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Indian Tobacco Corporation by Its Managing Partner, N. Krishnaswami and ors. Vs. the State of Madras, Represented by the Secretary to the Government of Madras, Food Department, Fort St. George, Madras - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberWrit Appeal Nos. 53 to 56 of 1953
Reported inAIR1954Mad549; (1954)IMLJ429
ActsConstitution of India - Article 226
AppellantIndian Tobacco Corporation by Its Managing Partner, N. Krishnaswami and ors.
RespondentThe State of Madras, Represented by the Secretary to the Government of Madras, Food Department, Fort
Advocates:K.S. Sankara Ayyar and ;T.B. Balagopal, Advs.
DispositionAppeal dismissed
Cases ReferredState of Orissa v. Madangopal
.....of mandamus--suit for injunction--difference between--when and for what purpose writ will issue--remedy not alternative to usual proceedings by way of suit;where the appellants applied for the issue of writs of mandamus against the state for preventing it from committing a breach of contract which, they alleged, the state threatened to commit,;held: the applications are misconceived. there is a vital difference between the prerogative writ of mandamus and an action of mandamus in england. an action of mandamus which is provided by statute there with provision for interlocutory mandamus corresponds to a suit claiming a mandatory injunction under our law. in the present case, a suit for injunction is the appropriate remedy.;the writ is only granted to compel the performance of..........of the government's contractual obligations. it was therefore submitted that the court should issue a writ of mandamus or other appropriate writ directing the state of madras to forbear from considering or accepting the new tenders called for by the government by their notice dated 3rd july 1953 published on 8th july 1953 or doing any act in derogation of the petitioners' rights under the contract in their favour till the termination thereof on 30th june 1954.3. this and the three other similar applications were dismissed by subba rao j. without even notice to the state. he made a short order thus :"the petitioners' case is that the government is committing an anticipatory breach of contract. if so he can have his remedies under general law, i do not think this is a fit case for.....
1. These four appeals preferred under Clause 15 of the Letters Patent against the common judgment of Subba Rao J. disposing of Jour applications under Article 226 of the Constitution of India Involve the same point and may be disposed of together. It will be convenient to refer to the facts in one of the applications, namely, W. P. No. 568 of 1953. The facts in the other applications are substantially identical.

2. The petitioners in W. P. No. 56? of 1953, namely, the Indian Tobacco Corporation, are a partnership firm carrying on business at Madras. In June 1951 the Madras Government called for tenders for the distribution (by sale) of Ammonium Sulphate and Superphosphate fertilisers in the State of Madras for three years from July 1951 to end of June 1954 from firms of repute and standing having depots and branches in such of the districts of the Madras State in which they desired to take up distribution. The petitioners were one of the firms which sent tenders. The Government accepted the tender made by the petitioners as well as the tenders by 13 other firms for distribution of the fertilisers throughout the Presidency. The petitioners were allotted the districts of Anantapur, Bellary, Cuddappah, Chit-toor, Kurnool and Guntur for distribution. The contract was to terminate on 30th June 1954 automatically, subject however to the condition that the contract was liable to be terminated earlier without notice if the Government of India decided to discontinue the Central Fertiliser Pool arrangement and throw open the fertiliser business to the trade, in which case the stocks received by the Government or still to be received by them under the Central Pool arrangement should continue to be sold by the tender firms according to the terras of the agreement until the said stocks were disposed of.

The price at which the fertilisers were supplied by the Government to the tender firms was fixed as well as the price at which they had to be sold to the ryots. But these latter were so fixed as to allow the firms a commission of Rs. 15-8-0 per ton to cover their expenses and profit. This amount of commission was subsequently reduced in April 1953 to Rs. 12 per ton. On 8th July 1953 the Director of Agriculture, Madras, invited by advertisement in the newspapers tenders for the sale of Ammonium Sulphate in terms more or less identical with the tender notice issued by the Government in 1951. The petitioners alleged that tenders had been received from several firms and the Government were considering them for acceptance. The petitioners charged that as the contract with them subsisted till 30th June 1954 invitation for fresh tenders was a breach of the Government's contractual obligations. It was therefore submitted that the court should issue a writ of Mandamus or other appropriate writ directing the State of Madras to forbear from considering or accepting the new tenders called for by the Government by their notice dated 3rd July 1953 published on 8th July 1953 or doing any act in derogation of the petitioners' rights under the contract in their favour till the termination thereof on 30th June 1954.

3. This and the three other similar applications were dismissed by Subba Rao J. without even notice to the state. He made a short order thus :

"The petitioners' case is that the Government is committing an anticipatory breach of contract. If so he can have his remedies under general law, I do not think this is a fit case for issuing writ. Dismissed."

4. Mr. K. S. Sankara Aiyar, learned counsel for the appellants, contended that the writ of mandamus was the appropriate remedy to which they were entitled in the circumstances of this case and that even if a writ of mandamus as such could not be issued, directions could be issued under Article 226 which would give the appellants the relief sought by them, namely, a prevention of the threatened breach of contract by the Government.

5. It appears clear to us that the prerogative writ of mandamus is not available in this case. The nature of the Writ of Mandamus is thus described in Halsbury's Laws of England, Hail-sham Edn. 2nd Edn. volume 9, Section 1269 : "The writ of mandamus is a high prerogative writ of a most extensive remedial nature, and is, in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to supply defects of justice; and accordingly it will Issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient, beneficial and effectual."

Among the conditions precedent to issue of a writ of mandamus the following have a material bearing on the facts of the present cases :

(1) The writ is only granted to compel the performance of duties of a public nature. It will not accordingly issue for a private purpose, that is to say, for the enforcement of a mere private right (ibid Section 1304).

(2) The court will not interfere to enforce the law of the land by the extraordinary remedy of a writ of mandamus in cases where an action at law will lie for complete satisfaction.

6. Mr. Sankara Aiyar was unable to cite to us any authority for the position that a writ of mandamus could be granted for the enforcement of contractual obligations, for which there is a remedy by an action at law in the ordinary course, All that he was able to do was to rely upon certain passages in text books to show that mandamus had been granted even in respect of contractual obligations. He relied upon a passage in Chaudhri's High Prerogative Writs, Vol. 1 at page 561, which sets out a summary of the decision of a Pull Bench of the Hyderabad High Court. The case related to an abkari contract which the petitioners in that case had entered into with the Government under which they were given the right to sell liquor at certain shops. For certain reasons which it is not necessary to mention, notice was served on them for cancellation of the contract and its re-auction. The petitioners thereupon moved the High Court for a writ. The learned Chief Justice was of the opinion that the petition would not lie. He held that the action of the Excise Commissioner pertained to breach of a contract which he had been empowered to execute as the agent of the Government by virtue of the Excise Act and that as a suit could be filed against the Government for breach of contract it would not be proper to decide the claims of the parties in proceedings by way of writ. The alleged breach of contract could be wholly compensated by money. The other two learned Judges made observations in their judgments that it could not be accepted as a principle that a writ could never issue in contractual matters. Khaliluzaman Siddiqui J. said:

"If all the other conditions necessary for the issue of writ are otherwise present in the case, the issue of the writ cannot be denied simply on the ground that the claim of the petitioner is based on a breach of contract, tinder the said circumstances also the opposite party may be under such statutory obligation that he might be prevented from exceeding his jurisdiction or acting beyond his powers."

We are unable to derive much assistance from this decision of the Hyderabad High Court as summarised by the learned author and we do not know on what authority the learned Judges who differed from the learned Chief Justice based their conclusion. There is another passage in the same volume where reference is made to the decision of Gentle J. as he then was in -- 'P. K. Banerji v. L. J. Simonds', AIR 1947 Cal 307 (A). In that case the Liaison Officer (Disposals) sold iron scrap to one B who paid the price into the treasury but delivery was refused. B was Informed by the Assistant Controller of Salvage that the Liaison Officer had no authority to sell and the contract was cancelled. Subsequently an auction sale of the scrap was advertised in a newspaper under the instructions of the Regional Commissioner of Disposals. B thereupon filed an application under Section 45 of the Specific Relief Act 'inter alia' for an order directing the Assistant Controller and Regional Commissioner to forbear from advertising for sale of the scrap. The learned Judge, dismissed the application. After referring to the decision of the Judicial Committee in -- 'Commissioner of Income-tax, Bombay Presidency and Aden v. Bombay Trust Corporation Ltd.', AIR 1936 PC 269 (B), he observed,

"Their Lordships make no reference to a right under contract being enforceable by Mandamus; they clearly enunciate that the duty imposed upon a public servant, which can be the subject of Mandamus is a statutory duty .... Even if the respondents had been parties to the appellant's contract, any duty or obligation falling upon them out of the contract cannot be enforced by the machinery of Section


It is well known that Section 45 of the Specific Relief Act embodied all the important conditions under which a writ of mandamus would issue from the Court of King's Bench in England.

7. Mr. Sankara Aiyar next referred us to Short on Informations, Mandamus and Prohibition. At page 268 the learned author refers to certain decisions of the English courts in which mandamus was granted at the instance of an applicant who was legally entitled to a sum of money and had no other means of obtaining it. But we fail to see how these cases help the appellants because the ground on which mandamus was granted in those cases was that there was no legal remedy by action to recover money to which the applicant was legally entitled. The learned author points out further on at page 331 that in several of such cases it is now settled that mandamus will not be granted because there is a complete remedy by action as provided by later statute.

8. The two decisions which were cited to us by Mr. Sankara Ayyar in -- 'Croydon Corporation v. Croydon Rural Council', 1908-2-Ch 321 (C) and --'Webb v. Herne Bay Commissioners', (1870) 5 QB 642 (D), relate not to applications for the issue of the prerogative writ of mandamus but to actions for mandamus, corresponding to suits in this country. There is a vital difference between the prerogative writ of mandamus and an action of mandamus in England. An action of mandamus which was provided by statute there with provision for interlocutory mandamus corresponds to a suit claiming a mandatory injunction under our law. The logical conclusion from decisions like those cited by Mr. Sankara Aiyar is that in the present cases a suit for injunction is the appropriate remedy. We are clearly of opinion that the appellants are not entitled to a writ of mandamus to enforce their contractual rights.

9. It was next contended by Mr. Sankara Aiyar that the language of Article 226 of the Constitution was wide enough to apply to cases which would not fall within the scope of a prerogative right of mandamus as understood in England. He even went to the length of saying that Article 226 would apply to disputes between private persons. Stress was laid on the words "any person" and "for any other purpose". We do not agree, it is undoubtedly true that the extent of the power conferred on the High courts under Article 226 is much larger than they ever possessed before. But we have no hesitation in holding that it is not an unlimited power. In our opinion the words "to any person" means "to any person to whom according to well-established principles writs like those mentioned in the article would lie"; and the words " any other purpose" must be -read in the context in antithesis to the words "for the enforcement of any of the rights conferred by Part III". Obviously, writs like 'Habeas Corpus', Mandamus and 'certiorari' could be issued not only for the enforcement of any of the fundamental rights, but also for the enforcement of other legal rights, subject however to conditions well established. To give an instance, the writ of prohibition has always been understood as a writ which could issue only to a judicial or quasi-judicial tribunal or an inferior court. Surely, it cannot be said that now under Article 226 a writ in the nature of prohibition could issue even to a private person prohibiting him from doing some act which is likely to injure an applicant. Mitter J. expressed the same view in -- 'Carlsbad Mineral Water Manufacturing Co., Ltd. v. H. M. Jagtiani', (E). At page 318 he

said :

"At first sight it would appear that the language used in Article 226 imposes no limits whatsoever as to the category of persons to whom, and the purpose for which, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them may be issued by the High Court. But once the origin and history of the High Prerogative writs are remembered, it is clear that the powers given to a High court under Article 223 are to be exercised in accordance with the principles which governed the said writs. The power of the High Court to issue such a writ 'to any person' can only mean the power to issue such a writ to any person to whom, according to well established principles, a writ lay. That a writ may issue to an appropriate person for the enforcement of any of the rights conferred by Part III is clear enough from the language used. But the words 'and for any other purpose' must mean 'for any other purpose for which any of the writs mentioned would, according to well established principles issue'." (Vide also -- 'Emperor v. Jeshingbai', (PB) (F).

10. We are also of opinion that an application under Article 226 of the Constitution is not an alternative remedy to the usual remedy by way of suit. We are in entire agreement with great respect with the following observations which occur in a recent Pull Bench decision in Allahabad in --'India Sugar Mills Association v. Secretary to Government, Uttar Pradesh Labour Department', (PB) at page 3 (G) :

"We feel that the time has come when we may point out that Article 226 of the Constitution was not intended to provide an alternative method 61 redress to the normal process of a decision in an action brought in the usual courts established by law."

11. This court has rejected a contention similar to that put forward by Mr. Sankara Aiyar in several cases of which reference may be made to two, which are reported. In -- 'In re Naga-bhushana Reddi', (H), one of us said :

"But the learned counsel argued that Article 226 is not confined to the issue of recognised writs like mandamus, prohibition, or certiorari. It includes other write and orders and directions without any restriction whatsoever as to their scope. In answer to a question from us he was compelled to confess that the logical result of the construction sought to be placed by him on the language of the Article would be to enable any person aggrieved to obtain any relief by an application under this Article. Take for instance the case of money due under a promissory note to the payee of the note. Ordinarily, the only remedy available for the creditor to recover the money due to him is by way of a suit in the appropriate court. But, as the language of Article 226(1) is very wide and refers to the issue of directions to any person for any purpose, logically, the creditor instead of filing a suit can straightaway approach this court for a direction to the debtor to pay him the money. As the only limitation - contained in Article 226 is that the power is confined to the territories in relation to which this court exercises jurisdiction, presumably any person in the State of Madras can approach this court under Article 226 for a direction against any other person in this State for any purpose. The construction of Article 226 would practically abrogate the entire judicial system and the machinery set up for the administration of justice in the State, we do not think that Article 226 should be construed in this manner in spite of the wide language on which the counsel relied."

In -- 'Thippaswami, In re', (I), the petitioner

prayed for the issue of directions directing the respondent to forbear from cutting trees standing in particular survey numbers in a village in Anantapur district and from removing the timber from the said lands. A Division Bench to which one of us was a party dismissed the application with the following remarks :

"In our opinion, Article 226 of the Constitution should not be construed so as to replace the ordinary remedies by way of suit and application available to the litigant under the general law of the land. Directions in the nature of a writ of mandamus should not, in our opinion, issue under this article except to a public, or quasi-public body or officer under an obligation, statutory or otherwise, to do or refrain from doing anything which is likely to interfere with the rights of persons. In this case, it is admitted that ordinarily the remedy of the petitioner would be by way of a suit and an application for injunction in the suit. The fact that the District Court of Anantapur in which the suit should have been filed is closed for the summer recess would not render Article 226 applicable. It was admitted by learned counsel for the petitioner that before the Constitution, the petitioner would have had no remedy. We are clearly of the view that Article 226 does not confer a new remedy in cases like this where there was no remedy before the Constitution. If the petitioner is aggrieved by the action of the respondents, he may have now no remedy by way of injunction but he will certainly have his remedy by way of damages for any unlawful action that may be done by the respondents. We think that the application is not maintainable under Article 226."

These remarks are very much in point now because the only apparent reason why the appellants have not pursued the ordinary remedy is that they would have to wait for two months after issue of a notice under Section 80 of the Civil Procedure Code to obtain interim relief by way o injunction.

12. In -- 'State of Orissa v. Madangopal', (J), it was pointed out that for the purpose of facilitating the institution of a suit directions in the nature of temporary injunction to circumvent the provisions of Section 80 of the Civil Procedure Code cannot be issued under Article 226 of the Constitution. Their Lordships expressly held that Article 226 cannot be used for the purpose of giving interim relief as the only and final relief on an application under that article, though the article itself does not say so. Indeed, if Mr. Sankara Aiyar's contention is to be accepted logically Article 226 should also enable the court to grant interim relief. That would also be a purpose which would literally fall within the clause "for any other purpose". But the Supreme Court negatived such a construction of the article.

13. In these appeals the appellants have their remedy by way of suits in which they can obtain every relief to which they are entitled including the interim relief of injunction restraining the Government from giving effect to their acceptance of any new tenders in derogation of the rights of the appellants.

14. We are therefore of opinion that the applications under Article 226 of the Constitution in these cases were misconceived and were rightly dismissed by Subba Rao J. The appeals are dismissed.

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