Telangana High Court
S. Sreenivas vs The Apsrtc, on 4 September, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.644 OF 2015
ORDER:
Heard Sri Ponampelli Ravi, learned counsel appearing on behalf of the petitioner and Sri Gaddam Srinivas, learned Standing Counsel for TSRTC, appearing on behalf of respondent Nos.1 to 3.
2. The petitioner approached the Court seeking prayer as under:
"...to issue an appropriate Writ, Order or Direction, one in the nature of Writ of Mandamus declaring the impugned proceedings No.01/259 (15) /2010 RM/Khammam dated 28.08.2010 of the 2nd respondent rejecting the petitioner's claim to the tune of Rs.13,42,325/- and payment of the same towards increased / hiked rates HSD oil for the petitioner bus bearing No.AP 24 U 4464 plied on the route Khammam - Pangidi as per clause 4 sub-clause 6 of hire agreement dated 17.05.2001 as illegal, arbitrary, violative of Articles 14, 19 and 300-A of the Constitution of India and consequently set aside the same with a consequential direction to the respondents to pay the Rs.13,42,325/- with interest at the rate of 12% per annum and grant costs of the proceedings and to pass such other order or orders as this Hon'ble Court may deems fit just and proper in the circumstances of the case."2
3. The case of the petitioner in brief is that, the impugned proceedings No.01/259(15)/2010 - RM /Khammam dated 28.08.2010 of respondent No.2 rejecting the claim of the petitioner for payment of the amounts towards increased/hiked rates of HSD oil of the petitioner bus bearing No.AP 24 4464 piled in the route from Khammam - Pangidi during the period of May, 2001 to May, 2005 as per clause 4 (6) of hire agreement dated 17.05.2001 is illegal and arbitrary and aggrieved by the same, the present writ petition is filed.
4. Sri Gaddam Srinivas, learned Standing Counsel, appearing on behalf of the respondent Nos.1 to 3 submits that the petitioner is not entitled for grant of relief as prayed for in the present writ petition on the three grounds (i) All the payments made to the petitioner are in accordance to circular instructions issued by the Corporate Office from time to time on HSD increase/decrease, duly audited by the Accounts Officer, Khammam and Depot Manager, Khammam, and there is no amount pending against the petitioner. (ii) The plea of the petitioner is barred by the limitation since the petitioner disputed before this Court after lapse of five (5) years by filing the present writ petition. (iii) The specific case of the respondents is 3 that the petitioner is not entitled for any amounts. On the other hand the specific case of the petitioner is that the petitioner is entitled for amounts which are due to be paid by the respondent-Corporation.
5. Learned counsel appearing on behalf of the petitioner specifically disputes the three contentions put-forth by the learned counsel appearing on behalf of the respondents and contends that the petitioner is entitled for all the due amounts from the respondent Corporation as pleaded in the present writ petition and petitioner's case is not barred by limitation, and the payments made to the petitioner are not as per circular guidelines in force as on date.
PERUSED THE RECORD:
6. The counter affidavit filed on behalf of the respondents and in particular paragraph Nos.3, 4, 5, 7 and 8 of the said counter affidavit is extracted hereunder:
"3. It is respectfully submitted that as per Agreement of Clause 6, the revised rates of HSD were paid to the hire bus owner through regular bills as and when there is increase/hiked rates of HSD. There is no representation received from the hire bus owner regarding 4 difference of HSD hike rates. It is respectfully that as and when HSD rates increased/decreased, on the very next bills, the arrears/recovery were implemented duly audited by the Accounts Officer, Khammam.
4. It is respectfully submitted that the petitioner filed W.P.No.17534 of 2010 before the Hon'ble High Court with regard to the non-payment of increased rates of HSD Oil along with hire charges for the bus bearing No.AP 24 U 4464 given on hire to the Andhra Pradesh State Road Transport Corporation. The Writ Petition disposed with the direction to the respondent as per the Clause -4(vi) of the agreement and take a decision thereon. If the respondents find justification in the petitioners claim they shall pay the amount due to the petitioner within a period of four weeks from the date of receipt of a copy of order. If for any reason, the petitioners request is negatived and order to that effect shall be passed and communicated to the petitioner within the said period.
5. In compliance with the orders of Hon'ble High Court in W.P.No.17534/2010, the 3rd respondent has re- verified and confirmed that the payment of hire charges were paid regularly without any delay duly pre audited by Accounts Officer, Khammam. The 3rd respondent confirmed that due to price hike of HSD Oil, the deference amounts were paid to the owner. The payments made to the petitioner were in accordance with circular instructions issued by Corporate Officer from time to time to diesel 5 hike. In compliance with the orders of Hon'ble High Court, the respondent given reply vide reply dated O1/259(15)10-RM-KMM dated 28.08.2010.
7. It is respectfully submitted that as and when the HSD price increased/decreased, the Corporate Office has communicated their sanctions to implement the rates with the retrospective effect in the current month bills. If there is any deviation/difference in payment, the contractor would have raised objection for payment of HSD increased/decreased immediately. The implementation of increased/decreased HSD rate is applicable to all the hire bus owners in the State but not special for the petitioner alone. The petitioner has raised different disputes for payment of HSD rates after expiry of contract period.
8. It is respectfully submitted that the petitioner's plea was examined and informed him that there are no arrears payable to him regarding HSD increased/decreased. It is respectfully submitted that the regular bills the amount for which they are applicable/eligible were paid as per the guidelines issued by the Corporate Office duly audited by the Accounts Officer, Khammam. It is submitted that all the payments were made to them in accordance with circular instructions by the Corporate office from time to time on HSD increase/decrease, duly audited by the Accounts Officer, Khammam and Depot Manager, Khammam is 6 certified that there is no amount pending to the petitioner."
7. A bare perusal of the averments made in the counter affidavit filed on behalf of the respondents (referred to and extracted above) clearly indicates that the specific stand of the respondent-Corporation is that there are no arrears payable to the petitioner regarding HSD increased/decreased and that the regular bills the amount for which the petitioner are applicable/eligible had been paid as per the guidelines issued by the Corporate Office duly audited by the Accounts Officer, Khammam and in accordance with the circular instructions issued by the Corporate Office from time to time on HSD increased/decreased.
8. Article 18 schedule of the Limitation Act, 1963 is extracted hereunder:
Description of suit Period of Time from
limitation which period
begins to run
18. For the price of Three years When the work is
work done by the done.
plaintiff for the
defendant at his
request, where no time
has been fixed for
payment.
7
9. It is the specific case of the respondents that the
petitioner's claim is barred by limitation as per Article 18 of the Limitation Act, 1963 (referred to and extracted above).
10. The observations of the Apex Court in judgment dated 20.04.2021 reported in (2021) 6 SCC 771 in M/s. Radhakrishnan Industries Vs. State of Himachal Pradesh, which referred to Whirlpool Corporation Vs. Registrar of Trade Marks reported in (1998) 8 SCC 1 and the said view had been reiterated in a recent full bench judgment reported in 2021 SCC Online SC 801 in "Magadh Sugar & Energy Ltd. Vs. State of Bihar and others". The principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy had been summarized in the said Judgment at paragraph No.28 and the same is extracted hereunder:
"28. The principles of law which emerge are that:
(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;
(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;8
(iii) Exceptions to the rule of alternate remedy arise where
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;
(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;
(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and
(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
11. The present case falls under clause (ii) and first part of clause (vi) as well of the Judgment of the Apex Court referred to and extracted above.
12. A bare perusal of the record clearly indicates that the date of agreement is 12.05.2001 entered into between the petitioner and respondent-Corporation and the period of 9 agreement concluded on 11.05.2005 and the representation of the petitioner was made on 12.09.2005 and the writ petition had been filed in the year 2015. In view of the fact that disputed questions of fact are involved in the present writ petition pertaining to the petitioner's entitlement for payment of dues by the respondent-Corporation and the respondent-Corporation's specific denial that the petitioner is not entitled for any payment of dues, this Court opines that in view of the law laid down by the Hon'ble Apex Court (referred to and extracted above) the same cannot be gone into under Article 226 of the constitution of India.
13. Taking into consideration:
(a) The aforesaid facts and circumstances of the case
(b) The averments made in the counter affidavit filed on behalf of the respondents,
(c) The submissions put forth by both the learned counsel on record,
(d) Duly considering the view and the law laid down by the Hon'ble Apex Court in the judgment referred to and extracted above, 10
(e) Without going into the merits of the rival contentions put forth by both the learned counsel on record, the Writ Petition is disposed off, giving liberty to the petitioner to pursue the remedies as are available under law for recovery of dues to the petitioner from the respondent Corporation, since this Court decides to decline exercise of jurisdiction in the present case in view of the disputed questions of facts involved in the present case. However, there shall be no order as to costs.
As a sequel, the miscellaneous petitions, if any, pending in the Writ Petition shall also stand closed.
___________________________ MRS. JUSTICE SUREPALLI NANDA Date: 04.09.2024 HFM