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Judgment
This writ petition is filed by the petitioner under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents to disburse him a sum of Rs.23,78,066/-, claiming it as based on the decision taken on the joint meeting of all the respondents on 22.09.2019 as evident from Ext.P13 letter dated 07.06.2019 issued by the 2nd respondent to the 3rd respondent, and also by relying on Ext.P4 minutes of the meeting of the 1st respondent Grama Panchayat held on 23.07.2010, Ext.P6 decision of the 1st respondent dated 27.02.2019 and Exts.P8 to P12 communications of different dates in between the respondents.
Going by the averments in the writ petition, the 3rd respondent, Goshree Islands Development Authority (‘GIDA’ for short), had introduced a Master Plan for the development of Ernakulam city and based on it sanctioned the proposal submitted by the 1st respondent Mulavukad Grama Panchayat, to execute certain civil works such as concreting of footpaths, tarring works, etc. inside the Panchayat and intimated the same to 2nd respondent by way of Ext.P1 letter dated 14.07.2010. The petitioner is a petty contractor who obtained a contract for concreting 12 footpaths for a sum of Rs.33,77,519/- and tarring work of Mulavukadu main road for Rs.8 lakhs, totalling the work for a sum of Rs.41,77,519/- from the 1st respondent.
The petitioner pleads that he had completed the work to the satisfaction of all the respondents within time, and as per his calculation a sum of Rs.41,77,519/- was due to him from the respondents. The said amount was admitted by the respondents also. Though various representations have been submitted by the petitioner to the respondents, it invoked no response. Finally, on 29.11.2017, the petitioner submitted Ext.P2 representation to the 1st respondent, and the petitioner was issued with Ext.P3 acknowledgement of the same date. The petitioner hails from a poor family, and he has completed the work by availing loans from a bank and from a third person. The gold ornaments of his wife were also sold for that purpose. Now the petitioner has been facing revenue recovery proceedings due to non-payment of the loan amount.
The petitioner earlier filed W.P.(C)No.1039 of 2018 before this Court seeking a direction to disburse the money. In that writ petition, respondents 1 and 2 filed a counter affidavit stating that the 3rd respondent had earmarked Rs.44 lakhs for 13 civil works within the Panchayat area, in it’s meeting held on 23.07.2010. The 3rd respondent also filed a counter affidavit in that writ petition stating that the 3rd respondent, GIDA, is ready to disburse the bill amount to the Panchayat as and when the Panchayat certifies the completion of the work done by the petitioner and submission of the bill. By Ext.P5 judgment dated 18.12.2018, this Court directed the respondents to pay Rs.17,99,433/- to the petitioner. In that judgment, it was further ordered that with respect to the remaining amount, necessary steps shall be taken by the respondents without any delay, for which the 2nd respondent shall constitute a joint meeting of respondents 3 and 4 within one month and finalise the proceedings within one month thereafter.
The petitioner states that he submitted a representation to the 1st respondent and as per Ext.P6 decision dated 27.02.2019 of the 1st respondent, it was unanimously decided to pay a sum of Rs.33,76,866/- to the petitioner. When the respondents failed to pay the money, the petitioner filed Con.Case (C)No.2002 of 2019, and thereafter the said amount of Rs.17,99,433/- was given to the petitioner during the pendency of the contempt petition. Accordingly, this Court by Ext.P7 judgment dated 14.08.2020 closed the contempt petition, leaving liberty to the petitioner to work out the remedy in accordance with law.
The petitioner further states that respondents 1 and 2 issued repeated letters to the 3rd respondent to release the entire money to the petitioner. Ext.P8 is one such letter dated 14.03.2019 issued by the 2nd respondent to the 3rd respondent. Ext.P9 letter dated 15.08.2019 issued by the 4th respondent, Executive Engineer, PWD, to the 2nd respondent stating that the entire bill has been submitted to the 2nd respondent and to take necessary steps for disbursing the money. Ext.P10 is another letter dated 30.01.2019 issued by the 4th respondent to the 2nd respondent for disbursal of money. Ext.P11 is another letter dated 26.11.2019 issued by the 4th respondent to the 2nd respondent for the very same purpose. Ext.P12 is the letter dated 05.11.2019 issued by the 2nd respondent to the 3rd respondent to disburse the money to the petitioner.
The petitioner states that as directed by this Court, the 2nd respondent had convened a joint meeting of the officials of GIDA, PWD and the petitioner on 22.09.2019, wherein the officials of the Panchayat and PWD had unanimously found that the petitioner had carried out the work and the amount has to be given to the petitioner. This fact can be seen from Ext.P13 letter dated 07.06.2019 issued by the 2nd respondent to the 3rd respondent. However, no further steps have been taken to disburse the money. In such circumstances, the petitioner has approached this Court with the writ petition.
The 3rd respondent filed a counter affidavit dated 16.10.2021, opposing the reliefs sought for in the writ petition, and producing therewith Exts.R3(a) to R3(k) documents. In the counter affidavit filed by the 3rd respondent, it is inter alia, contended that the 3rd respondent was always willing and ready to disburse the bill amount to the 1st respondent Panchayat for the work covered in Ext.P1 as and when the 1st respondent certifies the completion of the work done by the petitioner upon submission of the original bills, measurement books along with the Resolution of the Panchayat Committee regarding the completion of the work. However, the 1st respondent had failed to certify the completion of the work mentioned in Ext.P1, following the procedures and also to submit the original bills, measurement book, certification of work and Resolution by the Panchayat Committee to the 3rd respondent. As far as the completed projects are concerned and in respect of which the original bills and other documents as mentioned above were submitted by the Panchayat, GIDA officials inspected the work site and accordingly sanctioned the payment to the Panchayat for the said work. The 3rd respondent further contended that due to non-submission of original bills, measurement book and certification of completion of work following the procedure of Resolution of the Panchayat Committee, the 3rd respondent is unable to ascertain whether the work was properly executed by the petitioner and therefore, it is not in a position to disburse the amount claimed by the petitioner. It is also contended by the 3rd respondent that even if the petitioner has completed the work in a time-bound manner to the satisfaction of the 1st respondent, till date, the 3rd respondent has not obtained the aforesaid original records. From Ext.P3, it is evident that the petitioner submitted Ext.P2 representation dated 18.06.2013 to the Panchayat only in the month of November 2017. No explanation was offered by the petitioner for this delay in submitting Ext.P2 representation.
It is further contended by the 3rd respondent that there is no privity of contract between the 3rd respondent and the petitioner. In the meeting held in the office of the 1st respondent on 22.02.2019, the representatives of the 3rd respondent informed the 1st respondent that they will take necessary action as and when the original bills, including measurement books, are submitted, satisfying all formalities and conditions stipulated. However, the 2nd respondent submitted copies of documents received from the 4th respondent without certification of completion of work, following the procedure. Therefore, the 3rd respondent was not willing to disburse the money to the 1st respondent. The documents received by the 3rd respondent from the 1st respondent were forwarded to the technical consultant for his expert opinion. An inspection was later conducted on 08.04.2019 by the team comprising the officials of the 3rd respondent, Panchayat officials, and the ward member concerned to enquire into the details of the work. Out of 12 work sites covered in Ext.P1, four sites could not be identified by the inspection team. The Ward Member concerned stated that 3 works were carried out with the Panchayat funds in recent years and one work was not seen implemented at the site. The remaining 4 works are seen to have been executed. Thereafter, the 3rd respondent requested the 2nd respondent to resubmit the application with documents after rectifying the defects with necessary certification of the 2nd respondent with all proper documents. Accordingly, the documents received by the 3rd respondent were returned to the 2nd respondent for rectification of the defects. However, the 2nd respondent had resubmitted the documents only on 07.06.2019, without rectifying the defects in the documents and the shortcomings pointed out by the 3rd respondent. Therefore, the 3rd respondent returned those documents along with Ext.R3(g) letter dated 09.07.2019, intimating that the details required for releasing the funds are not submitted and hence the 3rd respondent is not in a position to verify the bills and the works executed.
The 3rd respondent further states that prior to making payment of Rs.17,99,433/- for the 1st respondent and the District Collector, who was the then Secretary of the 3rd respondent, requested the Director of Vigilance and Anti-Corruption Bureau to conduct an enquiry with respect to the disputed work. It is further contended by the 3rd respondent that, by Ext.P5 judgment, this Court passed an order on merits and partly allowed the prayer of the petitioner. Now the present writ petition filed by the petitioner for the amount covered in Exts.P1 and P2 is not at all maintainable on the principles of res judicata. The 3rd respondent further states that the claim of the petitioner is barred by limitation as well. It is the further contention of the 3rd respondent that since the writ petition involves serious disputes regarding the question of facts which requires consideration of evidence, the proper remedy of the petitioner is to file a civil suit.
The 4th respondent filed a counter affidavit dated 28.10.2021 in the writ petition, producing therewith Ext.R4(a) document stating that the petitioner completed all the works, and the bills and other connected documents for making the payment to him had already been submitted to the 1st respondent by the 4th respondent on 28.08.2011 itself. The PWD had already informed the 2nd respondent that the PWD has no objection in making payment to the contractor.
Respondents 1 and 2 filed a counter affidavit dated 20.11.2021, opposing the reliefs sought for in the writ petition, and producing therewith Exts.R1(a) to R1(c) documents. In the counter affidavit filed by respondents 1 and 2, it is contended that Ext.P1 is only an estimated cost for each work to be carried out and the petitioner cannot claim disbursement of the entire amount mentioned in Ext.P1 letter. The petitioner failed to produce any evidence for execution of the work to the tune of Rs.41,77,519/-. The Panchayat is not in receipt of any representation, except Ext.P2 from the petitioner. The role of the Panchayat in the matter is only as a connecting link between the respondents 2 and 4 and the petitioner. It is the 3rd respondent who has to release the amount for the work, and the executant of the same is the 4th respondent. An amount of Rs.17,99,433/- was disbursed to the petitioner on 13.08.2020, after forwarding the bond executed by the petitioner to the 3rd respondent, in view of the interim order dated 11.12.2019 passed by this Court in Con.Case(C)No.2002 of 2019. However, on perusal of the file, it is noted that the petitioner was disbursed with an excess amount of Rs.1,03,580/-. A table showing the details of the difference in the bill amount and paid amount was also given in the counter affidavit filed by respondents 1 and 2. It is the case of the respondents 1 and 2 that Exts.P9 to P12 letters are the communications between the respondents as the steps towards complying with the direction in Ext.P5 judgment.
Respondents 1 and 2 further state that by Ext.R1(b) letter dated 03.01.2020 addressed by the 3rd respondent to the 2nd respondent, it was informed that the 3rd respondent had requested the Director of Vigilance and Anti-Corruption Bureau to conduct an enquiry regarding the allegation of non execution of work sanctioned as per Ext.P1 letter dated 14.07.2010 and covered by Ext.P5 judgment. In view of Ext.R1(b), the Committee of the Panchayat once again deliberated the issue in the meeting held on 08.11.2021; and it was decided to defer further payment to the petitioner and await the outcome of the vigilance enquiry mentioned in Ext.R1(b). However, the outcome of the vigilance enquiry requested by the 3rd respondent has not been communicated till date.
Heard the learned counsel for the petitioner, the learned Standing Counsel for Mulavukad Grama Panchayat for respondents 1 and 2, the learned Standing Counsel for the 3rd respondent and the learned Government Pleader for the 4th respondent.
The learned counsel for the petitioner vehemently argued that the petitioner was entrusted with 13 works in the 1st respondent Mulavukad Grama Panchayat area, which are detailed in Ext.P1 letter dated 14.07.2010 issued by the 3rd respondent to the 2nd respondent. In Ext.P5 judgment, this Court, apart from directing the respondents to take steps to release the admitted amount of Rs.17,99,433/-, directed the respondents to conduct a joint meeting of respondents 3 and 4 by the 2nd respondent and to finalise the proceedings within one month thereafter. From Ext.P6 minutes of the meeting held on 27.02.2019 of the 1st respondent Panchayat, it is evident that the Committee of the Panchayat had satisfied that the petitioner had completed all the 12 works satisfactorily, totalling an amount of Rs.33,76,866/-. From Ext.P8 letter dated 14.03.2019 issued by the 2nd respondent to the 3rd respondent, it is also clear that the Panchayat had decided to release an amount of Rs.33,76,866/- to the petitioner. All subsequent communications between the respondents are to the above tune and therefore respondents 1 to 3 cannot now take a stand that the entire due amount was released to the petitioner. By pointing out Ext.R3(d) counter affidavit dated 01.12.2018 filed by respondents 1 and 2 in W.P.(C)No.1039 of 2018, the learned counsel argued that a contention as that taken by respondents 1 and 2 in the present counter affidavit was not there in that counter affidavit. By pointing out Ext.R3(f) letter dated 07.06.2019 issued by the 2nd respondent to the 3rd respondent, the learned counsel argued that the decision of the Panchayat Committee meeting held on 27.02.2019 regarding the release of the entire amount on satisfactory completion of the 13 works by the petitioner is stated therein. The learned counsel relied on the judgment of the Apex Court in Punjab National Bank v. Atmanand Singh [(2020) 6 SCC 256] and that of a learned Single Judge of this Court in Sree Sankara National Institute of Educational Trust v. Union Bank of India [2021 (6) KHC 65], to argue that a writ petition under Article 226 of the Constitution of India is maintainable, even if an alternative remedy is available. The learned counsel further argued that respondents 1 and 2 in their counter affidavit gave false statement regarding the release of the amount to the petitioner and therefore they are liable to be nonsuited.
The learned Standing Counsel for Mulavukad Grama Panchayat argued that the admitted amount in the earlier round of litigation was only Rs.17,99,433/- and that amount was subsequently released to the petitioner. In fact, the said amount is in excess of Rs.1,03,580/-, than the actually entitled amount by the petitioner.
The learned Standing Counsel for the 3rd respondent argued that since the disputed question of facts is involved in the present case, the proper remedy for the petitioner is a civil suit. Moreover, the claim of the petitioner was already considered in the previous round of litigation and the present writ petition is barred by principles of res judicata. The petitioner has raised a bogus claim in respect of which a vigilance enquiry was also requested by the 3rd respondent. The learned Standing Counsel pointed out that though in the earlier round of litigation, the claim of the petitioner was for Rs.33,77,519/-, in the present writ petition it is enhanced to more than Rs.41 lakhs, and after deducting the amount already received, the petitioner now claims an amount of Rs.23,780,66/-.
The learned Government Pleader submitted that the 4th respondent has nothing to do with the claim of the petitioner. The 4th respondent had already handed over the particulars of the work completed by the petitioner to the 2nd respondent, and now the matter is to be decided in between the 2nd respondent and the 3rd respondent. However, the learned Government pleader by placing reliance on the judgments of the Apex Court in Joshi Technologies International INC v. Union of India [(2015) 7 SCC 728], Hindustan Petroleum Corporation Ltd. v. Dolly Das [(1999) 4 SCC 450], Kerala State Electricity Board v. Kurien E. Kalathil [(2000) 6 SCC 293], and the judgment dated 12.11.2025 in Civil Appeal No.6719 of 2012 which is a civil appeal by special leave filed by the appellant impugning the judgment of the High Court of Judicature for Rajasthan, Bench at Jaipur, submitted that since the dispute between the parties involves question of facts, a writ petition under Article 226 of the Constitution of India is not maintainable.
From the pleadings in the writ petition as well as in the counter affidavits filed by the contesting respondents as extracted above and from the materials on record, it is evident that essentially the dispute between the parties in the present writ petition pertains to a works contract entered into between the petitioner and the 1st respondent. The beneficiary of those works is the 1st respondent Panchayat. The sponsor of those works is the 3rd respondent, and it was executed under the supervision of the 4th respondent. Though several documents have been produced along the writ petition and also along with the counter affidavits, the terms of the works contract entered into between the petitioner and the 1st respondent, or if the works were assigned to the petitioner through a tender process, the terms of that tender are neither pleaded nor placed on record. When the petitioner contends that the total cost of the works assigned and completed by him was worth Rs.41,77,519/- and he received only an amount of Rs.17,99,433/-, respondents 1 and 2 would contend that the said amount paid to the petitioner as directed in Ext.P5 judgment not only covers the amount entitled by him for the completed work, but an excess amount of Rs.1,03,580/-. The 3rd respondent, while contending that there is no privity of contract between the 3rd respondent and the petitioner, further contends that the petitioner had not completed the works assigned to him and, in fact, no sufficient documents have been produced by the respondents 1 and 2 before the 3rd respondent to enable the 3rd respondent to decide on the claim of the petitioner. Moreover, in the inspection conducted by the expert of the 3rd respondent, they came to know that the works were not completed by the petitioner as pleaded in the writ petition. The 3rd respondent had requested the Vigilance and Anti-Corruption Bureau to conduct an enquiry in the matter. When the petitioner contends that his claim in the present writ petition is the amount entitled by him which was directed to be decided by way of the 2nd part of the direction in Ext.P5 judgment, which was in fact an admitted amount as evident from Ext.P6 minutes of the meeting of the Panchayat dated 27.02.2019 and also Ext.P8 letter dated 14.03.2019 issued by the 2nd respondent to the 3rd respondent, the stand of respondents 1 and 2 is that the admitted amount in Ext.P5 judgment was Rs.17,99,433/- and that amount was already released to the petitioner.
Before entering into the merits of these contentions raised by the parties, it would be appropriate to go through the principles that have been stated in the various judgments of the Apex Court regarding the maintainability of a writ petition under Article 226 of the Constitution of India in the matters wherein disputed questions of fact are involved. In Atmanand Singh [(2020) 6 SCC 256], the judgment relied on by the petitioner, the Apex Court, while considering an appeal from the Division Bench judgment of High Court of Judicature at Patna in respect of a writ petition filed by the respondent No.1 therein for a direction to the appellant Bank to pay his lawful admitted claims in terms of an agreement and also to deposit the income tax papers with immediate effect, held that when the petition raises question of facts of complex nature which may for their determination require oral and documentary evidence to be produced and proved by the concerned party and also because the reliefs sought is merely for ordering a refund of money, the High Court should be loath in entertaining such a writ petition and instead must relegate the parties to the remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justifiable in examining the claim of the petitioner on its own merits in accordance with law.
In Atmanand Singh [(2020) 6 SCC 256], the Apex Court referred to paragraph 10 of its earlier judgment in Babubhai Muljibhai Patel v. Nandlal Khodidas Barot [(1974) 2 SCC 706], and held thus;
"In the next reported decision relied upon by the respondent No.1 in Babubhai (supra), no doubt this Court opined that if need be, it would be open to the High Court to cross examine the affiants. We may usefully refer to paragraph 10 of the said decision which reads thus;
10.It is not necessary for this case to express an opinion on the point as to whether the various provisions of the Code of Civil Procedure apply to petitions under Art.226 of the Constitution. S.141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all proceedings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of Art.226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in the High Courts to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of the High Court, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under Art.226, it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Art.226. The High Court is not deprived of its jurisdiction to entertain a petition under Art.226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Art.226 the High Court has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition (see Gunwant Kaur v. Bhatinda Municipality [(1969) 3 SCC 769]. If, however, on consideration of the nature of the controversy, the High Court decides, as in the present case, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by the High Court in this respect."
(emphasis supplied)
This decision has noticed Smt. Gunwant Kaur (supra), which had unmistakably held that when the petition raises complex questions of facts, the High Court may decline to try a petition. It is further observed that if on consideration of the nature of the controversy, the High Court decides to go into the disputed questions of fact, it would be free to do so on sound judicial principles. Despite the factual matrix in the present case, the High Court not only ventured to entertain the writ petition, but dealt with the same in a casual manner without adjudicating the disputed questions of fact by taking into account all aspects of the matter. The manner in which the Court disposed of the writ petition, by no stretch of imagination, can qualify the test of discretion having been exercised on sound judicial principles.”
(Underline supplied)
In Sree Sankara National Institute of Educational Trust [2021 (6) KHC 65], relied on by the learned counsel for the petitioner, a learned Single Judge of this Court on the issue of refusal of the Bank to pay fixed deposit, on maturity, on finding that the relief in the writ petition does not involve any detailed analysis of the disputed facts entertained the writ petition filed under Article 226 of the Constitution of India and granted the relief in favour of the petitioner therein.
While coming to the judgments pointed out by the learned Government Pleader, in Joshi Technologies International [(2015) 7 SCC 728], on the issue whether a mandamus can be issued by the Court to the parties to amend the contract and incorporate provisions therein, the Apex Court held thus;
“69.The position thus summarised in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion:
69.1.The Court may not examine the issue unless the action has some public law character attached to it.
69.2.Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration.
69.3.If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination.
69.4.Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.
70.Further, the legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to contracts entered into by the State/public authority with private parties, can be summarised as under:
70.1.At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.
70.2.State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practise some discriminations.
70.3.Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 of the Constitution could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases the Court can direct the aggrieved party to resort to alternate remedy of civil suit, etc.
70.4.Writ jurisdiction of the High Court under Article 226 of the Constitution was not intended to facilitate avoidance of obligation voluntarily incurred.
70.5.Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the licence if he finds it profitable to do so : and he can challenge the conditions under which he agreed to take the licence, if he finds it commercially inexpedient to conduct his business.
70.6.Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.
70.7.Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if it can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.
70.8.If the contract between private party and the State/instrumentality and/or agency of the State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitution of India and invoking its extraordinary jurisdiction.
70.9.The distinction between public law and private law element in the contract with the State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract, this Court has maintained the position that writ petition is not maintainable. The dichotomy between public law and private law rights and remedies would depend on the factual matrix of each case and the distinction between the public law remedies and private law field, cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision-making process or that the decision is not arbitrary.
70.10.Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.
70.11.The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.”
(Underline supplied)
In Dolly Das [(1999) 4 SCC 450], on the issue of jurisdiction of the High Court under Article 226 of the Constitution of India, the Apex Court held that in the absence of constitutional or statutory rights being involved, a writ proceedings would not lie to enforce contractual obligation even if it is sought to be enforced against the State or to avoid a contractual liability arising thereto. In the absence of any statutory right, under Article 226 of the Constitution of India, cannot be availed to claim any money in respect of breach of contract, tort or otherwise.
In the judgment dated 12.11.2025 in Civil Appeal No.6719 of 2012 which is an appeal filed with special leave by the appellant therein, impugning the judgment of the High Court of Judicature for Rajasthan, Bench at Jaipur, whereby the appellant’s writ petition was dismissed on the ground of omission of the appellant to pursue the alternative remedy of appeal provided by the Customs Act, 1962, the Apex Court held thus;
“9.While deciding whether to entertain a petition under Article 226 bearing in mind the precedents in the field, a writ court ought to additionally notice the forum designated by the statute for the litigant to approach. This is necessary because the alternative forum that is provided by the statute has to be one which can dispense speedy and efficacious relief. However, as in the present case, if the statutorily designated alternative forum happens to be the high court itself whose jurisdiction under Article 226 is invoked and not any ordinary statutory functionary/tribunal, refusal to entertain the petition should be the rule and entertaining it an exception.
10.We may profitably refer, in this context, to the Constitution Bench decision in Thansingh Nathmal v. A. Mazid, Superintendent of Taxes. In Thansingh Nathmal (supra), this Court had the occasion to lay down a principle of law which is salutary and not to be found in any other previous decision rendered by it. The principle, plainly, is that, if a remedy is available to a party before the high court in another jurisdiction, the writ jurisdiction should not normally be exercised on a petition under Article 226, for, that would allow the machinery set up by the concerned statute to be bye-passed. The relevant passage from the decision reads as follows:
"The jurisdiction of the High Court under article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the article. But the exercise of the jurisdiction is discretionary; it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the court will not entertain a petition for a writ under article 226, where the petitioner has an alternative remedy, which, without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under article 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up."
(emphasis ours)
11.Since the appellant had a remedy by way of a reference before the High Court against the order dated 23rd June, 2000 of the CEGAT, we do not consider refusal to exercise discretion in favour of the appellant to be so fundamentally incorrect that interference is warranted.
12.That apart, the majority view in a previous Constitution Bench in A. V Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani reads thus:
“14...., we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to exhaust his statutory remedies before invoking the jurisdiction of the High Court under Article 226 of the Constitution. If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he cannot certainly be permitted to urge that as a ground for the Court dealing with his petition under Article 226 to exercise its discretion in his favour. Indeed, the second passage extracted from the judgment of the learned C.J. in Mohammed Nooh case with its reference to the right to appeal being lost ‘through no fault of his own’ emphasizes this aspect of the Rule.”
(emphasis ours)
In essence, this Court was of the opinion that once a petitioner has due to his own fault disabled himself from availing a statutory remedy, the discretionary remedy under Article 226 may not be available.
13.Although there is no period of limitation for invoking the writ jurisdiction of a High Court under Article 226, all that the courts insist is invocation of its jurisdiction with utmost expedition and, at any rate, within a “reasonable period”. What would constitute “reasonable period” cannot be put in a straight-jacket, and it must invariably depend on the facts and circumstances of each particular case. Nonetheless, the period of limitation prescribed by an enactment for availing the alternative remedy AIR 1961 SC 1506 provided thereunder in certain cases does provide indication as to what should be the “reasonable period” within which the writ jurisdiction has to be invoked.
14.In the present case, the order of the CEGAT was subjected to challenge by the appellant well after the prescribed period of limitation for seeking a reference by making an application under Section 130A of the 1962 Act (as it then existed). Although, an explanation was sought to be given by the appellant why the writ jurisdiction could not be invoked earlier, we are not impressed. The belated invocation of the writ jurisdiction of the High Court could not have been justified by the appellant by taking the plea of pursuing remedy elsewhere. Even otherwise, such an explanation could well have been offered in an application seeking condonation of delay in presentation of the application under Section 130A of the 1962 Act before the High Court. We have not found any provision in the 1962 Act which either expressly or by necessary implication excluded the provisions of Sections 4 to 24 of the Limitation Act, 196313. As such, in terms of Section 29(2) of the 1963 Act, the High Court in its reference jurisdiction could have well been approached with a request to condone the delay in presentation of the application under Section 130A of the 1962 Act.
15.In our considered opinion, the appellant having had a remedy before the High Court in a separate jurisdiction which was equally efficacious, he indulged in the (mis)adventure of invoking its writ jurisdiction which was rightly not entertained.”
(Underline supplied)
In Kurien E. Kalathil [(2000) 6 SCC 293], the Apex Court, on a claim made by the contractor based on work tendered to him for construction of a dam, held thus;
“10.We find that there is a merit in the first contention of Mr Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature.
11.A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies.”
(Underline supplied)
The principles that can be summarised, as far as the maintainability of a writ petition under Article 226 of the Constitution of India, on contractual matters, based on the aforementioned judgments are;
1.The High Court is not deprived of its jurisdiction to entertain a writ petition under Article 226 of the Constitution of India, merely because in considering the petitioner's right of relief, questions of fact may fall to be determined.
2.In a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the petitioner on its own merits in accordance with law. In such cases, the High Court has jurisdiction to try issues both of fact and law.
3.The High Court may not examine the issue under Article 226 of the Constitution of India, unless the action has some public law character attached to it.
4.Exercise of the jurisdiction under Article 226 of the Constitution of India is discretionary, but that discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in a writ petition, the High Court may decline to try a petition.
5.The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract would not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration, if provided for in the contract.
6.Whether any amount is due and if so, how much and refusal of one of the contracting parties to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. Ordinarily, when a disputed question of fact is involved, the remedy of the petitioner is not a writ petition under Article 226 of the Constitution of India by invoking the extraordinary jurisdiction of this Court. In such cases, the remedy available to the petitioner is a civil suit or, if any other alternative remedy is provided in the contract between the parties, to opt for that remedy.
7.While deciding whether to entertain a petition under Article 226 of the Constitution of India, a writ court ought to additionally notice the forum designated by the statute for the litigant to approach. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit, by entertaining a petition under Article 226 of the Constitution, the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up.
8.The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.
9.Once a petitioner has, due to his own fault, disabled himself from availing a statutory remedy, the discretionary remedy under Article 226 of the Constitution of India may not be available.
10.Although there is no period of limitation for invoking writ jurisdiction of the High Court under Article 226 of the Constitution of India, the invocation of such jurisdiction must be within a reasonable period.
While coming to the facts of the present case, in the light of the above settled principles stated above, this Court noticed that there is factual disputes between the petitioner and the respondents about the amount due to the petitioner for the works undertaken by him, on the basis of a contract obtained by him from the 1st respondent Panchayat. In the earlier round of litigation, in W.P.(C)No.1039 of 2018, the claim of the petitioner was for Rs.33,77,519/- for 13 items of works. In that writ petition itself, the stand of the Panchayat was that the admitted amount due to the petitioner was Rs.17,99,433/-. In view of the said admitted amount stated by the Panchayat, the learned Single Judge of this Court by Ext.P5 judgment, directed the Panchayat to pay that amount to the petitioner. As far as the disputed amount is concerned, this Court in Ext.P5 judgment has only directed the parties to arrive at an amicable decision by a joint meeting. Therefore, there was no necessity for this Court to consider the jurisdiction of this Court to entertain a writ petition under Article 226 of the Constitution of India, in respect of matters involving factual disputes, while passing Ext.P5 judgment. It is true that in Ext.P6 as well as in Ext.P8 documents, the amount due to the petitioner was stated as Rs.33,76,866/-. But the stand of the 3rd respondent, who has to release the amount to the Panchayat, is that the petitioner had not completed the works entrusted to him and even a vigilance case was requested to be registered in respect of the non-completion of the works.
Apart from the above, it can be seen from Ext.P2 representation submitted by the petitioner before the Panchayat, the said representation refers to a letter dated 18.06.2013. The work mentioned in Ext.P1 was sanctioned on 14.07.2010. The petitioner approached this Court with the writ petition for the first time in the year 2018, i.e., W.P.(C)No.1039 of 2018. Under those circumstances, the contesting respondents contend that the claim of the petitioner is barred by limitation.
The petitioner claims that the present writ petition is not barred by principles of res judicata, since the amount claimed by him at present is not the one decided in Ext.P5 judgment and, on the other hand, it is the amount directed to be ascertained in the 2nd part of Ext.P5 judgment. It is also discernible from the materials on record that in W.P.(C)No.1039 of 2018, the claim of the petitioner was only for Rs.33,77,519/-. His claim in Con.Case(C)No.2002 of 2019 was Rs.44 lakhs, as seen from Ext.P7 judgment. From the pleadings in the present writ petition, it is not clear as to what happened to the remaining claim, since the claim of the petitioner in the present writ petition is only Rs.41,77,519/. Therefore, from the materials placed on record and from the submissions made at the Bar, it can only be said that the amount claimed in the present writ petition by the petitioner is a disputed question of fact which can be decided only by adducing evidence.
As already mentioned, the petitioner is claiming relief in the present writ petition against all the respondents. But the 3rd respondent contends that there is no privity of contract between the petitioner and the 3rd respondent. Similarly, the 4th respondent contends that his duty is only to supervise the work. But, the terms of the contract or tender by which the petitioner obtained the contract are neither pleaded nor produced before this Court. The relationship between the parties and their liability towards each other can be decided only by adducing full-fledged evidence. In such circumstances, I have no hesitation to hold that the present writ petition under Article 226 of the Constitution of India is not maintainable before this Court, and the proper remedy for the petitioner is a civil suit before the competent civil court.
Though, as mentioned, various contentions have been raised by the parties regarding the issue of res judicata and limitation, I am not entering into a finding on those aspects in this writ petition, since those issues are also mixed questions of law and fact, which require adducing of evidence to arrive at a right decision.
In the result, leaving open the right of the petitioner to approach the Civil Court for necessary reliefs, if he is otherwise entitled to the same, subject to the law of limitation and principles of res judicata, this writ petition filed on 29.04.2021 stands dismissed.