Telangana High Court
S.Sreenivas vs Theapsrtc., on 4 September, 2024
Author: Surepalli Nanda
Bench: Surepalli Nanda
HON'BLE MRS JUSTICE SUREPALLI NANDA
WRIT PETITION No.32580 OF 2010
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 order or direction more particularly one in the nature of Writ of Mandamus declaring the impugned proceedings No.01/259(15)/2010-RM/KMM, dated 23.08.2010 of the 2nd respondent in rejecting the petitioner claim for payment of the amounts towards increased/hiked rates of HSD Oil for the petitioner bus bearing No.AP 24 U 4995 plied in the route from Kmm-Vallabi/Mallaram as per clause (vi) of the Hire Agreement, as illegal, arbitrary, violative of Article 14, 19 and 300-A of Constitution of India and consequently set aside the same with a consequential direction to the respondents to pay the said increased/hiked rates of HSD Oil., and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice.."
3. The case of the petitioner in brief is that, the impugned proceedings No.01/259(15)/2010-RM/KMM, dated 23.08.2010 of 2 respondent No.2 rejecting the claim of the petitioner for payment of the amounts towards increased/hiked rates of HSD Oil of the petitioner's bus bearing No.AP 24 U 4995 piled in the route from Kmm-Vallabi/Mallaram as per clause 4 (vi) of the Hire Agreement, 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 that the petitioner is not entitled for any amounts. On the other hand the specific case of the petitioner is that the 3 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, 6, 7 and 8 of the said counter affidavit is extracted hereunder:
"3. It is submitted that the corporation has entered into an agreement Hiring of Bus No.AP 24-U-4995 for the period from 26.05.2001 to 25.05.2004 @Rs.8.48ps (Rs. Eight and forty eight paise only) for K.M., operated towards Hire charges. As per the agreement clause no.4-
(vi) it is agreed to revise the Hire Tariff whenever the price of Diesel Oil is revised.4
4. It is submitted that the Corporation has paid the amounts in time as and when the bills were raised by the petitioner taking into consideration the agreement and as and when the HSD prices were revised basing on the circular instructions of the corporation. The contention of the petitioner that the revised hike of HSD rates were not implemented in accordance with the circulars is not true.
The petitioner has adopted his own HSD hikes and filed a calculation sheet and claiming in accordance with that sheet is not proper and contrary to the policy of the corporation. The increased/ hiked rates of HSD oil were made to him from time to time without any backlog/arrears. Hence there is no amounts due to him by the Corporation.
5. It is submitted that the W.P.No.16579 of 2010 came-up for hearing on 29.11.2010 and the same was dismissed. The payments made to the petitioner were communicated vide proceedings No.01/259(15)/2010-RM- KMM, dated 23.08.2010 is stands good. As per the proceedings and agreement clause No.4 (vi) the payments were already paid to him from time to time by increasing Hire Charges whenever Diesel rate is increased. There is no payment of difference of HSD Oil price is pending at A.P.S.R.T.C.
6. It is submitted that the claim of the petitioner is to specific perform the clause of the contract which the corporation has already substantiated the facts and 5 furnished in lines of the contract. In the event of any disputes pertaining to contract the petitioner is entitled to invoke the jurisdiction of civil court for the disputed facts.
7. It is submitted that the petitioner has to make and submit his bills at the end of the month and bills were being settled. Petitioner at no point of time raised the same his contract was till year 2004. After laps of 5 years he cannot claim as it is barred by limitation.
8. It is submitted that the writ petition filed by the petitioner is devoid of merit and lacks jurisdiction. The claim of the petitioner is barred by limitation. The proceedings of the Regional Manager is sustentative to show that entire amounts due are cleared. There is no violation of Art. 14, 16 and 300-A of Constitution of India which warrants any interference of this Hon'ble Court under Art. 226 of Constitution of India. In view of the above the writ petition is liable for dismissal."
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 is applicable/eligible had been paid as per the guidelines issued by 6 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.
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 7 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;
(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 8 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 26.05.2001 entered into between the petitioner and respondent-Corporation and the period of agreement concluded on 25.05.2004 and the representations of the petitioner were made on 12.09.2005, 28.09.2005 and 14.06.2010 and the writ petition had been filed in the year 2010. 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 9 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 (referred to and extracted above),
(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,
(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 10 decline the 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