled to remove the material brought at site. We have as such enquired from the counsel for the appellant / writ petitioner, as to how the appellant / writ petitioner, who claims to be a subcontractor, can have better rights against the respondents No. 1 and 2 principal than the contractor itself.
8. The counsel for the appellant / writ petitioner states that since the respondents No.1&2 do not recognize the appellant / writ petitioner as a subcontractor, the respondents No.1&2 are not entitled to enforce the conditions in the contract with the respondents No.1&2 and since the material belongs to the appellant / writ petitioner, the appellant / writ petitioner is entitled to remove the same and the respondents No.1&2 are not entitled to retain the same.
9. We are unable to agree. The appellant / writ petitioner, who claims to have entered into a back to back contract with the respondent No.3, was aware of the terms and conditions of the contract between the respondent No.2 on the one hand and the respondent No.3 on the other hand and cannot now be heard to claim contrary thereto. The appellant / writ petitioner, as a sub-contractor of the respondent No.3, is deemed to have also consented to the terms and conditions specially those cited by the respondent No.3 in the order dated 12th August, 2014 rejecting the representation of the appellant / writ petitioner.
10. Even otherwise, the matter in issue is a purely contractual one, having no element of public law and the remedy under Article 226 of the Constitution of India, according to us is not available. The Supreme Court in Kerala State Electricity Board Vs. Kurien E. Kalathil (2000) 6 SCC 293 held that interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition, being in the realm of private law and the fact that one of the parties to the agreement is a statutory or a pubic body will not of itself affect the principles to be applied. It was held that every act of a statutory body need not necessarily involve an exercise of statutory power. Similarly, in Godavari Sugar Mills Ltd. Vs. State of Maharashtra (2011) 2 SCC 439 it was held that normally a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of contract and the aggrieved party will have to agitate the question in a Civil Court. It was further held that only where the lis has a public law character or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy will be allowed.
11. We therefore do not find any merit in the appeal and dismiss the same. We clarify that none of the observations contained herein will have any binding effect in the appropriate proceedings taken out by the appellant / writ petitioner. No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE DECEMBER 09, 2014/bs..