Delhi High Court
M/S Shri Ram Raja Sarkar Lok Kalyan ... vs Unique Identification Authority ... on 1 October, 2015
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.8930/2015
M/S SHRI RAM RAJA SARKAR
LOK KALYAN TRUST ..... Petitioner
Through: Mr. Vikas Sharma, Adv.
Versus
UNIQUE IDENTIFICATION AUTHORITY
OF INDIA & ANR ..... Respondents
Through: Mr. Sanjeev Narula, Ms. Meha
Rashmi, Advs. and Mr. Ajay Kalra,
Advs. for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 01.10.2015
1. On 18th September, 2015 when this petition came up first before this
Court the following order was passed:-
"3. The petition seeks a direction to the respondent No.1
Unique Identification Authority of India (UIAI) to
review the rate of penalties levied on the petitioner
under a contract entered into with the petitioner and
to rationalise the structure of the penalties in terms of
the Revised Methodology for Enforcing Process
Guidelines and Data Quality issued by the respondent
No.1 UIAI. Mandamus is also sought to the
respondent No.1 UIAI to release the balance amounts
due and payable to the petitioner.
4. The petition, though in the garb of mandamus, is but
for recovery of money. The relationship of the
petitioner with respondent No.1, UIAI is purely
contractual. If according to the petitioner, any monies
are due to the petitioner from the respondent No.1
UIAI under the said contract, the remedy of the
petitioner is under the ordinary law by way of
arbitration if applicable or a suit. The writ petition
would not lie.
5. It is however not very evident from a reading of the
petition as to under which clause of the contract, the
penalties are being levied. The counsel for the
petitioner, on enquiry, has been unable to show so.
6. None appears for the respondents inspite of advance
copy stated to have been given.
7. Mr. Sanjeev Narula, Advocate present in the Court is
requested to accept notice and obtain instructions
particularly on the said aspect.
8. List on 1st October, 2015."
2. The counsel for the petitioner has today argued further and has also
handed over in the Court a copy of the Notification dated 28 th January, 2009
along with The National Identification Authority of India Bill, 2010 and has
relied upon Godavari Sugar Mills Limited Vs. State of Maharashtra (2011)
2 SCC 439 and Piramal Healthcare Limited Vs. Union of India 2013 (202)
DLT 15.
3. Per contra the counsel for the respondent Unique Identification
Authority of India (UIAI) has argued with the assistance of a note on
arguments and has handed over (i) the draft of the Memorandum of
Understanding between the respondent no.1 UIAI and its Registrars, (ii) the
Registrar On-Boarding Process (Version 1.2), (iii) Request for Empanelment
of Enrolling Agencies published by the respondent no.1 UIAI on 19th May,
2014, (iv) the Release Order dated 20th May, 2014 and (v) the Office
Memorandum dated 4th July, 2014 qua rationalisation of amounts withheld
from financial assistance on account of reported deficiencies.
4. I have further considered the maintainability of the writ petition.
5. Supreme Court, in Joshi Technologies International Inc. Vs. Union
of India (2015) 7 SCC 728, on a conspectus of the case law has held that
though there is no absolute bar to the maintainability of the writ petition
even in contractual matters or where there are disputed questions of fact or
even when monetary claim is raised, at the same time discretion lies with the
High Court which under certain circumstances, can refuse to exercise. It was
further held that 'normally' the High Court would not exercise such a
discretion and would not examine the issue unless the action has some
public law character attached to it and if there are very serious disputed
questions of fact which are of a complex nature and require oral evidence for
their determination and that money claims per se particularly arising out of
contractual obligations are normally not to be entertained except in
exceptional circumstances. It was further explained that if the contract
between the private party and the State/instrumentality and/or agency of
State is under the realm of a private law and there is no element of public
law, the normal course for the aggrieved party is to invoke the remedies
provided under ordinary civil law rather than approaching the High Court
under Article 226 of the Constitutional of India and invoking its
extraordinary jurisdiction.
6. Judged in this light, the case of the petitioner in a nutshell is (i) that
for the total Aadhaar Cards generated by the petitioner the petitioner has
received Rs.3,56,10,322/- against the total of Rs.5,62,33,742/- leaving a
balance of Rs.2,06,23,420/-; (ii) that as per the reconciliation report issued
by the respondent no.1 UIAI, a penalty of Rs.6,63,400/- has been imposed on
the petitioner against demographic errors of 4712 enrolments and a penalty
of Rs.1,86,67,100/- has been imposed on the petitioner against 42814
biometric and process errors; and, (iii) that the packets which have been
rejected due to demographic errors and biometric errors, if got generated,
then the value of the same was Rs.14,12,680/- but the exorbitant penalty of
total Rs.1,93,30,500/- (i.e. Rs.1,86,67,100/- + Rs.6,63,400/-) has been
imposed.
7. It is thus evident that the petitioner does not controvert liability for
penalty. The only dispute is as to the quantum of the penalty. However the
petitioner has not cited any clause in the contract to demonstrate that the
penalty imposed by the respondent no.1 UIAI on the petitioner is contrary
thereto. All that the petitioner contends is that the rate at which penalty has
been imposed is exorbitant and needs rationalisation/review.
8. In this regard the contention of the counsel for the respondent no.1
UIAI of the procedure for empanelment of enrolling agencies as the
petitioner becomes relevant. It is the contention of the respondents that the
enrolling agencies enter into contracts with the Registrar appointed by the
respondent no.1 UIAI for different States and it is the Registrars who inform
the respondent no.1 UIAI about the engagement of the enrolling agencies.
9. It is not the case of the petitioner that it has been singled out in any
manner in the application of the rate at which the penalty has been imposed.
It is also not the case of the petitioner that the respondent no.1 UIAI was not
entitled to lay down the rate of penalty.
10. In these circumstances, when the petitioner is one perhaps of the
hundreds of enrolling agencies engaged, I find no reason to entertain this
petition. If the respondents have deducted any amount in excess of what they
under the contract are entitled to deduct out of the dues of the petitioner, the
petitioner upon establishing the same in a properly constituted civil
proceeding would be entitled to recovery thereof. No public law character of
the claim of the claim of the petitioner has been established. The claim in the
petition, as earlier observed, remains a money claim.
11. I therefore hold the writ petition to be not maintainable and dismiss
the same. Needless to state the petitioner shall be entitled to avail of the
appropriate remedy in law for recovery of its contractual dues if any from
the respondents.
No costs.
RAJIV SAHAI ENDLAW, J.
OCTOBER 1, 2015
'pp'
(corrected and released on 30th January, 2016)
