id
stringlengths 14
16
| Titles
stringlengths 37
96
| text
stringlengths 5
2.68k
| source
stringlengths 34
39
|
|---|---|---|---|
a5ef268abef8-23 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | Development Authority v. Ajai Pal Singh MANU/SC/0058/1989: [1989]1SCR743; Life Insurance Corporation of India v. Escorts Ltd. MANU/SC/0015/1985 : 1986(8)ECC189 ; and Kulchinder Singh and Ors. v. Hardayal Singh Brar and Ors. MANU/SC/0507/1976: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-24 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | (1976)IILLJ204SC. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-25 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 40. Before proceeding further, what may be noted is that a writ of mandamus is a public remedy and this remedy lies, when a public authority fails to perform the duty entrusted to it by law. In other words, a writ of mandamus is issued against a person, who has a legal duty to perform, but has failed or neglected to do so. Distinguishing a case, wherein a public duty of a State is sought to be enforced, and a case, wherein a contractual obligation of a State is sought to be enforced, Professor Wade, in his well-known treatise, 'Administrative <span class="hidden_text" id="span_43"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Law', makes it clear that while a public duty is enforceable by the public law remedy of a writ of mandamus, a contractual duty is enforceable, as a matter of private law, through the avenues of civil courts. The observations made, in this regard, by Professor Wade read thus:
"..A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private laws by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-26 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 41. What, now, needs to be noted is that howsoever thin and subtle may be, there is, indeed, a real and definite line of demarcation not only between a public wrong and a private wrong, but also between a public law remedy and private law remedy. Article 226 is pre-eminently a public law remedy and is not, generally, available as a remedy against private wrongs. Resort to Article 226 can be had to enforce various rights of the public or to compel the public or statutory authorities to discharge their public duties and/or to act, in the realm of their <span class="hidden_text" id="span_45"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> public function, within the bounds of law. The remedy under Article 226 can, no doubt, be availed of even against a private body or person; but the scope of the writ of mandamus is limited to enforcement of public duty. In minimum possible words, but with extreme exactitude, clarified the Supreme Court, in Binny Limited and Anr. v. V. Sadasivan and Ors. reported in MANU/SC/0470/2005 : (2005)IIILLJ738SC, the position of law, in this regard, in these words: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-27 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "29. Thus, it can be seen that a writ of mandamus or the remedy under Article 226 is pre- eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-28 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action."
See also Kamala Kanta Kalita (Dr.) and Ors. v. Assam Cricket Association and Ors., reported in MANU/GH/0693/2006 : 2006 (1) GLT 528.
42. Thus, in the face of succinctly laid down position of law with regard to the issuance of a writ of mandamus under Article 226, what one has to bear in mind is that in a case of private wrong, in order to invoke the writ jurisdiction under Article 226, two conditions must be satisfied, namely-(i) the identity of the person, against whom the writ is sought, as a person or body, which is amenable to writ jurisdiction, and (ii) the nature of duty, which is sought to be enforced, is a public duty or has an element of public interest. In a given case, one may, perhaps, ignore the first prerequisite, namely, the identity of the person or body as a person or body amenable to writ jurisdiction, but the second prerequisite, as indicated <span class="hidden_text" id="span_49"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> hereinbefore, cannot be ignored, for, in the absence of public interest or in the absence of breach of public duty or in the absence of any public wrong having been committed, no recourse to Article 226 is possible. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-29 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 43. What also needs to be cautiously noted is that a constitutional or statutory duty is a public duty and enforceable by a writ of mandamus. To put it differently, the rights and duties go hand-in-hand. When a right is given to a person by a State, the State casts upon itself a duty to enforce such a right. Logically, therefore, when a person is given fundamental right by the Constitution, a duty rests on the State to ensure that the person realizes his fundamental rights. In a given case, therefore, if a person, aggrieved by a breach of contract, shows that though the breach is in the realm of a contract, the duty, sought to be enforced, is a constitutional or statutory duty, the remedy of a writ of mandamus may not be refused, for, it is the constitutional obligation of the High Court, under Article 226, to enforce the constitutional and statutory duties of the State and its instrumentalities. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-30 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 44. The writ petition, which has given rise to the present appeal, essentially raises a demand for payment of dues and seeks <span class="hidden_text" id="span_51"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> a writ, in the nature of mandamus, forcing the State to pay its dues. Apart from the fact that whether or not the present petitioner is entitled to receive the dues, as claimed, is in itself in dispute, the question raised is as to whether such a demand can be raised at all in a writ petition and be enforced by a writ to be issued in the nature of mandamus. Is it possible to recover unpaid dues, arising out of a contract, by invoking writ jurisdiction merely because of the fact that one of the parties to the contract is a State. That a writ petition, under Article 226, will not lie for mere recovery of an amount due and payable, under a contract, by the Government, is clear from the decision, in Improvement Trust, Roper v. S. Tejinder Singh Gujral and Ors. reported in 1995 Suppl. (4) SCC 577, wherein the Supreme Court has held, in no uncertain words, thus:
No writ petition can lie for recovery of an amount under a contract. The High Court was clearly wrong in allowing and entertaining the writ petition. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-31 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 45. However, the principle that in an appropriate case, writ jurisdiction can be invoked even to enforce a contractual obligation of the State or its instrumentality was made clear by the Supreme Court, in K.N. Guruswamy v. State of Mysore MANU/SC/0006/1954: [1955]1 SCR 305, wherein the Supreme <span class="hidden_text" id="span_53"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Court held that when a party, interested in a contract, claims that he has not received the same treatment and has not been given a chance as someone else, he is entitled to maintain a petition under Article 226. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-32 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 46. Close on the heels of the decision of the Supreme Court in K.N. Guruswamy (supra) is the decision, in DFO, South Kheri v. Ram Sanehi Singh, reported in MANU/SC/0450/1970: AIR 1973 SC 205. This was a case in which it was contended, on behalf of the appellant, before the Supreme Court, that since the dispute arose out of the terms of the contract and the DFO, under the terms of the contract, had the authority to modify any action taken by the subordinate forest authority, remedy of the respondent lay in instituting an action in the civil court and that the writ petition was not maintainable. Turning down this plea, the Supreme Court held that the impugned order had been passed by a public authority modifying the order of the subordinate forest officer without giving the respondent any opportunity of having his say in the matter and since, by the order so passed, the respondent had been deprived of a valuable right, it cannot be said that a petition under Article 226 would not be maintainable merely because of the fact that the source of right of the respondent is traceable to a contract, which <span class="hidden_text" id="span_55"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> is not statutory in nature. The relevant observations of the Supreme Court, in Ram Sanehi Singh (supra) run thus: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-33 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "We are unable to hold, that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K.N. Guruswamy's case MANU/SC/0006/1954: [1955]1 SCR 305 there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power."
47. From the decision in Ram Sanehi Singh (supra) what clearly surfaces is that even when there is a breach of contract, a writ petition under Article 226 is maintainable if the administrative order passed by a public authority, in breach of the terms of the contract, is against the principles of natural justice. Clearly, therefore, when a State decides not to pay the dues of a contractor mala fide, with ulterior motives or arbitrarily or when the State avoids payment of the dues of a contractor mala fide, with ulterior motives or arbitrarily or when the State discriminates, while making payment of the dues of the <span class="hidden_text" id="span_57"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> contractors, such a decision of the State not to pay or such an act of the State of not paying its dues cannot be said to be wholly beyond the reach of Article 226, for, what the contractor, in such a case, would be asking the writ court to do is to force the State to act in accordance with its constitutional obligation by adhering to the letter and spirit of Articles 14 and 21. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-34 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 48. In fact, it was made clear by the Supreme Court, speaking through Krishna Iyer, J. in Kulchinder Singh and Ors.
v. Hardayal Singh Brar and Ors.
MANU/SC/0507/1976:(1976)IILLJ 204 SC, that writ
jurisdiction cannot be invoked to enforce the terms of a contract merely because the contract involves a State, a statutory body or a public body, but statutory duty or sovereign and public function of a State can, indeed, be enforced by a writ court. The relevant observations made, in Kulchinder Singh (supra) proceed thus:
"...The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the State and the society.... At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellent is that the remedy of Article 226 is unavailable to enforce a contract qua State.... What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or <span class="hidden_text" id="span_59"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> sovereign or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions, but they cannot be siphoned off into the writ jurisdiction." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-35 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 49. I may, now, refer to the case of Life Insurance Corporation of India v. Escorts Ltd. (supra), wherein a Constitution Bench held that though the field of constitutional law, administrative law and public law has forged ahead of the law in England, uninhibited by the technical rules, which have hampered the development of the English Law, and though every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions, uninformed by reason, may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution, Article 14 cannot be construed as a charter for judicial review of all State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. The Constitution Bench made it clear, in Escorts Ltd.(supra), that if the action of the State is political or sovereign in character, the court will keep away from it. The court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State <span class="hidden_text" id="span_61"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> is related to contractual obligations or obligations arising out of tort, the court may, not, ordinarily, examine it unless the action has some public law character attached to it. The Constitution Bench further made it clear, in Escorts Ltd.(supra), that broadly speaking, the court will examine actions of the State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field, though the difficulty will lie in demarcating the frontiers between the public law domain and the private law field. Made it, however, explicit the Supreme Court, in Escorts Ltd.(supra), that it is impossible to draw the line, with | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-36 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | Supreme Court, in Escorts Ltd.(supra), that it is impossible to draw the line, with precision, between the frontiers of the public law domain and the private law field and that the question must be decided, in each case, with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged, when performing the action, the public law or private law character of the action and a host of other relevant circumstances. Cautioned, however, the Constitution Bench, in Escorts Ltd., that Article 14 cannot be used as a charter for judicial review of all actions of the State. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-37 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | The relevant observations made, in this regard, in Escorts Ltd. (supra), read as follows: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-38 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 101. It was, however, urged by the <span class="hidden_text" id="span_63"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> learned Counsel for the company that the Life Insurance Corporation was an instrumentality of the State and was, therefore, debarred by Article 14 from acting arbitrarily. It was, therefore, under an obligation to state to the court its reasons for the resolution once a rule nisi was issued to it. If it failed to disclose its reasons to the court, the court would presume that it had no valid reasons to give and its action was, therefore, arbitrary. The learned Counsel relied on the decisions of this Court in Sukhdev Singh; Maneka Gandhi;
International Airport Authority; and Ajay Hasia. The learned Attorney General, on the other hand, contended that actions of the State or an instrumentality of the State which do not properly belong to the field of public law but belong to the field of private law are not liable to be subjected to judicial review. He relied on O'Reilly v. Mackman (1982) 3 All ER 1124; Davy v. Spelthonne (1983) 3 All ER 278; I Congress del Partido (1981) 2 All ER 1064; R. v. East Berkshire Health Authority (1984) 3 All ER 425; and Radhakrishna Agarwal and Ors. v. State of Bihar MANU/SC/0053/1977 : | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-39 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | [1977]3SCR249. While we do find considerable force in the contention of the learned Attorney General it may not be necessary for us to enter into any lengthy <span class="hidden_text" id="span_65"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> discussion of the topic, as we shall presently see. We also desire to warn ourselves against readily referring to English cases on questions of constitutional law, administrative law and public law as the law in India in these branches has forged ahead of the law in England, guided as we are by our Constitution and uninhibited as we are by the technical rules which have hampered the development of the English Law. While we do not, for a moment, doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226or Article 32 of the Constitution, we do not construe Article 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-40 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 102. For example, if the action of the State is political or sovereign in character, the court will keep away from it. The court will not debate academic matters or concern itself with the intricacies of trade and commerce. If the action of the State is related to contractual obligations or obligations arising out of the tort, the court may not ordinarily examine it <span class="hidden_text" id="span_67"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company like any other shareholder." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-41 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 50. From the above observations made in Escorts <span class="hidden_text" id="span_69"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Ltd. (supra) it becomes clear that though Article 14 cannot be used as a charter for judicial review of all actions of the State and that every action of the State in contractual field may not, ordinarily, be examined by a writ court, the fact remains that there is no absolute bar to the exercise of writ jurisdiction under Article 226. Whether a High Court will exercise such a jurisdiction or not is a question, which must be decided in each case on the basis of its own facts, though, generally, the High Court will not entertain if the action of the State does not have any element of public interest involved. The question as to whether a High Court would interfere or not would depend, in the light of the decision of the Apex Court, in Escorts Ltd. (supra), on the nature of the action, which is impugned in the writ petition; but the exercise of writ jurisdiction is not possible without determining the distinction between public law and private law character of the duty, sought to be enforced, and a host of other relevant circumstances. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-42 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 51. Closely following the decision of the Constitution Bench, in Escorts Ltd. (supra), is the case of Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay reported in MANU/SC/0330/1989 : | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-43 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | [1989]2SCR751. In this case, the appellant, M/s. Dwarkadas & <span class="hidden_text" id="span_71"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Sons, had been a tenant on a portion of a land of the respondent Corporation, namely, Bombay Port Trust, for over 40 years, Bombay Port Trust having been constituted as a statutory corporation under the Major Ports Act. The structures, standing on the said land, were used as a part of a rice mill. Pursuant to a Town Planning Scheme of 1957, the plots were reconstituted and the port trust framed a policy to let out the reconstituted plot to the person, who was in occupation of the major portion of the plot. In terms of this policy, the trust initiated eviction proceeding against the appellant by giving them one month's notice sometime in October 1977. As the appellant had not vacated the said structures, the trust instituted a suit in December 1977, in the small causes court. The appellant pleaded mala fide and favouritism and also that the one month notice was bad in law. The trial court dismissed the suit on the ground of improper notice and did not enter into the question of mala fide. When the appellate court reversed the decision upholding the validity of the notice and also held that the question of mala fide or arbitrariness was not relevant for the eviction proceeding, a writ petition under Article 227 was filed in the High Court. As the High Court concurred with the decision of the appellate <span class="hidden_text" id="span_73"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> court, the matter was carried to the Supreme Court. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-44 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 52. In its decision, in Dwarkadas Marfatia and Sons (supra), a Three Judge Bench of the Supreme Court, having taken note of Rampratap Jaydayal v. Dominion of India reported in MANU/MH/0096/1953: AIR 1953 Bom 170 and Escorts Ltd. (supra), held that though the field of letting and eviction of tenants is, normally, governed by the Rent Act and port trust is statutorily exempted from the operation of the Rent Act on the basis of its public/government character, legislative assumption or expectation, as noted in the observations of Chagla, CJ in Rampratap Jaydayal, cannot make such conduct a matter of contract pure and simple and that these corporations must act in accordance with certain constitutional conscience and whether they have so acted, must be discernible from the conduct of such corporations. The Supreme Court clarified, in Dwarkadas Marfatia and Sons(supra), that it is not correct to suggest that in the light of the decision in Radhakrishna Agarwal(supra), a State's contractual dealings do not ever fall under public law domain and is not subject to judicial review. The court, in Dwarkadas Marfatia and Sons(supra), also clarified that even the Constitution Bench decision, in Escorts Ltd. (supra), does not <span class="hidden_text" id="span_75"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> wholly exclude State's all actions, in contractual matters, from the court's power of judicial review. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-45 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 53. The Apex Court further made it clear, in Dwarkadas Marfatia (supra), that every action/activity of the trust, which is a State within the meaning of Article 12, must be subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest and whenever there is arbitrariness in the State's action, Article 14 springs in and judicial review strikes such an action down. Making its views emphatic, the Supreme Court further made it clear, in Dwarkadas Marfatia(supra), that whatever be the activity of the public authority, it should meet the test of Article 14 and that the decision in Escorts Ltd. (supra), if read properly, does not detract from the aforesaid principles.
54. The observations made, in this regard, by the Supreme Court, in Dwarkadas Marfatia and Sons (supra), read as under:
"22. Our attention was drawn to the observations of this Court in Radhakrishna Agarwal and Ors. v. State of Bihar and Ors. MANU/SC/0053/1977 : [1977]3SCR249.. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-46 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | Reliance was also placed on the observations of this Court in Life Insurance <span class="hidden_text" id="span_77"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Corporation of India v. Escorts Ltd. and Ors. 1985 Suppl. (3) SCR 909 in support of the contention that the public corporations' dealing with tenants is a contractual dealing and it is not a matter for public law domain and is not subject to judicial review. However, it is not the correct position. The Escorts' decision reiterated that every action of the State or an instrumentality of the State, must be informed by reason. Indubitably, the respondent is an organ of the State under Article 12 of the Constitution. In appropriate cases, as was observed in the last mentioned decision, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. But it has to be remembered that Article 14 cannot be construed as a charter for judicial review of State action, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-47 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 23. The contractual privileges are made immune from the protection of the Rent Act for the respondent because of the public position occupied by the respondent authority. Hence, its actions are amenable to judicial review only to the extent that the State must act validly for a discernible <span class="hidden_text" id="span_79"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> reason, not whimsically for any ulterior purpose. Where any special right privilege is granted to any public or statutory body on the presumption that it must act in certain manner, such bodies must make good such presumption while acting by virtue of such privileges. Judicial review to oversee if such bodies are so acting is permissible. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-48 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 24. The field of letting and eviction of tenants is normally governed by the Rent Act. The port trust is statutorily exempted from the operation of Rent Act on the basis of its public/government character. The legislative assumption or expectation as noted in the observations of Chagla, CJ in Rampratap Jaidayal's case cannot make such conduct a matter of contract 'pure and simple'. These corporations must act in accordance with certain constitutional conscience and whether they have so acted, must be discernible from the conduct of such corporations. In this connection, reference may be made to the observations of this Court in S.P. Rekhi v. Union of India , reiterated in M.C. Mehta and Anr. v. Union of India and Ors. MANU/SC/0092/1986 : [1987]1SCR819, wherein at p. 148, this Court observed:
It is dangerous to exonerate corporations <span class="hidden_text" id="span_81"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> from the need to have constitutional conscience; and so, that interpretation, language permitting, which makes governmental agencies, whatever their mien, amenable to constitutional limitations must be adopted by the court as against the alternative of permitting them to flourish as an imperium in imperio. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-49 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 25. Therefore, Mr. Chinai was right in contending that every action/ activity of the Bombay Port Trust which constituted "State" within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. Reliance may be placed on the observations of this Court in E.P. Royappa v. State of Tamil Nadu MANU/SC/0380/1973 : (1974)ILLJ172SC ; Maneka Gandhi v. Union of India MANU/SC/0133/1978 : [1978]2SCR621 ; Ramana Dayaram Shetty v. International Airport Authority of India and Ors. MANU/SC/0048/1979 :
(1979)IILLJ217SC ; Kasturi Lai Lakshmi Reddy v. State of J&K and another, MANU/SC/0079/1980 : [1980]3SCR1338 ; and Ajay Hasia v. Khalid Mujib Sehravardi and Ors. etc. MANU/SC/0498/1980 :
(1981)ILLJ103SC . Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the Executive Authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article 14. The observations in paras 101 and 102 of the Escorts' case, read properly, do not detract from the aforesaid principles. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-50 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 27. We are inclined to accept the submission that every activity of a public authority, especially in the background of the assumption on which such authority enjoys immunity from the rigours of the Rent Act, must be informed by reason and guided by the public interest. All exercise of discretion or power by public authorities as the respondent, in respect of dealing with tenants in respect of which they have been treated separately and distinctly from other landlords on the assumption that they would not act as private landlords, must be judged by that standard. If a governmental policy or action even in contractual matters fails to satisfy the test of reasonableness, it would be unconstitutional. See the observations of this Court in Kasturi Lai Lakshmi Reddy and <span class="hidden_text" id="span_85"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Ramana Dayaram Shetty v. International Airport Authority of India and Ors. MANU/SC/0048/1979 :(1979)IILLJ217SC ." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-51 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 55. What is also necessary to note, in the case of Dwarkadas Marfatia(supra), is that this was a case, where the relationship between the parties to the dispute, being that of landlord and tenant, was essentially contractual in nature, yet the Supreme Court held that such a dispute is not wholly outside the purview of Article 226, for, a State's action, even under contractual relationship, has to withstand the tests of Article 14. Though to evict or not to evict a tenant is a decision governed by contractual relationship of landlord and tenant, the fact remains that while taking the decision to evict a tenant, State or public body, as the landlord, must take the decision in the public interest and while taking such a decision, State or public body cannot act arbitrarily, unreasonably, whimsically, capriciously or with ulterior motives nor can a State or public body, while taking such a decision, discriminate between one tenant and another and must, therefore, act according to 'constitutional conscience'. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-52 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 56. If the decision in Dwarkadas Marfatia(supra), is carefully read, it becomes more than abundantly clear that <span class="hidden_text" id="span_87"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> though at the first blush, the decision in Radhakrishna Agarwal (supra), appears to have laid down that the remedy of every breach of contract lies in civil suits and writ jurisdiction would never be applicable to enforce even constitutional obligations of the State in contractual matters, the later decision of the Apex Court in Dwarkadas Marfatia (supra) clearly shows that having considered the decision in Radhakrishna Agarwal (supra) and also the Constitution Bench decision in Escorts Ltd. (supra), it has clearly held that there is no absolute bar to the exercise of jurisdiction under Article 226 in a contractual matter, particularly, when the act or conduct of the State or its instrumentality is challenged on the anvil of Article 14. It is also clear from Dwarkadas Marfatia (supra), that a writ court will enforce even a contractual obligation of the State if the breach of obligation by the State fails to satisfy the test of reasonableness under Article 14, for, in such a case, what the writ court would be enforcing is the constitutional duty of the State, though such a duty might have arisen in the realm of contractual obligation. It has been further made clear, in Dwarkadas Marfatia (supra), that even in contractual matters, the State's action must be reasonable, lawful and 'on relevant ground of public interest'. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-53 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 57. What emerges from the above discussion is that when a writ petition is filed alleging breach of contractual obligation by the State or its instrumentality, the High Court shall determine whether the writ petitioner is merely demanding to enforce his contractual rights or he has raised some important questions of law and/or constitutional issues. If he aims at merely enforcing his contractual rights and raises no important question of law or constitutional issue, writ jurisdiction will not be invoked; but if the writ petitioner raises a constitutional issue, there is no absolute bar to the exercise of jurisdiction under Article 226 even in a contractual matter. This position of law was made clear in Life Insurance Corporation of India v. Asha Goel reported in (2001) 2 SCC 160, wherein the court observed as under: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-54 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "10. Article 226 of the Constitution confers extraordinary jurisdiction on the High Court to issue high prerogative writs for enforcement of the fundamental rights or for any other purpose. It is wide and expansive. The Constitution does not place any fetter on exercise of the extraordinary jurisdiction. It is left to the discretion of the High Court. Therefore, it cannot be laid down as a general proposition of law that in no case <span class="hidden_text" id="span_91"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> the High Court can entertain a writ petition under Article 226 of the Constitution to enforce a claim under a life insurance policy. It is neither possible nor proper to enumerate exhaustively the circumstances in which such a claim can or cannot be enforced by filing a writ petition. The determination of the question depends on consideration of several factors like, whether a writ petitioner is merely attempting to enforce his/her contractual rights or the case raises important questions of law and constitutional issues, the nature of the dispute raised; the nature of inquiry necessary for determination of the dispute, etc. The matter is to be considered in the facts and circumstances of each case. While the jurisdiction of the High Court to entertain a writ petition under Article 226 of the Constitution cannot be denied altogether, courts must bear in mind the self-imposed restriction consistently followed by High Courts all these years after the constitutional power came into existence in not entertaining writ petitions filed for enforcement of purely contractual rights and obligations which involve disputed questions of facts. The courts have consistently taken the view that in a case where for <span class="hidden_text" id="span_93"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> determination of the dispute raised, it is necessary to inquire into the facts for determination of which it may become necessary | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-55 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | the dispute raised, it is necessary to inquire into the facts for determination of which it may become necessary to record oral evidence, a proceeding under Article 226 of the Constitution is not the appropriate forum. The position is also well settled that if the contract entered between the parties provides an alternate forum for resolution of disputes arising from the contract, then the parties should approach the forum agreed by them and the High Court in writ jurisdiction should not permit them to bypass the agreed forum of dispute resolution. At the cost of repetition it may be stated that in the above discussions we have only indicated some of the circumstances in which the High Courts have declined to entertain petitions filed under Article 226 of the Constitution for enforcement of contractual rights and obligations; the discussions are not intended to be exhaustive. This Court from time to time disapproved of a High Court entertaining a petition under Article 226 of the Constitution in matters of enforcement of contractual rights and obligations particularly where the claim by one party is contested by the other and adjudication of the dispute requires inquiry into facts. We <span class="hidden_text" id="span_95"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> may notice a few such cases--Mohd. Hanif v. State of Assam MANU/SC/0370/1969 : [1970]2SCR197 ; Banchhanidhi Rath v. State of Orissa MANU/SC/0652/1971 : AIR1972SC843 ; Rukmanibai Gupta v. Collector, Jabalpur MANU/SC/0002/1980 : AIR1981SC479 ; Food Corporation of India v. Jagannath Dutta 1993 Suppl. (3) SCC 635; and State of H.P. v. Raja Mahendra Pal MANU/SC/0227/1999 : | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-56 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | v. Raja Mahendra Pal MANU/SC/0227/1999 : [1999]2SCR323 . | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-57 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 11. The position that emerges from the discussions in the decided cases is that ordinarily the High Court should not entertain a writ petition filed under Article 226 of the Constitution for mere enforcement of a claim under a contract of insurance. Where an insurer has repudiated the claim, in case such a writ petition is filed, the High Court has to consider the facts and circumstances of the case, the nature of the dispute raised and the nature of the inquiry necessary to be made for determination of the questions raised and other relevant factors before taking a decision whether it should entertain the writ petition or reject it as not maintainable. It has also to be kept in mind that in case an insured or nominee of the deceased insured is refused relief merely on the ground that the claim relates to <span class="hidden_text" id="span_97"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> contractual rights and obligations and he/she is driven to a long drawn litigation in the civil court it will cause serious prejudice to the claimant/other beneficiaries of the policy. The pros and cons of the matter in the context of the fact situation of the case should be carefully weighed and appropriate decision should be taken. In a case where claim by an insured or a nominee is repudiated raising a serious dispute and the court finds the dispute to be a bona fide one which requires oral and documentary evidence for its determination then the appropriate remedy is a civil suit and not a writ petition under Article 226 of the Constitution. Similarly, where a plea of fraud is pleaded by the insurer and on examination is found prima facie to have merit and oral and documentary evidence may become necessary for determination of the issue raised, then a writ petition is not an appropriate remedy." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-58 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 58. Moreover, when a writ court finds that the refusal to extend constitutional remedy of Article 226 to enforce a contractual right or obligation would drive a person, knocking at the doors of a writ court, to a long drawn litigation in the civil court causing serious prejudice to the person seeking relief <span class="hidden_text" id="span_99"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> against the State, the writ court may not, according to Asha Goel (supra), decline to interfere in such a matter and hence, reminds the Supreme Court, in Asha Goel (supra), thus: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-59 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "The pros and cons of the matter in the context of the fact situation of the case should be carefully weighed and appropriate decision should be taken." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-60 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 59. From the law, as laid down in Asha Goel (supra), it becomes transparent that when non-interference by a writ court would drive a person to a long drawn civil litigation causing serious prejudice to him, the writ court's interference is not only desirable, but even necessary. As a corollary to this proposition of law, one can safely say that when a contractor's dues are admitted by a State and the fact situation of a given case satisfies the writ court that asking the contractor to take recourse to the civil court would cause serious prejudice to the contractor, the writ court should step in. For instance, a contractor, whose dues are admitted but not paid by the State, approaches a writ court with the plea that his son is a terminal case of cancer and the State's breach of its contractual obligation of not paying its dues is not only unfair and unreasonable, but may even threaten his son's survival and existence, the High Court may, in the absence of <span class="hidden_text" id="span_101"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> any plausible explanation offered by the State for non- payment of the admitted dues, invoke its extraordinary jurisdiction under Article 226 to remedy the wrong, though such a wrong may have arisen out of the State's omission to discharge its contractual obligation, for, the High Court, in such a case, would not be merely enforcing the contractual obligation of the State, but also the State's constitutional obligation to act with reasonableness and fairness as envisaged by Article 14 and not to act in breach of the mandates thereof, which may have the effect of extinguishing the life of one of its citizens, though Article 21 guarantees that the State would act, with greatest of promptitude, in protecting the lives of its citizens against its own unreasonable and unfair actions. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-61 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 60. From the decision in Asha Goel (supra), what emerges is that ordinarily, a High Court should not entertain a writ petition, under Article 226, for mere enforcement of claims under a contract of insurance; however, the Constitution having not placed any fetters on the exercise of extraordinary jurisdiction by the High Court under Article 226, it is in the discretion of the High Court to interfere or not to interfere in a contractual matter. No exercise of discretionary power can be <span class="hidden_text" id="span_103"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> unfettered, unguided, unsettled or arbitrary, and, hence, the position of law, on a given subject, should not be completely unforeseen and legal decisions must have some standards or parameters in order to enable the people at large to know as to what the position of law, on a given subject, is. Considered thus, exercise of jurisdiction under Article 226 cannot be unfettered or arbitrary. However, it is not possible to enumerate exhaustively the circumstances in which a writ application even in contractual matter would lie, for, exercise of jurisdiction would depend upon a considerable number of factors, such as, the question as to whether the writ petitioner is merely attempting to enforce his or her contractual rights or has raised important questions of law or constitutional issues, the nature of the dispute raised and the nature of enquiry necessary for determination of the dispute, etc. In short, exercise of jurisdiction would depend on the facts and circumstances of each given case. While jurisdiction of the High Court to entertain a writ petition, under Article 226, cannot be denied altogether, the courts must bear in mind the self-imposed restrictions constitutionally followed by the High Courts not to, ordinarily, entertain writ petitions for enforcement of purely contractual rights and obligations, <span class="hidden_text" | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-62 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | entertain writ petitions for enforcement of purely contractual rights and obligations, <span class="hidden_text" id="span_105"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> particularly, when determination of such questions necessitates taking of oral evidence or when the parties had agreed to resolve their disputes, arising out of the contract, in the alternative forum selected by them. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-63 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 61. We, now, turn to the case of Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors., reported in MANU/SC/0504/1991: AIR 1991 SC 537. While considering the case of Kumari Shrilekha Vidyarthi (supra), what may be borne in mind is that it was a case in which the Government of Uttar Pradesh terminated, with the help of a general order, appointments of all the Government Counsel in all the districts of the State of Uttar Pradesh with effect from 28.02.1990 and directed preparation of fresh panel to make appointments in place of existing incumbents irrespective of the fact whether the term of the incumbent had expired or was subsisting. Validity of this action of the State was challenged by way of a number of writ petitions. In the backdrop of these facts, a Two Judge Bench of the Supreme Court, speaking through J.S. Verma, J. (as His Lordship then was), posed the question as to whether guarantee of non- arbitrariness, which is basic to the rule of law under Article 14, stands excluded from the State's action in contractual <span class="hidden_text" id="span_107"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> field. In answer to this momentous question, the court made it clear, in Kumari Shrilekha Vidyarthi (supra), that the Constitution does not envisage or permit unfairness in State actions in any sphere of its activity. Leaving no room open for doubt, the Apex Court held, in Kumari Shrilekha Vidyarthi (supra), that it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The court, | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-64 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The court, however, hastened to add that the scope and grounds on which judicial review would be permissible in contractual matters may be a different matter, but contractual matters cannot be wholly excluded from the purview of judicial review. Drawing the distinction between the contracts to which the State is a party, and the contracts to which the private parties are involved, the court, in Kumari Shrilekha Vidyarthi (supra), pointed out that while private parties are concerned with their personal interest, the State, while exercising its powers and discharging its functions, acts indubitably for public good and in public interest, for, the impact of every State action is also on the public interest and this factor alone is sufficient to import, at least, the minimal requirements of public law obligations even in the actions of the State in contractual matters. The court also pointed out in <span class="hidden_text" id="span_109"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Kumari Shrilekha Vidyarthi (supra),that though the scope of judicial review in respect of disputes, falling within the domain of contractual obligations, may be limited, the fact remains that to the extent that a challenge is posed on the ground of violation of Article 14 by alleging that the impugned action is arbitrary, unfair or unreasonable, the mere fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-65 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 14. To this extent, reiterated the court, in Kumari Shrilekha Vidyarthi (supra), the obligation of a State is of a public character and that contractual obligation cannot divest the person aggrieved of the guarantee under Article 14 of non- arbitrariness at the hands of the State in all its actions. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-66 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 62. Symbolizing the nature of character of the State, when it enters into contractual relationships, the Supreme Court made it clear in Kumari Shrilekha Vidyarthi (supra) that the State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold, while entering into a contract, and, thereafter, casting off its garb of a State and adorn the new robe of a private body during the <span class="hidden_text" id="span_111"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> subsistence of the contract enabling it thereby to act arbitrarily subject only to the contractual obligations and the remedies flowing from it. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing, observed the court, in Kumari Shrilekha Vidyarthi (supra), which militates against the concept of requiring the State always so to act, even in contractual matters. Drawing strength for the conclusion so reached from the decision in Dwarkadas Marfatia (supra) the court, in Kumari Shrilekha Vidyarthi (supra), further held that if the State is unable to produce materials to justify its action as fair and reasonable, burden on the person, alleging arbitrariness, must be held to have been discharged and the scope of judicial review, howsoever limited in contractual matters, must remain open to ensure that State action is not vitiated by the vice of arbitrariness. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-67 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 63. In Kumari Shrilekha Vidyarthi (supra), the court also took the view that even assuming that it is necessary to import the concept of presence of some public element in a State action, in the realm of contractual obligations, to attract Article 14, the fact remains that the ultimate impact of all actions of the State or a public body <span class="hidden_text" id="span_113"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> being on public interest, requisite public element is also present in contractual matters. Held, therefore, the court, in Kumari Shrilekha Vidyarthi (supra), that it finds it difficult and unrealistic to exclude from the purview of judicial review the State actions in contractual matters after the contract has been made, in order to test the validity of the actions of the State on the anvil of Article 14. The relevant observations, made at paras 21, 22, 23, 24, 28, 29, 30 and 33 in Kumari Shrilekha Vidyarthi (supra), are reproduced herein below: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-68 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "21. The Preamble of the Constitution of India resolves to secure, to all its citizens, justice, social, economic and political and equality of status and opportunity. Every State action must be aimed at achieving this goal. Part IV of the Constitution contains 'Directive Principles of State Policy' which are fundamental in the governance of the country and are aimed at securing social and economic freedoms by appropriate State action which is complementary to individual fundamental rights guaranteed in Part III for protection against excesses of State action, to realise the vision in the Preamble. This being the philosophy of the Constitution, can it be said that it contemplates exclusion of Article 14 non-arbitrariness which is basic <span class="hidden_text" id="span_115"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> to rule of lawfrom State actions in contractual field when all actions of the State are meant for public good and expected to be fair and just? We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion, it would be alien to the constitutional scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-69 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 22. There is an obvious difference in the contracts between private parties and contracts to which the State is a party. Private parties are concerned only with their personal interest whereas the State while exercising its powers and discharging its functions acts indubitably, as is expected of <span class="hidden_text" id="span_117"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> it, for public good and in public interest. The impact of every State action is also on public interest. This factor alone is sufficient to import at least the minimal requirements of public law obligations and impress with this character the contracts made by the State or its instrumentality. It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-70 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-71 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 24. The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitution and thereafter permitting it to cast off its garb of State to adorn the new robe of a private body during the subsistence of the contract enabling it to act arbitrarily subject only to the contractual obligations and remedies flowing from it. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is <span class="hidden_text" id="span_121"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual, engaged in similar activities, being primarily for personal gain, which may or may not promote public interest. Viewed in this manner, in which we find no conceptual difficulty or anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-72 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 28. Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-73 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 29. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. See Ramana Dayaram Shetty v. International Airport Authority of India MANU/SC/0048/1979 : (1979)IILLJ217SC and Kasturi Lal Lakshmi Reddy v. State of Jammu and Kashmir MANU/SC/0079/1980 : [1980]3SCR1338 . In Col. A.S. Sangwan v. Union of India 1980 Suppl. SCC 559 : 1981 SCC (L&S) 378 while the discretion to change the policy in exercise of the executive power, when not trammelled by the statute or rule, was held to be wide, it was emphasized as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be <span class="hidden_text" id="span_125"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> sufficient to refer only to two recent decisions of this Court for this purpose. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-74 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 30. In Divarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay MANU/SC/0330/1989 : [1989]2SCR751 , the matter was re-examined in relation to an instrumentality of the State for applicability of Article 14 to all its actions. Referring to the earlier decisions of this Court and examining the argument for applicability of Article14,, even in contractual matters, Sabyasachi Mukharji, J. (as the learned Chief Justice then was), speaking for himself and Kania, J. reiterated that: (SCC p. 304, para 22) "every action of the State or an instrumentality of the State, must be informed by reason...actions uninformed by reasons may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution". Ranganathan, J. did not express any opinion on this point but agreed with the conclusion of the other learned judges on the facts of the case. It is obvious that the conclusion on the facts of the case could not be reached by Ranganathan, J. without examining them and this could be done only on the basis that it was permissible to make the judicial review. Thus, Ranganathan, J. also applied that <span class="hidden_text" id="span_127"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> principle without saying so. In view of the wide ranging and, in essence, all pervading sphere of State activity in discharge of its welfare functions, the question assumes considerable importance and cannot be shelved. The basic requirement of Article 14 is fairness in action by the State and we find it difficult to accept that the State can be permitted to act otherwise in any field of its activity, irrespective of the nature of its functions when it has the | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-75 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | act otherwise in any field of its activity, irrespective of the nature of its functions when it has the uppermost duty to be governed by the rule of law. Non- arbitrariness, in substance, is only fair play in action. We have no doubt that this obvious requirement must be satisfied by every action of the State or its instrumentality in order to satisfy the test of validity. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-76 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 33. No doubt, it is true, as indicated by us earlier, that there is a presumption of validity of the State action and the burden is on the person who alleges violation of Article 14 to prove the assertion. However, where no plausible reason or principle is indicated nor is it discernible and the impugned State action, therefore, appears to be ex facie arbitrary, the initial burden to prove the arbitrariness is discharged shifting onus on the State to justify its action as fair and reasonable. If the State is unable to <span class="hidden_text" id="span_129"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> produce material to justify its action as fair and reasonable, the burden on the person alleging arbitrariness must be held to be discharged. The scope of judicial review is limited as indicated in Dwarkadas Marfatia case to oversee the State action for the purpose of satisfying that it is not vitiated by the vice of arbitrariness and no more. The wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review in such cases. It is not for the courts to recast the policy or to substitute it with another which is considered to be more appropriate, once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case. As indicated by Diplock, LJ in Council for Civil Services Union v. Minister of Civil Service (1984) 3 All ER 935 the power of judicial review is limited to the grounds of illegality, irrationality and procedural impropriety. In the case of arbitrariness, the defect of irrationality is obvious." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-77 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 64. What emerges from the observations, made in Kumari Shrilekha Vidyarthi (supra),is that even after having <span class="hidden_text" id="span_131"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> entered into a contract, the State cannot act arbitrarily, unreasonably or unfairly merely because of the fact that its actions are in the realm of a contract. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-78 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 65. Yet another decision is the case of ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., reported in MANU/SC/1080/2003: (2004) 3 SCC 553. In this case, the fourth respondent entered into a contract with a State owned corporation of Kazaksthan on 26.08.1993. As per the original agreement, payment, for the product (tea) exported, was to be made by the Kazak Corporation by barter of goods mentioned in the schedule to the said agreement within 120 days of the date of delivery by the exporter. The agreement also provided that such payment to be made by Kazak Corporation shall be guaranteed by the Government of Kazaksthan. By a modified agreement, it was agreed between the parties that if the contract of barter of goods could not be finalized for any reason, then, Kazak Corporation would pay the exporter for the goods received by it, in US dollars, within 120 days from the date of the delivery. After having entered into the contract, the respondent concerned assigned a part of the said contract to ABL Corporation Ltd. on the same terms on which it had <span class="hidden_text" id="span_133"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> received the contract from Kazak Corporation. On a direction issued by the Reserve Bank of India that the risk, arising out of the export of the tea made by the appellant, shall be guaranteed, the appellant approached Export Credit Guarantee Corporation of India Ltd. to insure risk of payment of consideration involved in the said contract of export. Pursuant to the request so made, the Export Credit Guarantee Corporation of India Ltd. issued a comprehensive policy covering the risk. On the failure of the Government of Kazaksthan to fulfil its guarantee, the appellants made a claim on | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-79 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | of the Government of Kazaksthan to fulfil its guarantee, the appellants made a claim on the first contract of payment without first consulting it and it had, therefore, no obligation to compensate the appellants for the loss suffered by it. Having failed to make the first respondent adhere to the contract of insurance, the respondent concerned filed a writ petition. Though the learned Single Judge of Calcutta High Court issued a writ, the Division Bench reversed the order on the ground that the case involved disputed questions of fact, which was not adjudicable in a writ proceeding under Article 226. It was in these factual scenario that the case came up before the Supreme Court, wherein the first respondent's submission, in effect, was thus: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-80 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "7. Ms. Indira Jaising, learned senior <span class="hidden_text" id="span_135"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> Counsel appearing for the first respondent, submitted that on facts and circumstances of this case, a writ petition was not maintainable nor can it be construed as an appropriate remedy. She pointed out that the subject matter is a dispute arising out of a contract and is not a matter falling under the purview of administrative law. According to her, the doctrine of fairness and reasonableness applies only in the exercise of statutory or administrative actions of a State and not in the exercise of a contractual obligation and issues arising out of contractual matters will have to be decided on the basis of the law of contract and not on the basis of the administrative law. It was her argument that at the most in matters involving statutory contracts where action of the State involves a public duty, a writ may lie but in the instant case, the contract was neither a statutory contract nor the duty of the first respondent under the contract had any public law element involved in it. According to the learned Counsel, this contract was a negotiated contract and not a standard form contract. She also supported the finding of the appellate bench of the High Court that the facts involved in the case are all disputed facts requiring evidence to be led, therefore, <span class="hidden_text" id="span_137"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> the appropriate remedy could only be a suit. Hence, the impugned judgment did not call for any interference." | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-81 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 66. Having noted the above submissions made on behalf of the respondents, the Supreme Court held that one of the questions that falls for consideration is whether a writ petition under Article 226 of the Constitution of India is maintainable to enforce a contractual obligation of the State or its instrumentality. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-82 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 67. Responding to the question posed above, the Supreme Court has held in ABL International Ltd. (supra), that the question as to whether a writ petition under Article 226 is maintainable to enforce a contractual obligation of the State is no more res integra. Points out the court in ABL International Ltd. (supra), that as early as, in K.N. Guruswamy (supra), the Supreme Court had already held that a person interested in a contract has a right to receive the same treatment and is entitled to be given the same chances as anybody else. Referring to the observations made in K.N. Guruswamy (supra), the court, in ABL International Ltd. (supra), has also pointed out that in K.N. Guruswamy (supra), the court has held that on a given set of facts, if the action of a <span class="hidden_text" id="span_139"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> State is found to be arbitrary even in a matter of contract, a writ court is, depending upon the facts of the case, empowered to grant relief under Article 226. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-83 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 68. Having taken note of the case of Ram Sanehi Singh (supra), which followed K.N. Guruswamy (supra), and also Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. reported in MANU/SC/0036/1983 : AIR 1983 SC 848 , which followed Ramana Dayaram Shetty v. International Airport Authority of India reported in MANU/SC/0048/1979 : (1979)IILLJ217SC and, then, having referred to the case of Escorts Ltd. (supra), the court, in ABL International Ltd. (supra), has pointed out that the decision in Escorts Ltd. (supra), does not lay down, as a rule, that in matters of contract, the courts' jurisdiction under Article 226 stands wholly ousted. On the contrary, points out the Supreme Court in ABL International Ltd. (supra), the Constitution Bench's use in Escorts Ltd. of the words 'court may not, ordinarily, examine it unless the action has some public law character attached to it' indicates that in a given case, on the existence of the required factual matrix, a remedy under Article 226 will be available.
69. Having noted various judicial pronouncements with regard to maintainability of writ petitions aimed at enforcing contractual obligations of the State or its instrumentality and having discussed the law on the subject, the Apex Court, in para 27 of ABL International Ltd. (supra), culled out the legal principles governing maintainability of such a writ petition in the following words:
"27. From the above discussion of ours, following legal principles emerge as to the maintainability of a writ petition:
(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-84 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | (b) Merely because some disputed questions of facts arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.
(c) A writ petition involving a consequential relief of monetary claim is also maintainable."
70. From what has been culled out above, there remains no manner of doubt that in an appropriate case, the remedy, under Article 226, would be available to enforce <span class="hidden_text" id="span_143"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> contractual obligations of the State, its instrumentality and all public bodies.
71. Having discussed the law on the subject and taking into account the facts in ABL International Ltd. (supra), the Court finally observed, at para 53, thus: | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-85 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | "53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution. Thus, if we apply the above principle of applicability of Article 14 to the facts of this case, then we notice that the first respondent being an instrumentality of State and a monopoly body had to be approached by the appellants by compulsion to cover its export risk. The policy of insurance covering the risk of the appellants was issued by the first respondent after seeking all required information and after receiving huge sums of money as premium exceeding Rs. 16 lacs. On facts we have found that the terms of the policy do not give room to any ambiguity as to the risk covered by the first respondent. We are also of the considered opinion that the <span class="hidden_text" id="span_145"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> liability of the first respondent under the policy arose when the default of the exporter occurred and thereafter when Kazaksthan Government failed to fulfil its guarantee. There is no allegation that the contracts in question were obtained either by fraud or by misrepresentation. In such factual situation, we are of the opinion, the facts of this case do not and should not inhibit the High Court or this Court from granting the relief sought for by the petitioner."
(Emphasis supplied) | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-86 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | (Emphasis supplied)
72. From the above observations made in para 53, what emerges is that when the State or its instrumentality acts contrary to public good, public interest, unfairly, unjustly and unreasonably in the realm of its contractual obligations, arising out of even non-statutory contract, it really acts contrary to the constitutional guarantee given under Article 14 and, in an appropriate case, when this guarantee is found to have been denied, remedy under Article 226 would be available to undo the wrong done by the State and to command the State to pay its unpaid dues, which it is, under its contractual obligation, bound to pay, but has unfairly, unjustly and unreasonably refused to pay. <span class="hidden_text" id="span_147"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span>
73. Logically, therefore, so long as the decision, in ABL International Ltd. (supra), holds the field, there can be no manner of doubt that when the State acts contrary to public good and public interest or unfairly and unjustly or unreasonably, even in the realm of its contractual obligations, the constitutional guarantee, given in Article 14, would be attracted. Consequently, therefore, even in the case of contractual obligations, if the action of the State does not withstand the tests of Article 14, the constitutional remedy of Article 226 would be available to the aggrieved person. Conversely speaking, no writ under Article 226 will lie for mere enforcement of contractual obligations of the State unless State's action is shown to be against public good and public interest or unfair or unjust, unreasonable, arbitrary or discriminatory or in denial of guarantee of equality enshrined under Article 226. | https://indiankanoon.org/doc/173691638/ |
a5ef268abef8-87 | Md. Nizamuddin vs The State Of Bihar & Ors on 15 May, 2014 | 74. Having decided the applicability of the law, we direct that the petitioner-appellant's dues shall be calculated in accordance with law, as has been decided above, and the payment shall be made to the petitioner-appellant by the respondents within a period of three months from today.
75. In the result, and for the reasons discussed above, <span class="hidden_text" id="span_149"> Patna High Court LPA No.2 of 2014 (10) dt. 15-05-2014</span> this appeal partly succeeds and the impugned order, dated 11.09.2013, passed, in C.W.J.C. No.4270 of 2006, shall, accordingly, stand set aside and modified to the extent as indicated above.
76. With the above observations and directions, this Letters Patent Appeal shall stand disposed of.
77. In the facts and circumstances of the present case, we refrain from granting any cost.
(I. A. Ansari, J)
(Samarendra Pratap Singh, J)
PNM/ AFR | https://indiankanoon.org/doc/173691638/ |
0eea247304c0-0 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL WRIT JURISDICTION CASE NO.8317 OF 2009
======================================================
M/S ADITYA BIRLA TELECOM LTD., A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT ADITYA BIRLA CENTRE, A-WING, 4TH FLOOR, S. K. AHIRE MARG, WORLI-MUMBAI-400030, AND ITS REGIONAL/BIHAR SERVICE AREA OFFICE AT FIRST FLOOR SUMITRA SADAN BUILDING, BORING CANAL ROAD, NEAR BORING ROAD CROSSING, POLICE STATION SRIKRISHNAPURI, DISTRICT PATNA THROUGH ITS AUTHORIZED SIGNATORY, SHREEKANT, SON OF SHRI K.P. SHARMA, RESIDENT OF 301, KUMARSHAIL APARTMENT, BORING ROAD, POLICE STATION SHREE KRISHNA PURI, DISTRICT PATNA .... .... PETITIONER/S VERSUS
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
2. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
3. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL COMMISSIONER - CUM - ADDITIONAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
4. THE EXECUTIVE ENGINEER, NEW CAPITAL DIVISION, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-1 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 5. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, GOVERNMENT OF BIHAR, SAMASTIPUR
6. THE EXECUTIVE ENGINEER, PATNA CITY ROAD DIVISION, GULZARBAGH, ROAD CONSTRUCTION DEPARTMENT, PATNA
7. THE EXECUTIVE ENGINEER, NATIONAL HIGHWAY DIVISION, GAYA .... .... RESPONDENT/S ====================================================== WITH CIVIL WRIT JURISDICTION CASE NO.13483 OF 2009 ======================================================
1. M/S BHARTI AIRTEL LTD., A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE SITUATED IN NEW DELHI AND ONE OF ITS BRANCH OFFICES SITUATED AT 4TH FLOOR, UDAY BHAWAN, MARWARI AWAS GRIH, FRASER ROAD, P.S.- KOTWALI, DISTT.- PATNA THROUGH ITS AUTHORIZED SIGNATORY, HITESH KUMAR SINGH, SON OF SRI NILMOHAN SINGH, RESIDENT OF 15, AJAY-NILAYAN APARTMENT, NAGESHWAR COLONY, P.S.- BUDHA COLONY, 2 / 21 TOWN AND DISTRICT PATNA .... .... PETITIONER/S VERSUS
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
2. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-2 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 3. THE ENGINEER-IN-CHIEF - CUM - ADDITIONAL COMMISSIONER - CUM - ADDITIONAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
4. THE EXECUTIVE ENGINEER, NEW CAPITAL DIVISION, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA
5. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, GOVERNMENT OF BIHAR, SAMASTIPUR
6. THE EXECUTIVE ENGINEER, PATNA CITY ROAD DIVISION, GULZARBAGH, ROAD CONSTRUCTION DEPARTMENT, PATNA .... .... RESPONDENT/S ====================================================== WITH CIVIL WRIT JURISDICTION CASE NO.7394 OF 2009 ====================================================== M/S RELIANCE TELECOM LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT H-BLOCK, FIRST FLOOR, DHIRUBHAI AMBANI KNOWLEDGE CITY, NAVI MUMBAI-400710 AND HAVING ITS CIRCLE OFFICE AT 7TH/8TH FLOOR, KASHI PLACE, NEW DAKBUNGLOW, PATNA-800001 THROUGH ITS CONSTITUTED ATTORNEY NAMELY RANJEET K. GURTOO, SON OF P.N. GURTOO HAVING PATNA ADDRESS AS M/S RELIANCE TELECOM LTD, 7TH/8TH FLOOR, KASHI PLACE, NEW DAKBUNGLOW, PATNA-800001 .... .... PETITIONER/S VERSUS
1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-3 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 2. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
3. THE EXECUTIVE ENGINEER, PATNA CITY ROAD DIVISION, GULZARBAGH, ROAD CONSTRUCTION DEPARTMENT, PATNA
4. THE EXECUTIVE ENGINEER, ROAD DIVISION, DEHRI-ON-SONE, ROAD CONSTRUCTION DEPARTMENT, DEHRI-ON-SONE
5. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, SAMASTIPUR .... .... RESPONDENT/S 3 / 21 ====================================================== WITH CIVIL WRIT JURISDICTION CASE NO.12493 OF 2009 ======================================================
1. VODAFONE ESSAR SPACETEL LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-4 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 2. VODAFONE ESSAR SOUTH LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 BOTH ARE DULY REPRESENTED THROUGH THEIR CONSTITUTED ATTORNEY SRI RANJAN KUMAR, SON OF SRI V. N. SINGH, RESIDING AT 171-A/2, NEW PATLIPUTRA, G. D. MISHRA PATH, POLICE STATION PATLIPUTRA, DISTRICT PATNA .... .... PETITIONER/S VERSUS
1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, PATNA
2. THE ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, NEW SECRETARIAT, OFF. BAILEY ROAD, PATNA
3. THE PRINCIPAL SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, OFF BAILEY ROAD, PATNA
4. THE JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, ROAD CONSTRUCTION DEPARTMENT, NEW SECRETARIAT, PATNA
5. THE EXECUTIVE ENGINEER, ROAD DIVISION, BHAGALPUR
6. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, BETTIAH .... .... RESPONDENT/S ====================================================== WITH CIVIL WRIT JURISDICTION CASE NO.9169 OF 2009 ====================================================== | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-5 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 1. VODAFONE ESSAR SPACETEL LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 4 / 21 | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-6 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 2. VODAFONE ESSAR SOUTH LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 BOTH ARE DULY REPRESENTED THROUGH THEIR CONSTITUTED ATTORNEY SRI RANJAN KUMAR, SON OF SRI V. N. SINGH, RESIDING AT 171-A/2, NEW PATLIPUTRA, G. D. MISHRA PATH, POLICE STATION PATLIPUTRA, DISTRICT PATNA .... .... PETITIONER/S VERSUS
1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, PATNA
2. THE ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, NEW SECRETARIAT, OFF. BAILEY ROAD, PATNA
3. THE PRINCIPAL SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, OFF BAILEY ROAD, PATNA
4. THE JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, ROAD CONSTRUCTION DEPARTMENT, NEW SECRETARIAT, PATNA
5. THE EXECUTIVE ENGINEER, NEW CAPITAL ROAD DIVISION, ROAD CONSTRUCTION DEPARTMENT, PATNA
6. THE TOWN COMMISSIONER, MUZAFFARPUR MUNICIPAL CORPORATION, MUZAFFARPUR | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-7 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 7. THE EXECUTIVE OFFICER, NAGAR PARISHAD, BUXAR .... .... RESPONDENT/S ====================================================== Appearance :
(In CWJC No.8317 of 2009) For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocate Mr. Rajeev Ranjan Prasad, Advocate Mr. Ashish Giri, Advocate Mr. Akash Chaturvedi, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V (In CWJC No.13483 of 2009) For the Petitioner/s : Mr. S.D.Sanjay Mr. Gautam Kejriwal Mr. Sushila Agrawal For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V (In CWJC No.7394 of 2009) For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocae Mr. Anil Kumar Jaiswal, Advocate Mr. Ashok Giri, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V 5 / 21 (In CWJC No.12493 of 2009) For the Petitioner/s : Mr. Rajeev Ranjan Prasad, Advocate Mr. Nilanjan Chatterjee, Advocate Mr. Raghwendra Kumar Singh, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V (In CWJC No.9169 of 2009) For the Petitioner/s : | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-8 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | Mr. Rajeev Ranjan Prasad, Advocate Mr. Nilanjan Chatterjee, Advocate Mr. Raghwendra Kumar Singh, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN CAV ORDER 14 21-03-2013 These batch of writ applications have been filed challenging the Government resolution dated 28.03.2008 by which a decision has been taken by the State Government through the Road Construction Department to levy Rs. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-9 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 5,000/- per kilometer per year as land usage charges for allowing the petitioners to lay underground optical fibre cables on the lands belonging to the State Government.
The Government of India formulated a new telecom policy in the year 1994 aimed at giving highest priority to the development of telecom services in the country in conformity and in furtherance of Government of India‟s Economic Policy. The mobile cellular telecommunication essentially requires laying down the optical fibre cables as per network planning for ensuring that signal of adequate length is available to all users and as such, the Government of India granted licenses under Section 4 of the India Telegraph Act, 1885 giving permission 6 / 21 to the companies in the said business to lay down underground telecom cable. The Government of India, Ministry of Road Surface Transport came out with a circular dated 29th September, 2000 whereby they provided mobile guidelines for streamlining the provisions of right of way to telecom service licensees and also to the infrastructure providers. This document has been annexed in almost all the writ applications. The mobile guidelines have been formulated, keeping in view the object of creating a robust telecommunication infrastructure with adequate bandwidth at affordable rates and in order to promote Development and Proliferation of Information Technology, Electronic Governance, E-Commerce, convergence of Information, Communication and Entertainment sectors so as to improve the state of economy, enhance the quality of life of the citizens and to ensure development of urban and rural areas with equity throughout the country. This document has recommended the broad guidelines under which right of way permissions may be granted to licensed telecom operators and registered infrastructure for laying telecom cables, ducts under, over, along, across, in or upon a property vested in or under the control or management of a local authority or of any other person including public authority, public corporation, autonomous body, State Government or Central Government in their respective licensed service area 7 / 21 during the pendency of their licence. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-10 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | Initially, when permission was granted to the petitioners‟ companies to lay down the optical fibre cables, a resolution was passed on 11.07.2005 vide memo no. 4564(S) me, giving certain directions to the companies which were utilizing the right of way on the lands which belong to the Road Construction Department. Laying down of optical fibre cables essentially required that the earth/road had to be dug up at various points so that the optical fibre cables could be installed underground. The Government gave certain directions regarding the manner in which the companies should act for restoring the land/road to its original form, directing the companies to pay a certain cost so that the Road Construction Department can reconstruct the roads and restore them. It may be mentioned here that the Government of India has presently exempted the mobile companies from any charge with respect to usage of land belonging to the National Highway.
In the State of Bihar, the Petitioners‟ Companies were permitted to lay down the optical fibre cables without any demand for usage of the land. While doing so, the Road Construction Department vide memo no. 575(E) me, dated 05.02.2002 addressed a letter to the M/s Reliance Telecom and others by different memo numbers, which gave them permission to lay down optical fibre cables. As per the letter, 8 / 21 which is contained in Annexure-A to the counter affidavit, which speaks of the development in the field of telecommunication and the Government‟s intention to frame a policy regarding laying down of optical fibre cables. It specifically states that the Petitioners‟ Companies are being granted temporary permission with the condition that once the State Government frames the policy, the Petitioners‟ Companies would be bound by the said policy and would have to act and accept the provisions of the said policy. Accordingly, the Petitioners‟ Companies were allowed to lay down their optical fibre cables. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-11 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | In pursuance of the aforesaid permission, a resolution was taken by the State Government issued vide letter no. 4501(S) dated 28.03.2008, wherein the State Government has stated that since the telecom companies have developed, grown and established themselves as business enterprises, they no longer come under the category of being granted a subsidy as such they would have to pay Land Usage Charges at the rate of Rs. 5000/- per kilometer per year. Subsequent to the issuance of this letter, notices were issued individually to all the stake holders, which is under challenge on various grounds, which are as follows:- 1. Whether the land usage charges is a rent or not?
2. Whether the land usage charge is impost if not rent?
9 / 21
3. Whether any impost in nature of tax, fees, cess can be levied without any authority of law merely on executive orders?
4. Whether the said impost is not on the usage of land, but on laying of optical fibre cables, which is governed under entry 31 read with entry 96 and 97 of the Union List in the 7th Schedule?
5. Whether even if assuming that the State has power to demand such impost, whether the same is bad in law on ground of there being no reason to justify the rates so imposed by it?
All these issues have been amalgamated in the judgment. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-12 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | All these issues have been amalgamated in the judgment.
I shall begin with the power of the State Government to demand Land Usage Charge for utilization of its land by companies/individuals. It has been argued that the Union Government has the power to enact laws with respect to Post and Telegraph; telephones, wireless, broadcast and other like forms of communications under Entry 31 of Schedule-VII of the Constitution. It is further being argued that it is the Union Government, under Entry 96, has the power to charge fees in any matter under the Union List, as such, the State Government could not have raised the demand asking for Land Usage Charge. In this context, it is also argued that the demand is by way of 10 / 21 tax/fees/impost and as such, it can only be demanded or charged from a company/individual if there is a corresponding law enacted by the State Government which allows it to make such a demand. Admittedly, the State Government has not taken the help of any law enumerated regarding the said demand. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-13 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | At the outset, it is quite obvious and requires no citation of any case to point out that the State Government has not made any law or granted any license under the topics covered by Entry 31 in the 7th Schedule of the Union List, rather if at all, it would come under Entry 18 of the State List, which reads as "Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization", which are the subject matters for which the State Government has the power to take decisions, legislate and issue policies with regard to the administration and management of land which belongs to the State Government or any of its local bodies. Thus, there should be no confusion regarding this aspect of the matter and the State is well within its rights to take a policy decision regarding the lands belonging to it.
The next question that has been argued is that the demand of Rs. 5000/- per kilometer per year for land 11 / 21 usage is by way of a tax. In this context, I would like to first begin by making a distinction between a lease and a license and a fee and a tax. It has been argued that the said demand would come within the definition of a tax/license/fee. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-14 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | In the case of Associated Hotels Of India Ltd vs R. N. Kapoor [AIR 1959 SUPREME COURT 1262], the Supreme Court has distinguish between a license and a fee. One R. N. Kapoor filed an application before the Rent Controller, New Delhi, alleging that he was a tenant of the spaces in the cloak rooms under the Hotel (appellant) and asking that standard rent might be fixed in respect of them. The Hotel opposed the application, contending that the Act did not apply and no standard rent could be fixed. Section 11 of the Delhi Rent Control Act defines "premises" as any building or part of a building which is or is intended to be let separately.............. but does not include a room in a dharamsala, hotel or lodging house." It was contended that a room in a hotel need not necessarily be a bed room, but may be for example be a dining room, a beauty parlour etc. It has been argued that such spaces provide amenities to the persons to use the hotel and, therefore, are part of the hotel. The Apex Court held that there is a mark distinction between a lease and the license. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-15 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | Section 105 of the Transfer of Property Act 12 / 21 defines a lease of immovable properties as transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108, the licensee is entitled to be put in possession of the property, a lease is, therefore, a transfer of an interest in the land. The interest transfer is called a lease hold interest. On the other hand, Section 52 of the Indian Easement Act defines a licence as "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." The Apex Court laid down the following propositions.
" (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form ;
(2) the real test is the intention of the parties-whether they intended to create a lease or a licence;
(3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive 13 / 21 possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease." | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-16 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | Thus, in the present case, it cannot be said that the State Government had granted a license to the Petitioners‟ Companies nor can it be lawfully said that they had leased the properties as the Companies did not come into exclusive possession over the lands that were utilized or are to be utilized by them. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-17 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | Another judgment which would be relevant for the purposes of explaining what is a tax or fee is the case of Commissioner, Hindu Religious Endowments, Madras vs. Lakshmindra ThirthSwamiar, [AIR 1954 SC 282]. The facts of this case are not very relevant for the purposes of the present dispute. The power of the State Government to enact laws on subject of religious and charitable endowments which is covered by Entry 28 of List-III, Schedule-VII of the Constitution was not under challenge, the challenge was to the demand of an annual contribution contained in Section 76 of the Charitable Endowment Act which was invoked at the time when the matter was taken up. It was argued that the provisions was amounting to a tax as Section 76 of the Act empowered the Government to charge the amount that they were required to pay by way of the salaries, pensions and other remuneration to the 14 / 21 Commissioner, Deputy Commissioners, Assistant Commissioners and other officers of the religious institutions employed for the purposes of this Act including the expenses incurred by the Area Committees. The Apex Court has referred to the definition of tax by Lathan, C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board [60 C.L.R. 263, 276]. A "tax", according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered". The main essence of a tax is that it is compulsorily payable, it is imposed by a statutory body without the tax payer consent and the payment is enforceable by law. It does not confer any special benefit to any particular individual i.e. to say there is no element of quid pro quo between the taxpayer and the public authority. A fee, on the other hand, is generally defined to be a charge for a special service rendered to individuals by some | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-18 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | the other hand, is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service. The distinction between a tax and a fee, lies primarily in the fact that a tax is levied as part of common burden while a fee is payment for special benefit or privilege. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-19 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | Counsel also refers to the judgment of Gupta Modern Breweries vs. State of J &K and Others [(2007) 6 SCC 15 / 21 317]. The Excise Commissioner under rule 17 of the Jammu & Kashmir Distillery Rule sought to impose charges on account of salary of Excise Department staff which were to be recovered from the management to the extent of 50 per cent of the total expenditure. In several decisions, such as CCE vs. Chhata Sugar Co. Ltd. [(2004) 3 SCC 466, The Apex Court has held that the stand of the concern authority that they were rendering services by deputing staff for the purposes of ensuring proper manufacture cannot be held to be a fee as there is no quid pro quo between the fee charged and the services rendered. This case referred to really does not help the Petitioners‟ Companies except that it highlights the differences between a tax and a fee. It is obvious that in the present case, the demand of Land Usage Charge cannot come within the ambit of a tax or a fee. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-20 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | The decision cited by the Counsel for the Petitioners‟ Companies, which I may merely mention in passing would not be applicable in the facts of this case as they deal with the imposition of tax and fees, are, Consumer Online Foundation and Others vs. Union of India and Others [(2011) 5 SCC 360], Commissioner of Income Tax, Udaipur. Rajasthan vs. McDowell and Company Limited [(2009) 10 SCC 755], Bholanath Gupta and Others. Vs. the State of Bihar and Another [1975 BBCJ 397], Bimal Chandra Banerjee vs. State of Madhya Pradesh [AIR 1971 SC 517], 16 / 21 Shree Digvijay Cement Co. Ltd. And another vs. Union of India and another [AIR 2003 SC 767]. All these cases have been cited for the propositions that the power to impose tax or fee can only be exercised under any law authorizing such levy and not by the executive power of the State. Especially, Counsel has referred the case of Union of India and another vs. Association of Unified Telecom Service Providers of India and other [(2011) 10 SCC 543. The relevant facts are that the licenses granted to the service providers stipulated a license fee, which was payable by the service providers within a stipulated time. The licensees defaulted during the period 1994 to 1999, in payment of license fee and made a representation to the Government of India, Ministry of Telecommunications for relief against the license fee for the survival of the telecom industry. The Government of India considered their representations and offered a new package. There were disputes regarding the terms of the license, which was referred to the Tribunal for adjudication. The points that were considered by the Supreme Court in this judgment do not cover any part of the issues raised by the petitioners in these cases. The findings of the Apex Court that only the Central | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-21 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | issues raised by the petitioners in these cases. The findings of the Apex Court that only the Central Government and no other has a right to carry telecommunication activities cannot be doubted. In the present cases, the licenses have been granted by the Central Government. The State Government is not taking 17 / 21 any fee for grant of license; rather the demand is with respect to usage of land belonging to the Road Construction Department or the local authorities. It is also clear that the State Government is not making a demand of any tax as Land Usage Charge cannot come within the purview of a tax. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-22 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | It is next argued that there is no statutory law under which the term "Land Usage" would be included. It is submitted that even if it is argued that the State is the landlord and it is charging rent, then it should be under the provisions of the law laid down under which the State can demand a rent. An attempt has been made to refer to the Acts governing the field with respect to the power of the State Government to charge any form of tax, fee, rent for the usage of land to indicate that the State Government has no authority by an executive action to demand the Land Usage Charge. Referring to the provisions of the Bihar Tenancy Act, it has been submitted that the Act came into being to consolidate certain enactments relating to the law of landlord and tenant. The regulations earlier regarding the subject matter stood only in favour of the Zamindars and Tenure holders, which had nothing in it to safeguard the interests of tenants who were nothing but tenants at will. The Act sought to bring into existence "the occupational right and fixation of fair and equitable rent" and to 18 / 21 regularize the status of raiyats after the Zamindari rights were abolished. Under the Bihar Tenancy Act, sub-Section (3) of Section 3, the tenant has been defined as a person who holds land under another person and is, or but for a special contract would be liable to pay rent for that land to that person. Sub-section (4) of Section defines a landlord which mean " a person immediately under the tenant under whom a tenant holds, and includes the Government." Rent mean whatever is lawful payable or deliverable in money or kind be a tenant to his landlord on account of use or occupation of the land held by the tenant. It has been submitted that the Bihar Tenancy Act defines in detail the manner in which the landlord or for that matter a proprietor may charge for the land. It may be noted that the Bihar Tenancy Act | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-23 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | that matter a proprietor may charge for the land. It may be noted that the Bihar Tenancy Act refers to the right of the raiyat as well as the under-raiyat of land and the State Government charges a rent under the Act from the tenant or an under-raiyat for occupation of the land. In the present case, the provision of the Bihar Tenancy Act would not be applicable as the State Government is not charging the "rent" within the meaning of the Bihar Tenancy Act from the Petitioners‟ Companies. The demand under the Bihar Tenancy Act would not make the demand illegal by virtue of not being covered under the Act. The application of the Bihar Tenancy Act is in different circumstances and for different purposes. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-24 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 19 / 21 There is no dispute about the fact that the State Government or the agencies under it are the owners or in other words the landlords and anyone seeking to derive any benefit from the lands owned by the State Government must pay under the general law. The demand is raised depending on the purpose for which the land is being utilized. Obviously, the Acts such as the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 would not be applicable under a situation such as this.
The introduction and expansion of telecommunication services and facilities have grown up in the last decade or two, have facilitated easy communication and access to information. The requirements to facilitate smooth functioning of the modern telecommunication system require certain measures which were not envisaged 20 years back. There can be no doubt that use of a facility confers a benefit to the persons who is using the said facility, naturally such benefits cannot come for free either for the beneficiaries or the providers of such facilities. The Government in these extraordinary circumstances is not required to frame laws, rather it would appear that Land Usage Charge is a type of a rent demanded by the Government for conferring certain benefits to the users. The outcome of the facility i.e. providing telecommunication is for the benefit of the public at large. | https://indiankanoon.org/doc/198757445/ |
0eea247304c0-25 | Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013 | 20 / 21 Simply put „rent‟ is compensation for the use of land. In this particular case, the Government has taken a policy decision to impose rent which is charged for use of street by Telegraph Companies. The term „rental‟ is properly applied to the charge imposed by a city (in this case the Government) on a telegraph company for the privilege of using the street, allies, and public places of the city, graduated by the amount of such use; for it is not a privilege of licence tax, the amount paid for not being graduated by the amount of business, no sum fixed for the privilege of doing business, it is more in the nature of a charge for use of property belonging to a town, city and the like.
It may be noted here that the petitioners in these cases were issued a letter that they would be allowed to use the lands belonging to the Government in whatever department, subject to framing of a policy. The petitioners utilized the lands with their eyes and ears open understanding the impact of the said letter, and, therefore, they cannot be heard to say that the policy framed is de hors the law.
Referring to the submission on behalf of the petitioners that there are no fixed criteria that the amount charged is excessive is a stand, which can be redressed by the petitioners if they are so advised by approaching the concerned department. On this ground, the Court cannot 21 / 21 hold that the policy framed by the Government charged for use of the roads is beyond the scope of the powers of the State Government.
In the result, these writ applications are dismissed.
(Sheema Ali Khan, J) Prabhakar Anand/- | https://indiankanoon.org/doc/198757445/ |
8c79d10f2daa-0 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3483 of 2007
1. Phuljharia Devi, w/o Late Munka Rai.
2. Bhola Rai, S/o Late Munka Rai.
Both resident of Mohalla-Paharpur, P.S.-
Gardanibagh, Town and district-Patna.
............................................ Petitioners
Versus
1. The State of Bihar through the Collector, Patna.
2. The Police Employees House Construction Society Ltd.,
through its Secretary, Anisabad, P.S.-Gardanibagh,
District-Patna.
3. The Secretary, Police Employees House Construction
Society Ltd. Anisabad, P.S.-Gardanibagh, District-Patna.
............................................ Respondents
For the Petitioner : Mr. Anurag Shukla, Advocate
For the State : Mr. Lalit Kishore, A.A.G.-III.
For the Society : Mr. K.K. Upadhyay, Advocate.
P R E S E N T
HON'BLE JUSTICE MIHIR KUMAR JHA
-----------
5. Mihir Kr. Jha, J. In this writ application the two petitioners claiming to be the land owners have prayed for the following relief: | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-1 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | "A writ of Mandamus or any other
appropriate writ or order or
direction be issued commanding the
respondent authorities to pay to the petitioner the balance of due compensation for their lands, which were acquired by the State of Bihar for the benefit of the respondent society, at the rate determined by this Hon‟ble Court and affirmed by the Hon‟ble Supreme Court." | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-2 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | It is the case of the petitioners, as projected with full sincerity by Mr. Anurag Kumar Shukla, learned counsel for the petitioners, that the piece of land belonging to the husband of petitioner no.1 was acquired way back by the State of Bihar for the benefit of Police Employees House Construction Society (hereinafter referred to as „the Society‟) way back in the year 1977-78 under the provisions of Land Acquisition Act (hereinafter referred to as „the Act‟). The award under section 11 of the Act was prepared in the name of petitioner no.1 and the land holders including petitioner no.1 had thereafter sought reference under section 18 of the Act leading to institution of L.A.Case No. 73/1982. The award given by the Land Acquisition Judge in the aforesaid L.A.Case was also made subject matter of several first appeals and they were disposed of by a common judgment dated 3.2.1994 in F.A.No. 121/1985 whereby and whereunder the award given by the Land Acquisition Judge was modified fixing rate of compensation at the rate of Rs. 4400/- per katha besides payment of some additional statutory amount in terms of the Act. It is not in dispute that the State of Bihar had also taken the matter to the Apex Court by filing S.L.P.No. 14886-938 of 1995 (Civil Appeals No. 2889-2941 of 1997) and they were disposed of by a common order dated 12.4.1997 affirming the judgment of this Court dated 3.2.1994 in its entirety. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-3 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | It is the case of the petitioner no.1 that in terms of the judgment of this Court as affirmed by the Apex Court she was entitled for payment of Rs. 4,45,161.16 paise (principal amount Rs. 1,17,069.81 paise and interest as on 3.4.2000 Rs. 3,28,091.35 paise), but on an impression created by the Society, respondent no.3, that the amount payable to them was only Rs. 3,57,450/- they had accepted a cheque of Rs. 3,57.450/-, whereafter the execution case pending before the Execution Court was withdrawn.
The petitioners, therefore, have claimed that by fraudulent action of respondent no.3 society they were deprived of payment in terms of the judgment of this Court and were forced to accept the payment of lesser amount which led them looser of a sum of Rs. 87,711.16 paise. Thus, the whole case of the petitioners is that this Court should now direct the respondents to pay the petitioners the balance of compensation of Rs. 87,711.16 paise with interest as they were/ are still entitled for full payment of Rs. 4,45,161.16 paise, an amount payable under the order of this Court in terms of judgment in F.A. No. 121/1985. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-4 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | In this case two separate counter affidavits have been filed, one by respondent no.1 the State of Bihar and the other by the Society, respondent no.3. From the reading of the counter affidavit of the State it would appear that a preliminary objection has been taken that since the petitioners had in terms of the agreement between them and respondent no.3 society accepted the payment through cheque dated 15.3.2001 for a sum of Rs. 3,57,450/- and had withdrawn the execution case No. 10/1996, they cannot be permitted to now raise this issue after a period of six years and that too by filing a writ petition. The State somehow has also tried to put up a picture that while it was taking steps for arranging the funds of the society for payment of compensation in terms of the award as modified by this Court and affirmed by the Apex Court, the petitioners by their own action having entered into the negotiation with the society respondent no.3 had accepted the payment and as such, there would be no liability for the State to make payment of compensation.
Respondent no.3, on the other hand, in its counter affidavit has taken a plea that after the judgment of the Apex Court an agreement was arrived into between the petitioners and the respondent society and in terms of the agreement the payment of Rs. 3,57,450/- was made to the petitioners. It is the case of the respondent society that the petitioners having undertaken in the said agreement that after receiving payment of Rs. 3,57,400/- they shall have no claim grievance against the judgment debtors i.e. Respondents and its being acted upon in letter and spirit cannot be permitted to raise much less re-open the issue for payment of compensation. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-5 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | The respective stands in the pleadings of the parties, therefore, lead to the first and foremost question as to whether this writ petition for payment of amount of award under the Act after disposal of execution case in the Court below is maintainable?
Since the plea of alternative remedy was raised by the respondents by way of a Preliminary objection, this Court has to note the submission of Mr. Lalit Kishore, learned Addl. Advocate General No.III, who has submitted that the provisions of the Act being self contained, would stand as a bar to the remedy under Article 226 of the Constitution of India would for payment of compensation under the Act. In this respect he has relied on the provisions of section 53 of the Act which makes the Code of Civil Procedure applicable to the proceedings under the Act. Taking a clue from section 53 of the Act learned counsel has proceeded that once the award is made under section 18 of the Act and gets confirmed in appeal in terms of section 54 of the Act, the remedy for the land holder to claim the amount of compensation under award is only by way of execution of the award which is a decree in terms of section 26(2) of the Act. It is, thus, the submission of the learned AAGIII that if there is any iota of evidence of fraud as pleaded by the petitioners for claiming payment of balance amount of award, the remedy for the petitioners would be under section 47 of the Code of Civil Procedure (C.P.C.) read with its Order 23. In nut shell the submission of the learned counsel is that the petitioners ought to have moved the same executing court and having elected a forum of the executing court they cannot be allowed to change it by now taking recourse to the remedy under Article | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-6 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | 226. In this context reliance was placed by him on the judgment of the Apex Court in the case of Swetamber Sthanakwasi Jain Samiti vs. Alleged Committee of Management Sri R.J.I. College, Ara, reported in (1996) 3 SCC 11 and the Division Bench judgment of this Court in the case of Sachidanand Roy & ors. vs. the State of Bihar & ors., reported in 1998(1) PLJR 889, as also in the case of Abijit Ganguly vs. Sri Md. Jalaluddin, reported in 1997(2) PLJR 1007. It was finally submitted by the learned AAGIII that in a given situation, the petitioners could have also availed the remedy under section 48 C.P.C. and in any event there would be no limitation for impeaching the order of the executing court with regard to disposal of the execution case without payment of full amount of award. In this context he has placed reliance on a judgment of Privy Council in the case of Oudh Commercial Bank Ltd., Fyzabad vs. Thakurain Bind Basni Kuer & ors., reported in AIR 1939 P.C. 80. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-7 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | Rebutting the aforementioned submissions of the learned AAG III Mr. Shukla has submitted that the payment of award being part of a fundamental right guaranteed under Article 31 of the Constitution as was available in the year 1977-78 in view of acquisition of the land made in that period, there would be no waiver of fundamental right and to support himself he would place reliance on the judgment of the Apex Court in the case of Olga Tellis & ors. vs. Bombay Municipal Corporation & ors., reported in AIR 1986 S.C. 180. He has also placed reliance on paragraph 79 of the judgment of the Apex Court in the case of Minerva Mills Ltd. & ors. vs. Union of India & ors., reported in AIR 1980 S.C. 1789 and the judgment of the Apex Court in the case of M.P.State Agro Industries Development Corporation vs. Jahan Khan, reported in AIR 2007 S.C. 3153. He has also placed strong reliance on a judgment of Full Bench of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna Bhavani vs. The Land Acquisition Officer, Peddapuram & ors., reported in AIR 2005 A.P. 365 as also another judgment of the Apex Court in the case of Kamleshwar Prasad vs. Pradumanju Agarwal, reported in 1997(2) PLJR 86 (S.C.). | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-8 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | In the opinion of this Court the preliminary objection raised by the Respondents as pressed by the learned Addl. Advocate General No. III must be upheld that the present writ application seeking enforcement of an award under the Act is not maintainable. The reasons for the same are quite simple. As noted above, in the submission of the learned AAGIII there is a complete mechanism for payment of compensation after acquisition of land of the land holder by the State for public purposes or for a company. Such mechanism includes reference to a civil court on the quantum of compensation and making of an award by the civil court after considering the evidence of the parties which in terms of section 26(2) of the Act is a decree. Section 26 of the Act reads as follows:
"26. Form of awards.-(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub- section, together with the grounds of awarding each of the said amounts. (2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2) and section 2, clause (9) respectively, of the Code of Civil Procedure, 1908." | https://indiankanoon.org/doc/49275886/ |