9911796707
TMI Blog1959 (7) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... f the date of tender, date of acceptance, value of work, date of work order, date of completion and the period of completion are given below: S. No. Contract No. & particulars. Date of tender. Date of acceptance. Value of work. Date of work order. Date of completion. Completion period. A. CEEC/KAN/34 at 52-53 construction of 54 'P' type Qrs. Kanpur. 9-1-53 29-1-53 ₹ 980842-71 12-5-53 14-11-54 18 months. B. CEEC/AGR/AFW; 27 of 54-55 construction of 280 Followers Qrs. Agra. 24-12-54 8-1-55 576655.37 24-1-55 23-1-56 12 months. C. CEEC/AGR/AFW; 26 of 54-55 Taxi Track Apron at Agra. 22-2-55 10-3-55 904738-00 9-4-55 9-1-56 9 months. D. CEEC/AGR/AFW/ 26 of 54.55 construction of 127 Followers Qrs, at Agra. 29-12-53 3-1-56 290110-69 23-1-56 23-1-57 12 months. 2. Admittedly the works mentioned above could not be completed within the stipulated time. The petitioner's case with regard to the delay in the completion of the work under contract A is that though the tender was accepted as early as 29-1-1953, work order was not given to the petitioner till as late as 12-5-1953 in spite of repeated reminders by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade. 4. In connection with contract C the petitioner's case is than it could not be completed up to 9-1-1956 as the site for the taxi track on which the construction was to be made was not handed over to the petitioner in time and further the employer committed delays and defaults in supplying material which it had undertaken to supply as also in respect of other matters. It- is complained that there was some mistake about the level of the apron and the alignment of the apex in the plan and it was only by 15-6-1955 that the mistake was corrected by the department and that too only partially, no such correction haying been made in respect of the level of the apron near the southern side of the A.W.D. hangar which was corrected partly on 31-9-1957 and finally on 22-2-1958. It is also alleged that in the work contracted included a culvert the approximate cost of which was ₹ 9,200/-. The employer altered its design in the first week of. March 1956 with the result that not only the work was delayed but the petitioner had to incur a cost of ₹ 16,269/- instead of the original cost of ₹ 9,200/-. It is averred that the employer added a new item called the 'Track ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it to vacate the site of the proposed constructions contemplated by the contracts 'C' and 'D'. On 9-8-1958 the respondent No. 1 sent another letter to the petitioner, this time informing is that in case the work was not completed by 25th August the contract 'A' would be cancelled. The respondent No. 1 has published as advertisement in the issue of the newspaper "Tribune" dated 12-8-1958, calling for tenders in respect of the contract 'C'. The petitioner submitted a memorandum to the Defence Ministry on 16-6-1958 but received no reply. 7. On these facts the present petition has been moved. The prayer is for the issue of an order, direction or writ in the nature of certiorari cancel-ling the orders of the respondents, one dated 2-6-1958 and two dated 16-6-1958 cancelling contracts B, C and D the letter No. 980004/20/ 386/E-8 dated 9-8-1958 and the orders dated 3rd and 4th July, 1958. There is also a prayer for the issue of a writ, order or direction in the nature of mandamus directing the respondents not to cancel contract 'A' and to take possession of the four blocks which have already been completed. It is also prayed that a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged that the time lost due to the suspension of the building operations was allowed to the petitioner as the period of completion was correspondingly expended by the employer by the period for which the suspension operated. The petitioner's allegation that the employer nominated a sub-contractor has been accepted but it is further stated that the sanitary works were completed by the sub-contractor within time and such defects as were left in the construction were rectified by him also within time. The petitioner's allegation that the delay in laying of Mosaic floor was due to the fault of the sub-contractor has been controverted and it has been stated that the fault entirely was that of the petitioner. It is also alleged that the petitioner never objected to the nomination of the particular sub-contractor. Whatever delay was caused by the sub-contractor was fully compensated by the grant of extension of time to the petitioner. The case set up in the counter affidavit is that in terms of condition 18 of IAFW-2249 the contractor is responsible to the Government and "nothing can relieve or absolve him of his liability in respect of the sub-contract under the conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to serve notices on the petitioner intimating it that its contracts would be cancelled if it did not complete the works by the specified dates as it was not possible to allow the petitioner to delay the completion of the work's sine die. It is also stated that the employers gave repeated extensions of time and also made payment of a sum of ₹ 50,000/- as a special advance. The petitioner could not make any progress in the work and time being the essence of the contract and it being apparent to the employers that the petitioner did not intend to make any further progress in the work the employer had no option but to cancel the contracts. It is also alleged that the Government has badly suffered on account of the delay caused in the completion of the works by the petitioner." 10. A rejoinder affidavit has also been filed. It is not necessary to mention the various allegations made in the rejoinder affidavit. In fact I have also not mentioned all the allegations made in the affidavit and in the counter affidavit because, in my opinion, for the purposes of the order which I propose to pass, it is not necessary to mention the various allegations made in the three affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final and conclusive, shall after written notice by either party to the Contract to the other of them be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. Unless the parties otherwise agree, such reference shall not take place until after the completion, alleged completion or abandonment of the Works or, the determination of the Contract. The venue of Arbitration shall be such place or places as may be fixed by the Arbitrator in his sole discretion. The award of the Arbitrator shall be final, conclusive and binding on both parties to the Contract." 12. It is customary to insert such Clauses in all building and engineering contracts both in this county as also in England, It is nobody's case that the aforesaid Clause is not operative and the contract has been broken up either by the conduct of the parties or by the refusal of persons who would be the likely arbitrators to arbitrate. 13. Though Mr. Kunzru learned Counsel for the petitioner has not disputed the existence of such a Clause in the agreement deed his contention is that the conditions pre-requisite for an arbitration contemplated by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved of the necessity of having recourse to arbitration and this Clause cannot be the basis of an alternative remedy in the present case. The relevant portions of Section 28 of the Indian Contract Act run as follows: "Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. Exception 1 -- This section shall not render illegal a contract by which two or more person agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Exception 2 -- Nor shall this section render illegal any contract in writing by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration." Though under exception 1 of Section 28 of the Contract Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amus will be refused if there Is an alternative remedy. In the present case there is a prayer for the issue of a writ of certiorari as also for the issue of a writ of mandamus. In my. opinion the prayer for the issue of a writ of certiorari in the circumstances of the present case is clearly untenable. It is well known that a writ of certiorari lies for quashing of orders or proceedings of an inferior court or other persons or bodies exercising judicial or quasi-judicial functions. The orders that the petitioner wants to get quashed by means of a writ of certiorari have not been passed by a judicial tribunal or by an authority acting judicially or quasi-judicially. The prayer is for the quashing of the orders cancelling the various contracts. Those orders are administrative ones. If was held in the case of State of Bihar v. D. N. Ganguly AIR 1953 SC 1018 that a writ of certiorari is not a proper writ against administrative orders- Their Lordships of the Supreme Court have expressed themselves in the following words in that case: "That takes us to the question as to the form in which the final order should be passed in the present appeals. The High Court has purported to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective." 17. But quite apart from the question whether or not the existence of an alternative remedy is an absolute bar to the issue of a writ of mandamus, it is well known 'that normally a Court would not be justified in issuing it when there is a clear alternative remedy and when there is no complaint of the breach of a fundamental right. In the circumstances of the present case there can be no justification whatsoever for by-passing the remedy provided by arbitration and issuing a writ. I have already indicated in an earlier part of this judgment that under the provisions of Section 28 of the Indian Contract Act an agreement by which a particular matter has got to be decided in arbitration proceedings is permissible. The last Clause of Section 21 of the Specific Relief Act runs as follows: "And save as provided by the Arbitration Act, 1940, no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract other than an arbitration agreement to which the provisions of the said Act apply and has refused to perform it sues in respect of any subject which he has contracted to refer, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear tome either just or proper that the petitioner should be allowed to wriggle out of the agreement which its own hand has willingly executed. In the Division Bench case of this Court, Brij Lal Suri v. State of U. P. AIR 1954 411 93, Sapru J., observed as follows while considering the question of an alternative remedy: "Now it is well known that where the parties have chosen under an agreement to refer their disputes to arbitration, Courts will insist that they, should have recourse to arbitration before pursuing any other remedy." I am in respectful agreement with this view. 20. For the reasons mentioned above I am of the opinion that the petitioner clearly has got an alternative remedy of getting the matter referred to an arbitrator. 21. Even if it be assumed, though I have held! to the contrary, that reference to arbitration in the circumstances of the present case is not possible, I see no reason as to why the petitioner cannot file a suit. The reply of Mr. Kunzru is that he cannot get the same relief by means of a suit which he has asked for in this petition and the relief which he may obtain by means of a suit will be wholly inadequate. It is true that un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profit. It was interested in the contracts only with a view to earn money and it should not matter to the petitioner if it obtains that money by way of damages by filing a suit for the same instead of earning it as profit after completing the contract. To me therefore in appears that in the circumstances of the present case compensation in money can be an adequate relief to the petitioner. The Privy Council in the case of Ramji Patel v. Rao Kishore Singh AIR 1929 PC 190 observed as follows: "In view of the finding that compensation in money is an adequate relief to the Plaintiff and in view of the express provisions contained in sections 12(c) and 21(a), their Lordships are of opinion that a decree for specific performance of the contract should not be made." 23. The result of what I have said above is that though there may be some difficulty in the way of the petitioner in filing a suit for specific performance of the contract there can be no difficulty in its way in filing a suit or suits for damages and suit! or suits for damages, in my opinion, would be an alternative remedy for the purposes of Article 226 of the Constitution of India. 24. Apart from the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical staff of a private hospital association, when the right is based on private contract; and the apparent hardship of the particular situation, because there may be no other remedy, is held not a sufficient reason for departing from the general rule." In Halsbury's Laws of England, Vol. 11, at p. 105 (Simonds edition) the statement of law on this point reads as follows: "195. Duties must be public. The order is only granted to compel the performance of duties of a public nature. It will not, accordingly, issue for a private purpose, that is to say, for the enforcement of a merely private right.' The Court will not, therefore, interfere in cases of dispute between members of private corporations, even though carrying on business under a royal charter," Again, at p. 84 of the same book it is stated as follows: "159. The order of mandamus is an order of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ike those mentioned in the article would lie; and the words "any other purpose' must be read in the context in antithesis to the words 'for the enforcement of any of the rights conferred by Part III.' Obviously, writs like 'Habeas Corpus,' mandamus and 'certiorari' could be issued not only for the enforcement of any of the fundamental rights, but also for the enforcement of other legal rights, subject however to conditions well established. To give an instance, the writ of prohibition has always been understood as a writ which could issue only to a judicial or quasi-judicial tribunal or an inferior court. Surely, it cannot be said that now under Article 226 a writ in the nature of prohibition could issue even to a private person prohibiting him from doing some, act which is likely to injure an applicant." 26. In my opinion the law in India on this point is not different from that prevailing in England and America. In the case of Commissioner of Income Tax v. Bombay Trust Corporation Ltd. their Lordships of the Privy Council observed as follows: "Before mandamus can issue to a public servant it must therefore be shown that a duty towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Orissa High Court had, without admitting the five writ petitions which gave rise to the appeal before the Supreme Court, passed interim orders. While allowing the appeal the Supreme Court set aside the orders of the Orissa High Court on the ground that inasmuch as the petitions had been dismissed there could be no jurisdiction for passing interim orders. 29. The second case on which Mr. Kunzru has placed reliance is that of Nuraddin Ahmed v. State of Assam (S) AIR 1956 Gau 48. The facts of that case were that in conformity with the rules relating to auction of fisheries a proclamation was issued by the Deputy Commissioner, Cachar, to the effect that fishery No. 11 along with other fisheries would be sold by public auction on a certain date. On that date other fisheries were auctioned but not fishery No. 11 and later on that fishery was settled directly (without recourse to public auction) with another person whereupon a writ petition was filed in the Assam High Court. That Court set aside the settlement in favour of the third person and directed that the fishery be settled in accordance with the rules. The ground on which the petition was allowed was that statutory rules had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unzru and the consensus of judicial opinion in this country is that a writ of mandamus cannot issue to enforce a duty under a contract. 34. In this connection Mr. Kunzru has submitted that in England the rule, that a writ of mandamus cannot be issued to enforce a contractual obligation exists because there the Courts can pass a decree for specific performance of a contract. It is contended that in this country a decree for specific performance cannot be passed except as provided for by Sections 12 and 21 of the Specific Relief Act. The argument of Mr. Kunzru is that since in this country it is very difficult, if not impossible, to obtain a decree for specific performance of a contract, we should be liberal in exercising our jurisdiction under Article 226 of the Constitution of India in such cases and should not follow the English practice where the same relief is given by the ordinary Courts without the High Court being called upon to issue a prerogative writ or an order of that nature. I have already said about that the consensus of judicial opinion in this country is that a writ of mandamus cannot be issued in a case of contractual obligation. But apart from it, in my opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary Building or Engineering contract, although in the case of a building agreement, where the consideration is the grant of a lease, such relief can be given. The Court has jurisdiction to grant specific performance of a Contract to erect a building if (1) the work to be done is defined, (2) Plaintiff has a substantial interest in its execution which cannot be adequately compensated for by damages, and (3) Defendant has by the Contract obtained from Plaintiff possession of the land upon which the work is to be done. The function of the Court is to give relief to both parties. Thus, generally, on the principle that the Court itself cannot exercise supervision, it will not grant specific performance in Contracts where personal services, trust or skill are essential components of the Contract. Thus, where a railway company agreed that a firm of Contractors should construct a railway and work it also, it was held that no decree of specific performance could be granted. A Contractor may, however, in certain circumstances obtain an injunction to prevent the Employer from expelling him from the works pending arbitration under me Contract." 35. The Court of Appeal in Eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiff of that case had sustained by reason of the defendants of that case having prevented him from completing a building contract which he had entered into with them. That was not a case for specific performance of a contract but only for recovery of damages. 39. The next case on which reliance has been placed is that of Ludbrook v. Barrett (1877) 36 LT 616. That case is an authority for the proposition that an action will lie by a builder against an architect, who fraudulently and in collusion with the builder's employer, refuses to certify that he is satisfied with the work done, whereby the builder is unable to get payment, if the architect has an interest in the contract between the builder and his employer. That case has no application to the facts of the present case. 40. The fourth case on which the learned counsel for the petitioner placed reliance is that of Marsden v. Sambell (1880) 43 LT 120. That was an action founded on a proviso for re-entry contained in a building contract and was not an action for specific performance of the contract. 41. The fifth case on which reliance was placed is that of Wells v. Army and Navy Co-operative Society, Limited (1902) 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irect the respondent Committee not to prohibit the petitioner from carrying on the business of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area Committee until proper and valid bye-laws are framed and thereafter except in accordance with a license to be obtained by the petitioner under the bye-laws to be so framed." A similar order was passed by that Court in the case of Sri Ram v. Notified Area Committee, Khatauli AIR1952SC118 . In the case of Rashid Ahmed v. Municipal Board, Kairana [1950]1SCR566 , the Supreme Court directed the Municipal Board of Kairana not to prohibit the petitioner from carrying on his trade as a wholesale dealer and commission agent of vegetables and fruits within the limits of the Municipal Board of Kairana except in accordance with the bye-laws as and when framed in future according to law, and further directed the Municipal Board to withdraw the pending prosecution of the petitioner. In all these three cases orders or directions as distinct from prerogative writs were issued. It cannot be denied that orders or directions are quite distinct from prerogative write, and the High Court can shape its order in such ..... X X X X Extracts X X X X X X X X Extracts X X X X
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