J.P. Gattani and Others vs The Delhi Police and Another

Rajiv Sahai Endlaw, J.—The petition impugns the decision/order dated 1st May, 2009 of the Respondent No. 3 Dy. Commissioner of Police (Traffic), in the matter of separate contracts entered into with each of the seven Petitioners of supply of cranes to the Delhi Police. The petition also seeks mandamus directing the Respondent No. 2 Joint Commissioner of Police (Traffic) to refund to the Petitioners the amount deducted from the bills of the Petitioners for the period from 1st May, 2009 to 30th June, 2009 on account of the decision/order dated 1st May, 2009 (supra). The Petitioners state that no copy of the decision/order dated 1st May, 2009 has been supplied to the Petitioners.

The claim of the Petitioners is, that their separate bids for supply of such cranes were accepted in the year 2004 and agreements entered into with each of them for a period of one year; that the said agreements were renewed from year to year till July 2010; that under order/decision dated 1st May, 2009 a condition was imposed that the drivers and helpers to be provided along with the cranes should be the same whose name and proof of identity was furnished by the Petitioners at the time of execution of the agreements in 2004. It is contended that prior thereto there was no such condition and the Petitioners were at liberty to change the drivers and helpers by intimation to the Respondents. The Petitioners contend that the renewal from time to time was on the same terms as originally agreed in 2004 and which did not provide any such restriction. The Petitioners thus contend that the restriction so imposed is in breach of the contract and the Respondents acting on the said restriction refused to take service of the cranes with different drivers and helpers and on the contrary imposed penalty on the Petitioners for non-supply of cranes with the drivers and helpers particulars whereof had been furnished initially and deducted the same from the bills of the Petitioners.

The counsel for the Petitioners agrees that the writ petition essentially is for recovery of the monies claimed to be due under the contract. The counsel for the Petitioner has been asked to show the documents by which the contract was extended from time to time on the same terms & conditions as contended. The counsel states that there is no such document but the understanding was that the renewal was on the same terms and conditions as before. He further contends that in fact no such condition was imposed after 30th June, 2009 also, though the contract with the Petitioners were renewed till July, 2010. On enquiry, it is informed that the Petitioners since July, 2010 are not supplying the said cranes to the Respondents.

Finding the dispute to be contractual and the relief being for payment of monies stated to be due under the contract, it has been enquired from the counsel for the Petitioners as to how the writ remedy is maintainable and as to why the Petitioners ought not to be relegated to the remedy of suit/arbitration.

The counsel for the Petitioners refers to Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, to contend that writ petitions are maintainable in contractual matters also.

The Supreme Court in Harbanslal Sahnia (supra) though noticed the principle of the writ being not maintainable for the reason of availability of alternative remedy opined that the writ in that case was maintainable because of the right sought to be enforced therein was a Fundamental Right and because there was a failure of principles of natural justice. Further that was a case of termination of dealership and the Court was approached to interfere with such termination. There was thus a sense of urgency in the matter.

On the contrary, the present is a case merely for recovery of money and which money is stated to have fallen due more than two years prior to the institution of the petition. The Petitioners now for the last more than one year are not even under contract with the Respondents.

The Supreme Court in Kisan Sahkari Chini Mills Ltd. and Others Vs. Vardan Linkers and Others, has held that the writ remedy in contractual matters can be allowed only where an element of public law is involved. No such element of public law is found in the present case. On the contrary, there being no document or renewal in writing, the adjudication of the claims of the Petitioners would entail adjudication of the terms and conditions on which the contract was renewed, and which is a disputed question of fact and adjudication whereof is best left to the Civil Court rather than in a writ jurisdiction (the counsel for the Petitioners states that there is no arbitration agreement between the parties.)

The petition is therefore found to be not maintainable and is dismissed with liberty to the Petitioners to avail of the appropriate remedy available by way of suit/arbitration for recovery of money. No order as to costs.