One Cannot Bypass Established Civil Adjudicatory Process Merely Because Claim Is Against Entity Amenable To Writ Jurisdiction: Calcutta HC
The Calcutta High Court held that one cannot bypass the established civil adjudicatory process merely because the claim is against an entity amenable to the writ jurisdiction.
The Court held thus in a batch of appeals preferred by Ghani Khan Choudhury Institute of Engineering and Technology and others against a common judgment of the Single Judge in a batch of writ petitions.
A Division Bench of Chief Justice T.S. Sivagnanam and Justice Hiranmay Bhattacharyya observed, “To the mind of this Court, the writ petitioners have miserably failed to bring their case within the exceptional circumstances for the Writ Court to entertain a money claim for alleged violation of a contractual right by an entity amenable to the jurisdiction under Article 226 of the Constitution of India. … this Court is of the considered view that the writ petitioners could not have been allowed to bypass the established civil adjudicatory process merely because the claim is against an entity amenable to writ jurisdiction. This Court, therefore, holds that the writ petitions were not maintainable.”
The Bench said that in case of alleged violation of a contractual right or duty by the State or its instrumentalities or entities amenable to jurisdiction under Article 226 of the Constitution, normally the aggrieved person has to avail the established civil adjudicatory process and only in exceptional circumstances in contractual matters or even when money claim is raised, the writ court may in exercise of its discretion entertain the writ petition.
Advocate Sarwar Jahan appeared for the appellants while Senior Advocate Abhratosh Majumder and Advocate Kumar Jyoti Tiwari appeared for the respondents.
Brief Facts -
M/s. Malda Construction Company filed two writ petitions being WPA 27966 of 2022 and WPA 28412 of 2022. WPA 28415 of 2022 was at the instance of Subham Enterprise. Gouri Construction filed two writ petitions being WPA 28417 of 2022 and WPA 28419 of 2022. The said writ petitions were heard analogously by the Single Judge and were disposed of by a common judgment and order. The said appeals arose out of a common judgment and order and common questions of law and fact were involved, for which the said appeals were heard analogously and were decided by this common judgment and order. The writ petitions involved similar facts and there were minor factual differences including the dates of the correspondences exchanged between the parties. The Superintending Engineer of Ghani Khan Choudhury Institute of Engineering and Technology, Malda issued a notice inviting tender and inviting enlisted bona fide contractors to participate in the tender in respect of six items of work relating to the Land Development by Earth filling on low land ditches.
Considering the rate quoted by the writ petitioner, the proposal of the writ petitioner was accepted and a work order was issued in favour of the writ petitioner. The Superintending Engineer handed over the site and the running bills raised by the petitioner were honoured. Completion certificate was issued on and the writ petitioner requested the Superintending Engineer to release the payment against the 3rd Running Account cum Final Bill. The petitioner claimed to have submitted several representations and the last of such representation was addressed to the Assistant Registrar (Finance) of the Institute bearing. Being aggrieved by the withholding of the final payment against the work order issued in favour of the writ petitioner, the said writ petition was filed. The Single Judge observed that the petitioners’ completing the work to the satisfaction of the Institute amounts to arbitrary and unreasonable conduct on the part of an entity amenable to Article 226 of the Constitution. Being aggrieved by such judgment, the Institute approached the Division Bench.
The High Court in view of the facts and circumstances of the case noted, “… this Court is of the considered view that in case of alleged violation of a contractual right or duty by the State or its instrumentalities or entities amenable to jurisdiction under Article 226, normally the aggrieved person has to avail the established civil adjudicatory process and only in exceptional circumstances in contractual matters or even when money claim is raised, the writ court may in exercise of its discretion entertain the writ petition.”
The Court added that on order to maintain a writ petition involving such a dispute, the writ petitioners have to satisfy the Court that the case falls within the exceptional circumstances and the conduct of the writ petitioners may be of some relevance for deciding whether the case of the writ petitioners fall within the exceptional circumstances.
“This Court, therefore, holds that the period prescribed under the Limitation Act for filing a suit shall be considered to be the reasonable time period for filing a writ petition involving money claim. Any contrary interpretation would encourage an aggrieved person, not vigilant of his rights, to get a claim arising out of contractual matters adjudicated through judicial process which has already become time barred”, it further held.
Accordingly, the High Court allowed the appeals and set aside the impugned judgment.
Cause Title- The Ghani Khan Choudhury Institute of Engineering and Technology & Ors. v. M/s. Malda Construction Company & Ors.
Appearance:
Appellants: Advocates Sarwar Jahan, Maidul Islam Kayal, Sayantan Hazra, and Tapati Sarkar.
Respondents: Senior Advocate Abhratosh Majumder, Advocates Subhabrata Datta, Debasish Sarkar, Kumar Jyoti Tewari, Ashima Roy Chowdhury, and Tirthapati Acharyya.
