# Anr v. Kurien E. Kalathil & Ors

- **Citation:** (2006) 2 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-03-29
- **Case number:** Civil Misc. Writ Petition No. 17190 of 2006
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anr-v-kurien-e-kalathil-ors-40622
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Practice
and
Procedure-direction
to
decide
representation-without considering the
merit of case-High Court should not
issue such direction-otherwise a time
barred claim may be decided-without
provision of review.

Held: Para 7

A Division Bench of this Court to which
one of us (Hon. Dr. B.S. Chauhan, J. was
a party) in Writ Petition No. 8642 of
2003 (Rajendra Singh Vs. State of U.P. &
Ors.) decided on 30.7.2003 has also held
that without considering the merit of the
case, the Court should not issue a
direction to decide representation to any
of the authorities for the reason that
under
the
garb
of
getting
the
representation decided, the party may
succeed in getting adjudicated a time
barred claim, may be by an authority
having no competence or by deciding the
representation
an
order
may
be
reviewed though remedy of review is not
provided under the Statute. In the said
case, under the garb of getting the
representation
decided,
the
party
wanted the authority under the U.P.
Motor Vehicles Taxation Act, 1997 to
review its assessment.
Case law discussed:
2000 (6) SCC-293
AIR 2004 SC-510
J.T. 2006 (3) SC-189

## Text

618 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2006

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 17190 of 2006

Sant Gadge Seva Niketan, U.P. and
another

 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Rakesh Kumar Shukla

Counsel for the Respondents:
S.C.

Constitution of India, Art. 226-Practice
and
Procedure-direction
to
decide
representation-without considering the
merit of case-High Court should not
issue such direction-otherwise a time
barred claim may be decided-without
provision of review.

Held: Para 7

A Division Bench of this Court to which
one of us (Hon. Dr. B.S. Chauhan, J. was
a party) in Writ Petition No. 8642 of
2003 (Rajendra Singh Vs. State of U.P. &
Ors.) decided on 30.7.2003 has also held
that without considering the merit of the
case, the Court should not issue a
direction to decide representation to any
of the authorities for the reason that
under
the
garb
of
getting
the
representation decided, the party may
succeed in getting adjudicated a time
barred claim, may be by an authority
having no competence or by deciding the
representation
an
order
may
be
reviewed though remedy of review is not
provided under the Statute. In the said
case, under the garb of getting the
representation
decided,
the
party
wanted the authority under the U.P.
Motor Vehicles Taxation Act, 1997 to
review its assessment.
Case law discussed:
2000 (6) SCC-293
AIR 2004 SC-510
J.T. 2006 (3) SC-189

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
for disbursing the amount under a nonstatutory contract. The Supreme Court has
time and again examined this issue and
observed that a writ petition does not lie
for recovery of an amount under a
contract and even though a Statute may
expressly or impliedly confer power on a
statutory body to enter into contracts in
order to enable it to discharge its
functions but disputes arising out of the
terms of such contracts have to be settled
by the ordinary principles of law of
contract and the fact that one of the
parties to the agreement is a statutory or
public body does not affect the principles
to be applied. It has also been emphasised
that such a contract is not a statutory
contract and the disputes relating to
interpretation of the terms and conditions
of such a contract cannot be agitated in a
writ petition under Article 226 of the
Constitution. Thus, whether any amount
is due or not and refusal to pay it is
justified or not are not matters which can
be agitated and decided in a writ petition.

2. In this connection reference may
be made to the decision of the Supreme
Court in Kerala State Electricity Board &
Anr. Vs. Kurien E. Kalathil & Ors.,
(2000) 6 SCC 293, wherein it was
observed :-

"We find that there is a merit in the
first contention of Mr. Raval. Learned
counsel
has
rightly
questioned
the
2 All] Sant Gadge Seva Niketan and another V. State of U.P. and others
619
maintainability of the writ petition. The
interpretation and implementation of a
clause in a contract cannot be the subjectmatter of a writ petition. Whether the
contract envisages actual payment or not
is a question of construction of contract.
If a term of contract is violated, ordinarily
the remedy is not the writ petition under
Article 226. We are also unable to agree
with the observations of the High Court
that
the
contractor
was
seeking
enforcement of a statutory contract. A
contract would not become statutory
simply because it is for construction of a
public utility and it has been awarded by
a statutory body. We are also unable to
agree with the observation of the High
Court that since the obligations imposed
by the contract on the contracting parties
come within the purview of the Contract
Act, that would not make the contract
statutory. Clearly, the High Court fell into
an error in coming to the conclusion that
the contract in question was statutory in
nature.
A statute may expressly or impliedly
confer power on a statutory body to enter
into contracts in order to enable it to
discharge its functions. Dispute arising
out of the terms of such contracts or
alleged breaches have to be settled by the
ordinary principles of law of contract.
The fact that one of the parties to the
agreement is a statutory or public body
will not by itself affect the principles to
be applied. The disputes about the
meaning of a covenant in a contract or its
enforceability have to be determined
according to the usual principles of the
Contract Act. Every act of a statutory
body need not necessarily involve an
exercise of statutory power. Statutory
bodies, like private parties, have power to
contract or deal with property. Such
activities may not raise any issue of
public law. In the present case, it has not
been shown how the contract is statutory.
The contract between the parties is in the
realm of private law. It is not a statutory
contract.
The
disputes
relating
to
interpretation
of
the
terms
and
conditions of such a contract could not
have been agitated in a petition under
Article 226 of the Constitution of India.
That is a matter for adjudication by a civil
court or in arbitration if provided for in
the contract. Whether any amount is due
and if so, how much and refusal of the
appellant to pay it is justified or not, are
not the matters which could have been
agitated and decided in a writ petition."
(emphasis supplied)

3. In State of Jammu & Kashmir
Vs. Ghulam Mohd. Dar & Anr., AIR
2004 SC 510, the Supreme Court
observed:-

"Furthermore, the respondent herein
filed the aforementioned writ petition for
enforcing
a
contract
qua
contract.
Although an objection has been taken as
regards the maintainability of the writ
petition by the appellant herein, the same
unfortunately has not been considered by
the High Court. It is well settled that writ
of or in the nature of mandamus would
not ordinarily issue for enforcing the
terms and conditions of a contract qua
contract. A writ of mandamus would issue
when a question involving public law
character arises for consideration."

4. In view of the aforesaid decisions,
it is not possible for us to issue the
directions as prayed for while exercising
powers
under
Article
226
of
the
Constitution.
620 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
5.

Learned
counsel
for
the
petitioners then submitted that this Court
may pass an order for deciding the
pending representation. It is a settled legal
proposition that what cannot be done
directly cannot be permitted to be done
indirectly. The money in respect of a nonstatutory contract cannot be recovered in a
writ jurisdiction. It cannot, therefore, be
recovered by issuing any direction to the
respondents to decide the representation.

6. In this connection reference may
also be made to the decision of the
Supreme Court in A.P.S.R.T.C. & Ors.
Vs. G. Srinivas Reddy & Ors,. JT 2006
(3) SC 189 in which strong comments
were made against issuance of direction to
the
authorities
to
decide
the
representations as under the garb of
deciding the representations, time barred
claims were entertained by the authorities.
The relevant portion of the judgment is as
under:-

"We may also note that sometimes
the High Courts dispose of matter merely
with a direction to the authority to
''consider' the matter without examining
the issue raised even though the facts
necessary to decide the correctness of the
order are available. Neither pressure of
work nor the complexity of the issue can
be a reason for the court, to avoid
deciding the issue which requires to be
decided, and disposing of the matter with
a direction to ''consider' the matter
afresh. Be that as it may.
There are also several instances
where unscrupulous petitioners with the
connivance of ''pliable' authorities have
misused the direction ''to consider' issued
by court. We may illustrate by an
example. A claim, which is stale, timebarred or untenable, is put forth in the
form of a representation. On the ground
that the authority has not disposed of the
representation within a reasonable time,
the person making the representation
approaches the High Court with an
innocuous prayer to direct the authority
to
''consider'
and
dispose
of
the
representation. When the court disposes
of the petition with a direction to
''consider' the authority grants the relief,
taking shelter under the order of the court
directing him to ''consider' the grant of
relief. Instances are also not wanting
where authorities, unfamiliar with the
process and practice relating to writ
proceedings and the nuances of judicial
review, have interpreted or understood
the order ''to consider' as directing grant
of relief sought in the representation and
consequently
granting
reliefs
which
otherwise could not have been granted.
Thus, action of the authorities granting
undeserving relief, in pursuance of orders
to ''consider', may be on account of
ignorance, or on account of bona fide
belief that they should grant relief in view
of court's direction to ''consider' the
claim,
or
on
account
of
collusion/connivance between the person
making
the
representation
and
the
authority deciding it. Representations of
daily
wagers
seeking
regularization/absorption
into
regular
service is a species of cases, where there
has been a large scale misuse of the
orders ''to consider'."

7. A Division Bench of this Court to
which one of us (Hon. Dr. B.S. Chauhan,
J. was a party) in Writ Petition No. 8642
of 2003 (Rajendra Singh Vs. State of U.P.
& Ors.) decided on 30.7.2003 has also
held that without considering the merit of
the case, the Court should not issue a
direction to decide representation to any
2 All] Smt. Samapika Chaterjee V. State of U.P. and another
621
of the authorities for the reason that under
the garb of getting the representation
decided, the party may succeed in getting
adjudicated a time barred claim, may be
by an authority having no competence or
by deciding the representation an order
may be reviewed though remedy of
review is not provided under the Statute.
In the said case, under the garb of getting
the representation decided, the party
wanted the authority under the U.P. Motor
Vehicles Taxation Act, 1997 to review its
assessment. This Court while rejecting the
writ petition, held as under:-
"The review application is not
maintainable
against
the
assessment
order nor any order of rectification is
permissible asking the said authority to
decide representation would amount to
directing him to review the said order
which is not permissible in law. Creation
of a jurisdiction in a Court is a
Legislative function and it cannot be
conferred by any means by the Court.
Reviews/Appeal is a creation of Statute
and it cannot be created by acquiescence
of a party or by the order of the Court
vide United Commercial Bank Ltd. Vs.
Their Workmen, AIR 1951 SC 230 and
Kesar Singh & Ors. Vs. Sadhu, (1996) 7
SCC 711."

8. In view of the above, we are
afraid, no direction can be issued to the
respondents to decide the representation
filed by the petitioners.

9. Thus in view of the above, the
writ petition is dismissed. It is made clear
that we have not examined the merits of
the case. However, if the petitioners are
so advised, they may approach the
appropriate Forum for the relief claimed
in this petition.
 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.02.2006

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No.39737 of 1999

Smt.Samapika Chatterjee
...Petitioner
Versus
State of U.P and another ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh

Counsel for the Respondents:
Sri N.P. Pandey
Sri Shiv Abhinav Upadhya
S.C.

Constitution of India-Art.-226-Grant of
L.T. Grade Salary- G.O. 19.10.89 provides
grant of L.T. Grade-after completing 10
years services in C.T. Grade on 1.1.86Services of petitioner found satisfactoryheld-entitled for L.T. grade salary from
the date of completion of 10 years
successful
service
as
L.T.
gradePetitioner allowed with all consequential
benefits.

Held: Para 11

It is relevant to note that in the order
passed by Regional Inspectress of Girls
School, it has not been stated that
services
of
the
petitioner
are
not
satisfactory. The entitlement under the
Government Order to get salary is based
on satisfactory completion of 10 years of
service. The petitioner having admittedly
completed 10 years service on 1.1.1986,
she is clearly entitled for fixation of
salary in L.T grade from 1.1.1986.
Consequently
the
writ
petition
is
allowed. The order dated 26.8.1999
annexure-9
to
the
writ
petition
is
quashed. A writ of mandamus is issued
to the respondent to treat the petitioner
in L.T grade with effect from 1.1.1986