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Chattar Singh Vs. State of Punjab and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 37 of 1953
Judge
Reported inAIR1953P& H239
ActsConstitution of India - Article 226; Contract Act, 1872 - Sections 24
AppellantChattar Singh
RespondentState of Punjab and anr.
Appellant Advocate D.D. Khanna, Adv.
Respondent Advocate S.M. Sikri, Adv. General
Cases ReferredNaubat Ral v. Union Of India
Excerpt:
..... - 2 the contract which is complained of was made on 12-12-1952, and was to begin from 4-12 1952, and was to continue up to 3-12-1953. in this agreement there is a clause (clause 7) which gives to the government the right to cancel the contract without assigning any reason and without their being liable for any compensation and this could be done at any moment......preliminary objection the learned advocate general has submitted that article 226 is not meant to enforce contracts or to prevent the breach of those contracts. there is no provision in the contract act which prohibits contracting out by the state and in this particular case there is discrimination of any kind whatsoever. in support of his submission that in its supervisory jurisdiction this court should not issue any order for the enforcement of a contract, he relies on an english judgment 'ex parts pering' (1836) 111 e. rule 1040 (a). this was a suit in which the petitioner wanted to enforce his right under a patent and littledale j. said: 'the claim seems to be in the nature of a quantum meruit for the use of the patent. we cannot giant the 'mandamus'. patteson j. observed.'the.....
Judgment:

Kapur, J.

1. This is a rule directed against the State Government under Article 226 to show cause why a writ of 'mandamus' should not be issued in regard to the contract entered into between the petitioner and the state.

2 The contract which is complained of was made on 12-12-1952, and was to begin from 4-12 1952, and was to continue up to 3-12-1953. In this agreement there is a clause (Clause 7) which gives to the Government the right to cancel the contract without assigning any reason and without their being liable for any compensation and this could be done at any moment. The submission of the petitioner is that his contract was put an end to 'as a result of executive action which was capriciously taken and the action of the Government is 'mala fide' and that it has resulted in a breach of his fundamental right which he claims under Article 14 of the Constitution.

3. Article 14 provides for equality before- the law and is in the following terms: 'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. According to the petitioner, the breach of fundamental right lies in this that Clause 7 is discriminatory and the provision contained therein deprives him of the right to go to a Court of law to enforce a suit for compensation and undue favour has been done to the person in whose favour the contract has now been made.

4. By way of preliminary objection the learned Advocate General has submitted that Article 226 is not meant to enforce contracts or to prevent the breach of those contracts. There is no provision in the Contract Act which prohibits contracting out by the State and in this particular case there is discrimination of any kind whatsoever. In support of his submission that in its supervisory jurisdiction this Court should not issue any order for the enforcement of a contract, he relies on an English judgment 'Ex parts Pering' (1836) 111 E. Rule 1040 (A). This was a suit in which the petitioner wanted to enforce his right under a patent and Littledale J. said: 'The claim seems to be in the nature of a quantum meruit for the use of the patent. We cannot giant the 'mandamus'. Patteson J. observed.

'The claim, if valid, must be founded on a contract. But we cannot grant a 'mandamus' to a public board ordering them to carry a contract into effect.' And Coleridge J. concurred:

5. Bose J. in -- 'Dubar Goala v. Union of India', AIR 1952 Cal. 496 (B), said at p. 498: 'It is an elementary proposition that a 'mandamus' does not lie to enforce or restrain the performance of a contractual obligation: -- 'P. K. Banerjee v. L. J. Simonds', AIR 1947 Cal. 30V at pp. 314-315 (C). Further it is inapproriate to grant a declaration in an application under Article 226 that a particular contract is illegal and therefore unenforceable because it contains a provision for 'begar' or forced labour. The petitioners have voluntarily entered into the contract. There is no suggestion that at the initial stage when they first came into contact with the Railway Contractor (opposite party No. 4) they were compelled to enter into the agreement under threat or duress. Even if the agreement had in fact been entered into under duress the remedy would be by an action and not under Article 226 of the Constitution. It is because the porters offered to undertake the work of a porter on the terms and conditions of a contract applicable to all porters of the same class that they have rendered themselves liable to do this work of two hours a day for the Railway. It is open to the petitioners to give up the work of railway porters and remove themselves from the jurisdiction of the railway administration or to cancel their obligation with the railway contractor. The very idea of a contract or agreement negatives any suggestion of forced labour.'

The Patna High Court In -- 'Bukhtiarpur Bihar Light Rly. Co., Ltd. v. State of Bihar', AIR 1951 Pat 231 (D), seemed to be of the same opinion. Das J. said at p. 241:

'None of those decisions are any authority for the proposition that a party who has entered into an agreement with another party can ask a superior Court for writ of 'mandamus' under Article 226 when illegally dispossessed by the latter party in breach of the agreement, instead of going to the ordinary Civil Court of competent jurisdiction for the necessary reliefs. I have great doubt if Article 226 of the Constitution can be invoked in a case of this nature. The aggrieved party in this case can get an effectual and adequate remedy by an ordinary action in the Civil Court -- for enforcement of the agreement, for recovery of possession and damages, if any. The power to issue writs under Article 226 of the Constitution is an extraordinary power, and in several recent decisions of this Court it has been held that where there is an alternative adequate remedy, this Court will be reluctant to exercise its powers under Article 226.'

6. What counsel for the petitioner wishes me to do is that I should first embark on an inquiry and find out whether there is a breach of contract and then enforce it in my supervisory jurisdiction by directing the State not to break that contract and the chief ground that he gives for this is that thereby a breach of his fundamental right would be prevented. I cannot see what fundamental right arises in the case of a contract such as this. The contract was 'entered into between the State and the petitioner after tenders had been called and the petitioner's tender was accepted. I do not see that there is any kind of discrimination introduced in this case by the mere fact of there being a clause authorising the State to put an end to the contract between the State and the petitioner and making the contract with somebody else. Two judgments have been relied upon by Mr. D. D. Khanna. One is -- 'Earbier v. Connolly', (1884) 113 US 27 (E). That was a case of a laundry and the order made by the Municipal authorities was that no laundry should work between the hours of 10 in the night and 6 in the morning. This was upheld on the ground that this was within the police powers of the State. I cannot see how the observations of Field J. help the petitioner in this case. The other case relied upon by Mr. D. D. Khanna was from the district of Columbia, ---'Shelley v. Kraemer', (1947) 334 US 1 (P). That was a case where a contract had been entered into between two private parties and one of the restrictions in the contract was that the transferee shall be debarred from transferring the property to any Negro. This was held to be against public policy of the United states and therefore the Court refused to enforce this part of the contract. There is no such thing in the present case.

7. In this Court we have held in -- 'Naubat Ral v. Union Of India', AIR 1953 PunJ 137 (G) that provisions of Article 226 do not apply for getting a declaration. I cannot see how the provisions of that Article can be used for purposes of enforcement of a contract or to prevent a breach of contract. I am therefore of the opinion that this petition should be dismissed and I would therefore discharge the rule with costs. Counsel's fee Rs. 75/-. Rule discharged.


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