2001(4) ALL MR 38
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. LODHA AND D.B. BHOSALE, JJ.
Mr. Deepak Misrimal Jain Vs. Municipal Corporation Of Greater Bombay & Ors.
Writ Petition No.3504 of 1989
20th March, 2001
Petitioner Counsel: Shri.P.K.SAMDANI, M/s KISHORE THAKORDAS & Co.
Respondent Counsel: Mrs.N.V.SANGLIKAR
(A) Constitution of India, Art.226 - Writ jurisdiction - Scope - Petition seeking direction to Municipal Corporation to make payments as payable under the contract - Contract was for supply of lorries with labourers to for removal of silt, debris, etc. with payment to be on fixed rate - Held, once contract concluded relation between parties governed by contract - Petitioner not entitled to enforce contractual claim by filing writ petition - Merely because another contractor made payment at rate of per cubic meter per km - It does not result in violation of Art. 14 or of any other constitutional provisions - Petitioner cannot enforce claim by filing writ petition - Petition not maintainable.
(B) Constitution of India, Art.226 - Petition under - Scope - Petition seeking payment under contract - Contract with municipal corporation for supply of lorries with labourers for carrying silt, debris, etc. to notified dumping grounds with payment to be on fixed rate - Contractor permitted by corporation to carry debris to non notified dumping grounds at his request as notified grounds were far away and required more time and consumption of fuel - Contractor cannot contend later that as he carried silt to non notified dumping grounds he was entitled to payment on per basis of cubic meter per km. (Para 9)
M/s.Radhakrishna Agarwal Vs. State of Bihar, (1977)3 SCR 249 : AIR 1977 SC 1496 [Para 5,6]
Bareilly Development Authority vs. Ajay Pal Singh, AIR 1989 SC 1076 [Para 6]
Premji Bhai Parmar vs. Delhi Development Authority, (1980) 2 SCR 704 : AIR 1980 SC 738 [Para 6]
D.F.O. vs. Biswanath Tea Company Ltd, (1981) 3 SCR 662 : AIR 1981 SC 1368 [Para 6]
State of U.P. vs. Bridge & Roof Co.(India) Ltd., AIR 1996 SC 3515 [Para 7]
Assistant Excise Commissioner vs. Isaac Peter, 1994 4 SCC 104 : 1994 AIR SCW 2616 [Para 7]
R.M.LODHA, J. :- This group of four Writ Petitions is disposed of by this common Judgment since the controversy raised therein is identical in respect of identical contracts and Tender conditions whereby the petitioners were given contracts for supply of lorries with labourers for the removal of silt, debris, household waste materials etc. as per the rates stated in the Schedule - I annexed to the Contract.
2. For the sake of brevity, we intend to refer to the facts of Writ Petition No.3504 of 1989. The petitioner carries on business in the name and style of M/s Super Transport as its sole proprietor. In or about the month of September 1984, the Respondents invited tenders for supply of lorries with labourers for removal of silt, debris, household waste materials etc from "A" Ward of the first respondent. The petitioner responded to the said invitation for tenders and submitted tender on 16th October 1984. By letters dated 31st October 1984 and 10th November 1984 addressed by the Director, Solid Waste Management Department, the petitioner was asked to take up the work of supply of lorries with labourers for removal of silt, debris, household waste materials etc. from A Ward at the rate of consideration quoted by the petitioner in Schedule - I of the Tender dated 16th October 1984. By a further letter dated 30th November 1984, the petitioner was asked to continue the said work for a further period of one month from 1st December 1984 to 31st December 1984 at the same rate as quoted in Schedule 1 of the tender. By a subsequent letter dated 24th January 1985, the petitioner was asked to carry on the work as already granted to him till finalisation of the matter by the Administrator (Standing Committee) or till 31st January 1985 whichever was earlier. Ultimately, by a letter dated 20th February 1985, the respondents informed the petitioner that the tender submitted by the petitioner has been accepted at the rate quoted by him in Schedule 1 of the tender for the period from 10th November 1984 to 31st August 1985. According to the petitioner, though the tender of the petitioner was accepted only for a period ending 31st August 1985, as per the request of the respondents, the petitioner continued to carry on the said work of supply of lorries with labourers and equipments for removal of silt, debris and household waste materials etc. till September 1988. The case of the petitioner is that as per the terms of the tender accepted by the respondents, in the event of the respondents directing the petitioner to divert lorries to any other dumping grounds other than the principal dumping grounds, the petitioner would be entitled to charge at the rate of Rs.18/per kilometer per cubic meter for removal of silt debris, household waster materials from A Ward of the respondent no.1. The main dumping grounds as identified by the respondents were Wadala, Deonar and Dharavi dumping grounds, but the petitioner was directed to divert lorries to Wellington Garden dumping ground and since Wellington Garden dumping ground was not a notified dumping ground, the computation of payment was required to be made at the rate per kilometer per cubic meter as provided in the tender. The petitioner has stated that by a letter dated 21st March 1985, the petitioner was called upon to issue a consent letter for receiving payment at the principal dumping ground rate in respect of lorries which would be diverted to the G.D.Somani Marg dumping ground and J.B.Bhosale Marg, dumping ground. In reply thereto the petitioner, with a view to maintain cordial relations and under protest, agreed that he would carry out the work at the rate of principal dumping ground rate subject to the condition that in the event for any similar work if payments were made on kilometer per cubic meter basis, for any other contractors in any other work, then the petitioner would also become entitled to payment on the said basis. It is averred by the petitioner that for the period from April 1984 to September 1988, the respondents, time and again, diverted the petitioner's lorries to non-notified dumping grounds, namely Wellington, G.D.Somani, Navy Nagar and Nepean Sea Road dumping grounds which were not principal dumping grounds and though the petitioner was entitled at the rate per kilometer per cubic meter, the respondents have made payment to the petitioner at the rates of principal dumping grounds. The petitioner has set up the case that in the month of April 1989, it came to the notice of the petitioner that the respondents had been making payments in respect of H-West Ward to one Super Construction Company, Municipal contractors on the basis of per kilometer per cubic meter for removal of silt, debris and household waste materials to the dumping grounds of H-West Ward other than the principal dumping grounds. In view thereof, the petitioner immediately, by his letter dated 17th April 1989, addressed to the third respondent, brought on record the said facts and called upon the respondent to make payment on per kilometer per cubic meter basis. Correspondence ensued between the parties thereafter. When the petitioner was not made payment on per kilometer per cubic meter basis in respect of lorries diverted to the dumping grounds other than the principal dumping grounds, the present writ petition has been filed praying therein that the respondents be directed to release the payments due to the petitioner in accordance with the terms set out in Schedule - I of the Tender annexed and marked Exhibit "B" at the rate of Rs.18/- per kilometer per cubic meter in respect of the petitioner's lorries diverted to dumping grounds other than the principal dumping grounds for the period from 1st April 1985 to 30th September 1988.
3. The respondents have filed affidavit in reply of Shri.Ram Prayag, Chief Engineer (SOM) in opposition to the writ petition filed by the petitioner and also affidavit of Shri Chandrakant in reply to the notice of motion. It is the case of the respondents in the affidavit in reply that the corporation has been giving contracts to different contractors for removal of waste material or debris from different places in different wards, by vehicles of the contractors to different dumping places. These dumping places are of two categories, viz., notified dumping places for particular wards and non-notified dumping places. Referring to the contracts entered into between such contractors, it is stated that such contracts are in two parts. The first part contains the rates which are fixed rates for doing the work of carrying materials and dumping them at notified dumping places. The rate in respect of the work done as per this part of the contract is on the basis of quantity of waste materials or debris removed in terms of cubic meters and it has nothing to do with the distance between the place from which the waste material is lifted or removed and the place of dumping. This is called as fixed rate. The second part contains other places, viz., non-notified dumping places where the materials are being dumped and for this the rates are on cubic meter kilometer basis. These non-notified dumping places are generally nearer to the Ward and the places from where the materials or debris to be removed. The distance covered in such cases are shorter than the distance upto the notified dumping places. It is stated in the affidavit in reply that as per the special request of the contractors and mainly for their convenience to save their petrol consumption and time the corporation agreed to give concession to them to dump materials at places of shorter distance on cubic meter basis. In the affidavit in reply, the respondents have stated that the petitioner had agreed to accept the fixed rate of the notified dumping grounds on the basis of quantity of materials removed in terms of cubic meter only without the facts of distance taken into calculation for non-notified dumping grounds as well; and accepted the payments of the fixed rate without any protest or objection. The writ petition has only been filed after one of the contractors viz. M/s Mehta Enterprises filed a writ petition being Writ Petition 2130 of 1989 and the said writ petition was admitted for want of affidavit in reply filed by the present respondents. The respondents have also stated that the questions raised by the petitioner are disputed questions of fact and therefore cannot be gone into in the writ petition. The respondents have in the affidavit in reply set out detailed facts regarding various non-notified dumping grounds, namely Wellington Dumping ground, G.D.Somani Dumping ground, J.B.Bhosale Marg Dumping ground, Navy Nagar Dumping ground, Napean Sea Road Dumping ground. The respondents have, thus, denied the petitioner's claim.
4. The petitioner has placed on record copy of the Tender submitted by him for carrying out the work of removal of silt, debris, house-gully materials etc. from its own lorries and labourers for the period from 10th November 1984 to 31st August 1985. Schedule - I annexed with the said Tender, provides that for the supply of lorries with labourers, implements etc. and removing by loading all material such as debris, silt and house gully material, deposited either at one site or number of sites on roads and footpaths and unloading and spreading them at notified dumping site viz. Wadala dumping ground, Deonar dumping ground and Dharavi dumping ground, shall be at the rate of Rs.36/-, Rs.50/- and Rs.40/- per cubic meter of material to be removed respectively. As regards supply of lorries with labourers, implements etc. and removing by loading all materials such as debris, silt and house gully materials deposited either at one site or number of sites on roads and footpaths and unloading and spreading them at any other dumping grounds other than the principal dumping grounds the rate is fixed at Rs.18/- per kilometer per cubic meter. There is no dispute that for the period after 31st August 1985 till September 1988, no further or separate contract was entered into between the parties. The petitioner was informed by the letter dated 21st March 1985 as to whether he is willing to accept the rate of the Wadala dumping ground as mentioned in the Schedule 1 if he is directed to divert the vehicles to G.D.Somani Marg, J.B.Bhosale Marg, Cuff Parade dumping grounds. In response thereto, the petitioner vide his communication dated 23rd March 1985 informed the respondents that he gives his consent to carry out the work of dumping of debris at the non-notified dumping grounds, viz, G.D.Somani, Cuff Parade and J.B.Bhosale Marg at the rate of Wadala dumping ground. However, it was stated by the petitioner in the said communication that if in any other Ward similar work is allowed at the rate of per cubic meter and per kilometer, the petitioner shall claim accordingly. It appears that the petitioner accordingly continued to carry out the work of supply of lorries with labourers for removal of silt, debris, household waste materials from the said Ward to the non-notified dumping grounds and continued to raise bills at the fixed rate as per contract for Wadala dumping grounds as mentioned in Schedule-1 and he was paid accordingly and no dispute was raised by him at any time and it was only in the year 1989 for the first time vide communication dated 17th April 1989 called upon the respondents to pay him the rate as per Schedule II for all work done by him in A Ward for the entire period since 23rd March 1985 and the respondents having not acceded to that request, the present writ petition has been filed. We are afraid the petitioner cannot be granted any relief in extra ordinary jurisdiction under Article 226 of the Constitution of India because the controversy raised in the writ petitions arises simply out of a contract entered into between the petitioner and the respondents. No material has been placed by the petitioner at all that the payment was accepted by him for the work carried out for supply of lorries with labourers for removal of silt, debris and household waste materials etc for the relevant period under protest. The respondents in their affidavit, in response to a Notice of Motion No.2911 of 1990, has categorically set up the case that the petitioner had agreed to accept the fixed rate and raised bills from time to time on that basis and accepted payments on the basis of fixed rate without any objection. Thus, we have every reason to believe that the petitioner accepted the fixed rate unloading the materials at non-notified dumping grounds since that was to his convenience and also raised his bills as per Schedule-I at fixed rate and accepted the amount paid by the respondents at fixed rate without any demur, dispute or objection.
5. Needless to say that once the contract was entered into between the petitioner and the respondents for supply of lorries with labourers for removal of silt, debris, household waste materials etc. the relations of the parties cannot be said to be governed by the constitutional provisions but are governed by the contract. Merely because in relation to some other contractor, the payment at the rate of per cubic meter per kilometer has been made by the respondents for unloading of the materials at non-dumping grounds, no question arises of violation of Article 14 or any other constitutional provisions since the relations of the parties are only governed by the contract entered into between the parties. The parties can claim their rights under the contract only.
In M/s.Radhakrishna Agarwal vs. State of Bihar, AIR 1977 Supreme Court 1496, the Apex Court observed that "at the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all, the State, no doubt, acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se". In this group of cases which are before us, the contracts do not contain any statutory terms or obligations and no statutory power or obligation which would attract Article 14 of the Constitution. As a matter of fact, Article 14 of the Constitution of India is not at all involved here.
6. The Apex Court in Bareilly Development Authority vs. Ajay Pal Singh, AIR 1989 Supreme Court 1076 held that where the contract entered into between the State and the persons aggrieved is nonstatutory and purely contractual, the relations are no longer governed by the constitutional provisions and 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. The Apex Court in paras 20,21 and 22 held thus :
"20. This finding in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty's case there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority, (i.e.BDA in this case) in the said contractual field.
21. There is a line of decisions where the contract entered into between the State and the persons aggrieved is nonstatutory 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 vs. State of Bihar (1977) 3 SCR 249 : (AIR 1977 SC 1496), Premji Bhai Parmar vs. Delhi Development Authority (1980) 2 SCR 704 : (AIR 1980 SC 738) and D.F.O. vs. Biswanath Tea Company Ltd (1981) 3 SCR 662 : (AIR 1981 SC 1368).
22. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of nonstatutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for."
"16. 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 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 writ petition. The prayer in the writ petition, viz. to restrain the Government from deducting particular amount from the writ petitioner's bill(s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.
17. 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. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the Civil Court, as the case may be, according to law. Similarly if the government says that any over-payment has been made to the respondent, its remedy also is the same.
18. Accordingly, it must be held that the writ petition filed by the respondent for the issuance of a writ of Mandamus restraining the Government from deducting or withholding a particular sum, which according to the respondent is payable to it under the contract, was wholly misconceived and was not maintainable in law.[See the decision of this Court in Assistant Excise Commissioner Vs. Isaac Peter (1994 4 SCC 104 : (1994 AIR SCW 2616), where the law on the subject has been discussed fully.] The writ petition ought to have been dismissed on this ground alone."
8. We have, in the circumstances, no hesitation to hold that there is no violation of constitutional provisions and the relations of the parties are governed by pure nonstatutory contract and the petitioner, therefore, cannot enforce his claim under the contract by invoking extra ordinary jurisdiction under Article 226 of the Constitution of India.
9. Moreover, we find that it was for the convenience of the petitioner that the respondents directed him to divert the concerned vehicles carrying debris etc. to the non notified dumping grounds. It appears that under the contract the petitioner was required to carry the concerned lorries with debris etc to the principal dumping grounds at the rate fixed in the Schedule -I of the Tender but since the petitioner found that the principal dumping grounds were far away and that resulted in more petrol consumption and time, they requested the corporation for permitting them to divert the concerned vehicles to the non-notified dumping grounds which are generally nearer to Wards and places from where debris etc were to be removed. The distance covered in such cases is definitely shorter than the distance of the notified dumping places and, therefore, the petitioner cannot claim payment on the basis of per kilometer per cubic meter.
Rule is disposed of in the aforesaid terms.
11. The petitioners in Writ Petition Nos.3504 of 1989, 17 of 1990, and 1402 of 1990 are directed to refund the excess amount withdrawn by them within 12 weeks from today failing which it would be open to the respondents to invoke the Bank Guarantees submitted by the Petitioners. The Bank Guarantees to remain operative in the meanwhile.