State of Nagaland and Another vs Chosayi

H.K. Sema, J.—These two writ appeals has been directed against the common judgment and order dated 12.05.2000 passed by the learned Single Judge. By the aforesaid order the learned Single Judge disposed of the aforementioned two writ petitions namely, W.P.(C) No. 26(K)/ 99 and W.P.(C) No.27(K)/99. By the impugned judgment and order, the learned Single Judge directed the respondent Government to release the balance amount against the work in question to the writ petitioners as early as possible at any date not later than 3 months from the date of receipt of the order. Hence, these writ appeals have been preferred by the state of Nagaland.

While issuing notice of motion, this Court by order dated 14.06.2000 suspended the payment to be made to the writ petitioners pursuant to the aforesaid judgment. It is because of this interim order, no payment has been made till date despite the direction issued by the learned Single Judge for making payment within three months from the date of receipt of the order impugned.

We have heard Mr. A.R. Borthakur, learned Advocate General, Nagaland assisted by Mr. P. Khataniar, Govt. Advocate, Nagaland as well as Mr. D.K. Mishra, learned Senior Advocate Assisted by Mr. I. Lanngjam for the respondents.

The facts leading to filing of the present appeals may be recited in compendium. A contract work was awarded by the appellant vide work order No.EST/76/89-90/876-81 dated 02.03.1990 for the work of Premix Carpeting and Black Topping work to one Medikhru, who said to have expired some time in 1990, for the Pfutsero-Sakuraba Bible Hill Road from 20 KM to 24 Km. The following are the conditions stipulated in the work order awarded to late Medikhru -

"1. The contract shall in no circumstances be sub-let and if found otherwise the contract is liable to be cancelled without assigning any reason thereof.

''2. No power of attorney in the name of any individual will be accepted."

It would appear that late Medikhru expired some time in 1990 before completion of the work. Thereafter his son has executed a power of attorney in favour of these two writ petitioners to complete the unfinished work. It also appears that the writ petitioners accordingly completed the work and submitted bills. However, the bills so submitted for the incomplete work of the contract by the writ petitioners has not been paid by the respondent authority which lead to filing of the writ petitions.

Before the learned Single Judge it has been urged on behalf of the petitioners that the son of late Medikhru duly executed a power of attorney and the petitioners have completed the work according to the specification and since there was no dispute fact with regard to the completion of work, it was prayed that a writ of Mandamus be issued directing the respondent Government for payment of the balance amount of the bill. A counter on behalf of the respondent has been filed contending, inter alia, that the contract between late Medikhru and the Government stood terminated on expiry of late Medikhru and his son who is not a party to work contract has no authority to execute a power of attorney, apart from, the same has been prohibited by the terms of the contract, has executed the same and appointed the writ petitioners to complete the work and therefore the power of attorney executed by the son of late Medikhru is void ab initio. It has also been contended by the respondent Government that there is a clear stipulation in the work order amongst others that the contract shall in no circumstances be sublet and no power of attorney in the name of any individual will be accepted. The power of attorney executed by the son of late Medikhru is not only void ab initio, but also in violation of the conditions stipulated in the work order.

Learned Single Judge considered the aforesaid submissions of the learned Govt. advocate and according to him although the contentions of the respondents is quite reasonable, however, in the opinion of the learned Single Judge since the son of late Medikhru has sworn an affidavit to the effect that the balance work has been executed and completed by the writ petitioners, such technicality should not come on the way for making payment for the work actually performed by the writ petitioners.

The aforesaid work order dated 02.03.1990 issued in favour of late Medikhru was a work contract executed between late Medikhru and the State of Nagaland. Since it was a work contract between late Medikhru and the State, the work contract stand rescinded on the expiry of late Medikhru. Therefore, no contract executed between late Medikhru and the State Government was subsisting when his son executed the power of attorney in favour of the writ petitioners, a third party, who are not a party to the contract. Not only that, there was a clear stipulation in the conditions of work order that no subletting or power of attorney issued in favour of any individual were permissible and, therefore, execution of power of attorney by the son of late Medikhru in favour of the writ petitioners was not only void ab initio but also in clear breach of the conditions stipulated in the work order. The power of attorney executed by the son of late Medikhru in favour of the writ petitioners namely, Shri Chosayi (writ petitioner. in W.P.(C) No.26(K)/99) and Shri Khachuno (writ petitioner in W.P.(C) No.27(K)/99) are void ab initio and cannot stand scrutiny of law.

Having said so, we emphasis that a person seeking a writ of Mandamus must first satisfy that he possessed a legally enforceable right and that right has been infringed by the executive authority. One he fails to establish that he has a legally enforceable right, no writ of Mandamus can be issued. When there is legal right, there is remedy (Ubijus ibi remedium). It must be grasped that a writ of Mandamus is always issued to remove injustice and to do justice to the aggrieved party. Writ of Mandamus enforces right. It cannot create right. Illegality cannot by legalised by issuing a writ of Mandamus. This would amounted to allowing perpetuation of illegality.

In the present cases, as discussed, the son of late Medikhru has no authority to execute a power of attorney in favour of the writ petitioners. If that be so, the power of attorney, if any, executed by the son of late Medikhru in favour of the writ petitioners are void ab initio. In the case at hand the supposed right claimed by the petitioners flows from the power of attorney and if the power of attorney is void ab initio, it cannot be said that they possess any enforceable legal right. Issuing a writ of Mandamus in such a situation would amounted to allowing the illegality or irregularities to continue and instead of removing injustice it will harm justice.

In view of what has been stated, we are clearly of the view that the power of attorney executed by the son of late Medikhru thereby subletting the contract in question in favour of the writ petitioners are clearly impermissible. To that extent the judgment and order of the learned Single Judge is set aside.

Despite the order aforesaid, we cannot overlook one basic fact that in fact the son of late Medikhru, who is also a legal heir, has sworn an affidavit that the rest/balance work has been actually carried out and completed by the writ petitioners as authorised by him, after the death of his father. If that be the position, there is no difficulty for the son of late Medikhru to obtain a succession certificate from the competent authority, if not already obtained, and submit to the authority for making payment of balance amount to him and it is always open to the writ petitioners to claim payment of the balance work completed by them through the son of late Medikhru. We make it clear that such payment shall be made by an Account Payee Cheque in the name of the son of late Medikhru in presence of the writ petitioners. The State of Nagaland shall make payment of the undisputed bills in terms of the aforesaid direction within a period of 3(three) months from today subject to fulfillment and completion of work as per specification.

With the aforesaid directions, these appeals stand finally disposed.