Bhootpurva Sainik Security Gurad ... vs Commissioner Custom & Central ...
2017 Latest Caselaw 3988 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 3
 
Case :- MISC. BENCH No. - 22499 of 2016
 
Petitioner :- Bhootpurva Sainik Security Gurad Thru. Partner Komal Singh
 
Respondent :- Commissioner Custom & Central Excise And Service Tax & Ors.
 
Counsel for Petitioner :- Pradeep Raje
 
Counsel for Respondent :- Gaurav Mehrotra, Dipak Seth,Kumar Ayush
 

 
Hon'ble Sudhir Agarwal,J.

Hon'ble Ravindra Nath Mishra-II,J.

1. Heard Sri Predeep Raje, learned counsel for petitioner and Sri Dipak Seth, learned counsel for respondent.

2. This is throughly misconceived and ill advised petition. Petitioner has sought following reliefs:-

" Issue a writ order or direction in the nature of Mandamus commanding the opposite parties no. 3 and 4 to make payment of outstanding dues of service tax for the period of 2005-06 and 2006-07 and arrears of bills to the petitioner firm to enable the petitioner to deposit the dues of service tax".

3. Admittedly, the alleged dues i.e arrears of bills etc are nothing but a part of alleged contract executed by petitioner with respondents no. 3 & 4 i.e Chairman, Lucknow Development Authority and Security Officer, Lucknow Development Authority respectively.

4. When questioned as to how for realization of money pursuant to a contractual work writ petition under Article 226 is maintainable, learned counsel for petitioner placed reliance on Apex Court's decision in Hindustan Sugar Mills, M/s. Vs. State of Rajasthan AIR 1981 SC 1681.

5. We have considered the above decision in Hindustan Sugar Mills, M/s. Vs. State of Rajasthan (supra) and find that sale of cement and price was controlledw by Cement Control Order, 1967 issued under the provisions of Essential Commodities Act, 1955 (hereinafter referred to as "Act, 1955"). The Company supplied cement to the Central Government through Director General of Supplies and Disposals. The amount of sales tax payable by Company on the aforesaid cement was to be paid by Government which was disputed on the ground that there was contract for such payment and matter was decided by Court holding that there is no legal liability on the Central Government to pay amount of sales-tax. However, having said so, Court also observed that in a democratic society governed by rule of law, a Government is expected to be inspired by ethical and moral values and should do what is fair and just to the citizen, regardless of legal technicalities. Court expected that Central Government will not seek to defeat legitimate claim of assessee for reimbursement of sales tax on the amount of the freight by adopting a legalistic attitude. Thereafter a Review Application was filed by Company showing that there was a Clause in Rate Contract of Director General of Supplies and Disposals providing that sales tax, if legally leviable, will be paid in addition to the price given in clause of the Rate Contract. In that view of the matter, Review Application was allowed and observation that Central Government was not bound to pay amount of sales tax legally was deleted and Court said as under:

"Where there is such a clause the Central Government is bound to pay the amount of sales tax on the freight component of the price and we hope and trust that the Central Government will honour its legal obligation and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the state should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand."

6. There was no issue raised, argued and decided by Court that for the purpose of recovery of money pursuant to contract, writ petition under Article 226 would be maintainable. This question has been considered specifically in Hindustan Petroleum Corporation Limited and another Vs. Dolly Das 1999 (4) SCC 450 wherein Court said that in absence of any 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 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.

7. In Kerala State Electricity Board and another Vs. Kurien E. Kalathil and others 2000 (6) SCC 293, Court said that interpretation and implementation of a clause in a contract cannot be subject-matter of a writ petition. Whether a contract envisages actual payment or not is a question of construction of contract. If a term of contract is violated, ordinarily remedy is not the writ petition under Article 226. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Disputes arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies have power to contract or deal with property like private parties. Such activities may not raise any issue of public law. When it is not shown that contract is statutory and parties are within the realm of their authority, contract between the parties is in the realm of private law. The disputes relating to interpretation of terms and conditions of such contract cannot be agitated in a petition under Article 226 of the Constitution. The Court further said:

"That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition."

8. Following the above authorities, a Division Bench of this Court in M/S Prabhu Construction Company through its Proprietor Vs. State of U.P. and another (Writ C No. 25075 of 2014) decided on 05.05.2014 said as under:

"In the present case, there is nothing on the record which may persuade us to hold that the contract is a statutory contract. The remedy of the contractor, if he is aggrieved by non-payment, would be to either file an ordinary civil suit or if there is an arbitration agreement between the parties, to invoke the terms of the agreement."

9. The Court also relied on its earlier decision in M/s R.S. Associate Vs. State of U.P. and others (Writ-C No. 11544 of 2014) decided on 24.02.2014.

10. Again in Alaska Tech Vs. State of U.P. 2014 (6) ADJ 591, a Division Bench of this Court observed as under:

"2. We are of the view that, in a matter of this nature which pertains to alleged non-payment of dues under a contract for supply of goods, it would neither be prudent nor judicious for this Court, in exercise of its jurisdiction under Article 226 of the Constitution, to grant relief, which is in substance, is a prayer for a money decree. These matters, it must be emphasized, are not those relating to statutory contracts but are purely non-statutory contracts. Whether work has been satisfactorily performed, whether the rates which had been quoted are in accordance with the terms of the contract, whether the goods were of a quality as mandated, and above all, whether the claim is within limitation or otherwise, are issues which cannot appropriately be adjudicated upon under Article 226 of the Constitution."

11. The same view has been reiterated in M/S Goyal Stationary Mart through its Proprietor State of U.P. (Misc. Bench No. 10971 of 2015) decided on 27.11.2015, Budh Gramin Sansthan Vs. State of U.P. 2014 (7) ADJ 29, Kaka Advertising Agency Vs. U.P. Technical University and others 2014 (11) ADJ 227, M/s A.K. Constructions Vs. State of U.P. and others (Misc. Bench No. 1909 of 2014) decided on 07.03.2014, Major Travels through Proprietor Vs. State of U.P. and others (Misc. Bench No. 3472 of 2014) decided on 25.04.2014 and Uttaranchal Paper Converters and Publishers through Proprietor Vs. State of U.P. and others (Misc. Bench No. 3898 of 2015) decided on 13.05.2014.

12. In view thereof, we are clearly of the view that mandamus sought by petitioner is nothing but grant of a money decree in extraordinary equitable jurisdiction under Article 226 which ought not to have been granted.

13. It may also be noted at this stage that on behalf of respondents 1, 2 and 3 a counter affidavit has been filed wherein claim of petitioner has been seriously disputed and it has been pleaded that petitioner violated agreement conditions and enhanced rate was not approved by competent authority. The alleged work performed by petitioner has also not been approved by competent authority and, therefore, payment has been held up. Thus it is a clear case where even the right of petitioner for payment has been seriously disputed disputing seriously various assertions made by petitioner and the same need not be examined in writ jurisdiction under Article 226 even otherwise.

14. Learned counsel for petitioner placed reliance on Division Bench judgment of this Court Bhagwati Security Services Vs. Union of India, Writ Tax No. 870 of 2007 decided on 16.01.2013 stating that the liability of service tax cannot be imposed upon him but in the present case there is no dispute with regard to liability of service tax, therefore, aforesaid judgment does not help the petitioner.

15. The writ petition is wholly devoid of merits. Dismissed with cost of Rs. 10,000/-.

16. Interim order, if any, stands vacated.

Order Date :- 5.9.2017

Pachhere/-