Delhi High Court
Saisudhir Infrastructures ... vs Union Of India & Ors on 9 December, 2014
Author: Rajiv Sahai Endlaw
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 9th December, 2014
+ LPA 753/2014
SAISUDHIR INFRASTRUCTURES LIMITED ..... Appellant
Through: Mr. Arun Kathpalia, Mr. M.
Gireesh Kumar and Mr. Vishnu Kumar Jain,
Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Jaswinder Singh and Ms.
Shipra Shukla, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
CM No.19118/2014 (for condonation of 16 days delay in filing the
appeal)
1. We have heard the counsel for the appellant as well as the counsel for
the respondents No.1 & 2 appearing on advance notice. Need is not felt to
hear the respondent No.3 M/s. Indu Project Limited on the application. For
the reasons stated, the delay in filing the appeal is condoned.
2. The application is disposed of.
LPA No.753/2014 Page 1 of 7
LPA 753/2014 & CM No.19115/2014 (for directions)
3. This intra court appeal impugns the order dated 8 th September, 2014
of the learned Single Judge of this Court of dismissal of W.P.(C)
No.5897/2014 preferred by the appellant, giving liberty to the appellant to
institute appropriate proceedings in accordance with law.
4. We have heard the counsel for the appellant.
5. The writ petition from which this appeal arises was filed, pleading:
(i) that the respondent No.3 M/s. Indu Project Limited was
appointed as a contractor, by the respondent No.2 Director
General of Married Accommodation Projects (MAP), Engineer-
in-Chief's Branch, Integrated HQ of Ministry of Defence
(Army), for construction of residential accommodation at a)
Mamun (Pocket-4), b) Basoli, Mamun (Pockets-1&3), and c) at
Damtal;
(ii) that the appellant / writ petitioner is the sub-contractor of the
respondent No.3 for one portion of the aforesaid works;
(iii) that disputes arose between the respondent No.1&2 on the one
hand and the respondent No.3 on the other hand and the
LPA No.753/2014 Page 2 of 7
respondents No.1&2 cancelled the appointment of the respondent
No.3 as the contractor for the aforesaid works;
(iv) that material of the appellant / writ petitioner is lying at the said
site;
(v) that the appellant / writ petitioner has learnt that the said material
is being utilized for completing the works left by the respondent
No.3;
(vi) that the appellant / writ petitioner asked the respondents No.1&2
to return the said material and to stop using the same for the
purposes of completing the works;
(vii) however no response was received thereto;
(viii)that the appellant / writ petitioner filed W.P.(C) No.4083/2014
seeking a direction to the respondents No.1&2 to return the said
material;
(ix) that the said writ petition was however withdrawn on 7 th July,
2014 with liberty to file a representation and the writ petition was
disposed of with a direction to the respondent No.2 to dispose of
the said representation within four weeks of receipt thereof;
LPA No.753/2014 Page 3 of 7
(x) that the representation so made by the appellant / writ petitioner
was however rejected by the respondent No.2, on the grounds:
(a) that the respondent No.3 was barred from subletting any
portion of the contract without prior approval of the respondent
No.2 and neither was any such approval sought nor given for
appointing the appellant / writ petitioner as the sub-contractor;
(b) that thus no cognizance of the appellant / writ petitioner as
the sub-contractor can be taken; (c) that as per the terms and
conditions of the contract, the respondents No.1&2 are at liberty
to hold and retain in their hands all materials on site and to either
sell or to use the same; (d) that the respondent No.3 was afforded
an opportunity to take away the said material against furnishing
non-revocable bank guarantee but the respondent No.3 did not
avail of the said opportunity; (e) that as per the terms and
conditions of the contracts, all materials brought to site, are to
become the property of the respondents No.1&2 and cannot be
removed, if not used and / or disposed of, till the completion of
the work; (f) that the works had not been completed as yet.
LPA No.753/2014 Page 4 of 7
Aggrieved from the aforesaid, the writ petition from which this appeal
arises, was filed.
6. The learned Single Judge has dismissed the writ petition observing
that several disputed questions are involved including whether the contract
between the appellant / writ petitioner and the respondent No.3 was
approved by the respondent No.2 and the extent of machinery and material
brought at site by the appellant / writ petitioner and the writ petition was not
the appropriate proceeding where such disputed questions can be considered.
7. The appellant / writ petitioner, in the appeal, has not controverted that
as per the contract between the respondent No.2 and the respondent No.3,
the respondent No.3 was not entitled to remove the material brought at site.
We have as such enquired from the counsel for the appellant / writ
petitioner, as to how the appellant / writ petitioner, who claims to be a sub-
contractor, can have better rights against the respondents No. 1 and 2
principal than the contractor itself.
8. The counsel for the appellant / writ petitioner states that since the
respondents No.1&2 do not recognize the appellant / writ petitioner as a sub-
contractor, the respondents No.1&2 are not entitled to enforce the conditions
in the contract with the respondents No.1&2 and since the material belongs
LPA No.753/2014 Page 5 of 7
to the appellant / writ petitioner, the appellant / writ petitioner is entitled to
remove the same and the respondents No.1&2 are not entitled to retain the
same.
9. We are unable to agree. The appellant / writ petitioner, who claims to
have entered into a back to back contract with the respondent No.3, was
aware of the terms and conditions of the contract between the respondent
No.2 on the one hand and the respondent No.3 on the other hand and cannot
now be heard to claim contrary thereto. The appellant / writ petitioner, as a
sub-contractor of the respondent No.3, is deemed to have also consented to
the terms and conditions specially those cited by the respondent No.3 in the
order dated 12th August, 2014 rejecting the representation of the appellant /
writ petitioner.
10. Even otherwise, the matter in issue is a purely contractual one, having
no element of public law and the remedy under Article 226 of the
Constitution of India, according to us is not available. The Supreme Court
in Kerala State Electricity Board Vs. Kurien E. Kalathil (2000) 6 SCC 293
held that interpretation and implementation of a clause in a contract cannot
be the subject matter of a writ petition, being in the realm of private law and
the fact that one of the parties to the agreement is a statutory or a pubic body
LPA No.753/2014 Page 6 of 7
will not of itself affect the principles to be applied. It was held that every act
of a statutory body need not necessarily involve an exercise of statutory
power. Similarly, in Godavari Sugar Mills Ltd. Vs. State of Maharashtra
(2011) 2 SCC 439 it was held that normally a petition under Article 226 of
the Constitution of India will not be entertained to enforce a civil liability
arising out of a breach of contract and the aggrieved party will have to
agitate the question in a Civil Court. It was further held that only where the
lis has a public law character or involves a question arising out of public law
functions on the part of the State or its authorities, access to justice by way
of a public law remedy will be allowed.
11. We therefore do not find any merit in the appeal and dismiss the same.
We clarify that none of the observations contained herein will have any
binding effect in the appropriate proceedings taken out by the appellant /
writ petitioner.
No costs.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE
DECEMBER 09, 2014/bs..
