Posted On by &filed under Delhi High Court, High Court.

Delhi High Court
Project Equipment & Material … vs Union Of India (Uoi) And Ors. on 15 November, 2000
Author: A Pasayat
Bench: A Pasayat, D Jain


Arijit Pasayat, C.J.

1. This petition under Article 226 of the Constitution of India 1950 (in short the “Constitution”) has been filed for a direction to the Union of India through its Secretary, Ministry of Industry and National Small Industries Corporation Limited (in short the, “NSIC”) to make payment of statutory dues/arrears of Sales Tax and other dues/arrears. A further direction has been sought for in respect of Government of National Capital Territory of Delhi to restore the certificate of registration under the provisions of the Delhi Sales-tax Act 1975 (in short the “Sales-tax Act”).

2. Background position, according to the petitioner, is as follows:-

Petitioner is a proprietorship concern of Shri S.K. Dey, who is a Technocrat and started his career in 1973-74 in industrial consultancy and thereafter in association with various reputed consultancy organisations participated in fruitful execution of some major projects in the country. In the year 1981, petitioner got registered under the.Sales-tax Act. He successfully executed export orders of various turnkey projects, allied equipments and materials as a sub-supplier of NSIC, during the period from 1982-89. The aforesaid exports were of two types viz. (1) direct exports (2) the gift ment exports. In respect of said transactions, certain statutory declaration forms were to be supplied by NSIC, which it failed to supply. As these declaration forms were not supplied petitioner had to face ex parte adjudications by the Sales-tax Authorities and huge demands were raised by them. On some plea or other, the declaration forms were not supplied and even the payments due to the petitioner were not made. The petitioner has been communicating with respondent No. 2 NSIC in this regard but with no fruitful result. Finding no other alternative, petitioner has filed the writ petition with essentially the prayers noted above.

Resisting the petition, learned counsel for respondent No. 2 submitted that though original claim for a contract executed in 1982-83 (23.11.1982) was Rs. 59,376/-, the claim as made in the present petition is more than Rs. 67 lacs at one point of time, and at some other place it has been indicated to be nearly Rs. 72 lacs. Similarly in respect of another contract executed in 1982-83 (20.3.1983) originally the amount is indicated to be Rs. 2,38,975/-, but in the writ petition it has been stated to be Rs. 2,00,91,277.08 at one place and Rs. 5,37,22,909..52 at another place. It is further stated that petitioner did not appear before the sales-tax Authorities and that led to ex parte adjudications and if any tax has been demanded, respondent No. 2 is not responsible for the same. In any event, it is submitted that the claims are denied by it, and dispute is essentially a money claim and therefore no writ petition would lie. It is also submitted that a suit was filed in the year 1993 by the petitioner, which was ultimately dismissed for non-payment of court fee. Additionally, a writ petition was earlier filed i.e. CWP 2483/93, which was also dismissed as withdrawn. Petitioner cannot be permitted to make a belated attempt to give highly exaggerated and imaginary figures and make a prayer for payment thereof. Lot of factual disputes are involved and therefore writ petition should not be entertained. It is pointed out that even claim is raised after long lapse of time, on highly exaggerated and imaginary figures.

By way of reply to the stand that the writ petition should not be entertained in respect of money claim, learned counsel for the petitioner placed reliance on a decision of the Supreme Court in Hindustan Petroleum Corporation Ltd. and Anr. v. Dolly Das, , more particularly paras (8) and (9) thereof, which read as follows:-

“(8) So far as the contention regarding laches of the respondent in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of the appellant had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, we may notice that the period for which the option of renewal has been exercised has not come to an end. During the subsistence of such a period certainly the respondent could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief.

(9) We may now advert to the contention that the writ remedy is not appropriate in this case. Where interpretation of a contract arises in relation to immovable property and in working such a contract or relief thereof or any other fallout thereto may have the effect of giving rise to an action in tort or for damages, the appropriate remedy would be a civil suit. But if the facts pleaded before the court are of such a nature which do not involve any complicated questions of fact needing elaborate investigation of the same, the High Court could also exercise writ jurisdiction under Article 226 of Constitution in such matters. There can be no hard and fast rule in such matters. When the High Court has chosen to exercise its powers under Article 226 of the Constitution we cannot say that the discretion exercised in entertaining the petition is wrong.”

3. In a recent case State of Himachal Pradesh v. Raja Mahendra Pal and Ors. 1999(2) SCALE 381, it was observed by the Supreme Court that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual rights arising out of an agreement particularly in view of the existence of efficacious alternative remedy. The Constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the Court from granting the appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of alternative efficacious remedy. The existence of the special circumstances are required to be noticed before issuance of the direction by the High Court while invoking the jurisdiction under the said Article. In the instant case, we do not notice any special circumstance which could be held to be sufficient to deviate from the settled proposition of law regarding the exercise of the writ jurisdiction under Article 226 of the Constitution. Courts cannot adopt a very generous, general and casual approach in applying the right to livelihood to the facts and circumstances of the case apparently for the purpose of clothing itself with the power and jurisdiction under Article 226 of the Constitution in contractual matters.

4. In Bareilly Development Authority and Anr. v. Ajay Pal Singh and Others, , it was observed that there is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory 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 so as to compel the authorities to remedy a breach of contract pure and simple ( See: Radhakiishna Agarwal v. State of Bihar, , Premji Bhai Parmar v. Delhi Development Authority, and D.F.O. v. Biswanath Tea Company Ltd., .

5. Even in the case of Hindustan Petroleum Corporation Ltd. (Supra) relied upon by the petitioner, it was held that in the absence of constitutional or statutory rights being involved, a writ proceeding would not lie to enforce contractual obligations even if it is sought to be enforced against the State or to avoid contractual liability arising thereto. In the absence of any statutory right Article 226 cannot be availed to claim any money in respect of breach of contract or tort or otherwise. Paras (8) and (9) of the judgment on which reliance has been placed by petitioner deal with contextually different issues and views related to facts peculiar to that case. They have no application to the facts of present case. That being the position, petition is without merit and is dismissed.

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