# M/s Veekay General Industries v. Union of India & Ors

- **Citation:** (2020) 1 ILRA 1248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-04-12
- **Case number:** Writ C No. 43455 of 2018
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-veekay-general-industries-v-union-of-india-ors-45153
- **Pages:** 9

## Headnote

Contract law- Contract between the
Petitioner and North Central RailwayArbitration clause- Principles of Natural
justice -not applicable in contract in
private law-Writ Jurisdiction cannot be
exercised -for enforcement of pure and
simple commercial contract.

Held, that in the matter of pure and simple
commercial
contract,
extraordinary
constitutional remedy under Article 226 is not a
substitute for getting the contract executed or
for allowing damages to a party for alleged
breach of contract since remedy lies in
common law by filing suit for enforcement of
contract wherever it is permissible or for
damages/ compensation for alleged wrongful
breach of contract. Reason being that such
matters involves recording of evidence, oral
and documentary, and remedy under Article
226 of the Constitution cannot be made a
substitute of common law civil proceedings and
parties must avail such remedy. (Para 16)

Writ Petition dismissed. (E-9)

List of cases cited: -

## Text

1 All. M/s Trident Engineers Vs. Dakshinanchal Vidyut Vitran Nigam Ltd. & Anr.
1249
petition). In view of the settled proposition
of law by the Apex Court in catena of
decisions some of which as has been
referred above, it is absolutely clear that
before blacklisting or putting a person on a
holiday list a person has to be given full
opportunity of hearing as the order of
blacklisting or keeping on holiday list has
an adverse civil consequences and is a
harshest possible action. Thus we are of
the considered opinion that there has been
a complete violation of the principles of
natural justice in the instant case. The
impugned order is not sustainable in the
eyes of law and deserves to be set aside.

10. Hence, a writ in the nature of certiorari
is issued quashing the impugned order dated
12.09.2019 passed by the respondent No. 2 vide
letter No. 1037 /बव0का0/म/आ/0 (Annexure 10
to the writ petition).

11. It is hereby further provided that
the petitioner shall submit fresh reply to
the notice dated 03.09.2019 to the
respondent No. 2 within a period of three
weeks from today along with a certified
copy of this order and the respondent No.
2 is further directed to decide the same
afresh within a further period of three
weeks from the date of receipt of the said
reply with a reasoned and speaking order
in accordance with law.

12. The writ petition thus succeeds
and is allowed.

13. No order as to cost.
----------
(2020)1ILR 1248

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ C No. 43455 of 2018

M/s Veekay General Industries ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhijeet Mukherji, Sri Sudeepta Kumar
Pal

Counsel for the Respondents:
Sri Ranjan Kumar Rai, Sri Vivek Kumar Rai

Contract law- Contract between the
Petitioner and North Central RailwayArbitration clause- Principles of Natural
justice -not applicable in contract in
private law-Writ Jurisdiction cannot be
exercised -for enforcement of pure and
simple commercial contract.

Held, that in the matter of pure and simple
commercial
contract,
extraordinary
constitutional remedy under Article 226 is not a
substitute for getting the contract executed or
for allowing damages to a party for alleged
breach of contract since remedy lies in
common law by filing suit for enforcement of
contract wherever it is permissible or for
damages/ compensation for alleged wrongful
breach of contract. Reason being that such
matters involves recording of evidence, oral
and documentary, and remedy under Article
226 of the Constitution cannot be made a
substitute of common law civil proceedings and
parties must avail such remedy. (Para 16)

Writ Petition dismissed. (E-9)

List of cases cited: -

1. Bareilly Development Authority vs. Ajai Pal
Singh, AIR 1989 SC 1076

2.Kerala State Electricity Board and another Vs.
Kurian E. Kalathil and others, 2000(6) SCC 293 C

3.The Rajasthan State Industrial Development
and Investment Corporation and Anr. vs.
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
Diamond and Gem Development Corporation
Ltd. and Anr., 2013(5) SCC 470

4.State of U.P. and others vs. Bridge & Roof
Co. (India) Ltd., AIR 1996 SC 3515

5.Zonal Manager, Central Bank of India vs.
Devi Ispat Ltd. and Ors., 2010(11) SCC 186

6.Union of India and others vs. Tantia
Construction Pvt. Ltd., 2011(5) SCC 697

7.State of Gujarat and Ors. vs. Meghji Pethraj
Shah 11 Charitable Trust and Ors., 1994(3)
SCC 552

8.Pimpri Chinchwad Municipal Corporation and
Ors. vs. Gayatri Construction Company and
Anr., 2008(8) SCC 172

(Delivered by Hon'ble Sudhir Agarwal, J.
Hon'ble Rajendra Kumar-IV, J.)

1. Heard Sri Abhijit Mukherji,
learned counsel for petitioner and Sri
Vivek
Kumar
Rai,
Advocate
for
respondents.

2. This writ petition under Article
226 of the Constitution of India has been
filed by sole petitioner-M/s Veekay
General Industries, praying for issue of a
writ of certiorari quashing modification
advice/
notice
dated
26.06.2018
(Annexure-17 to writ petition) amending
date of delivery to 26.12.2018. Petitioner
has also prayed for issue of a writ of
mandamus commanding Respondents-2 to
4 to issue a fresh and reasonable last date
of delivery to petitioner firm and also
directing Respondent-2 to cancel Purchase
Order No. 60155048178096 since drawing
approval and site was not made ready in
time before consuming four months time
out of six months of delivery time.

3. By way amendment petitioner has
also prayed for issue of a writ of certiorari
quashing
cancellation
advise
dated
05.02.2019,
communication
dated
06.02.2019 calling for penalty of forfeiture
of security and consequential letter for
encashment of bank guarantee.

4. Facts, in brief, giving rise to
present writ petition are that petitioner is a
partnership firm engaged in the business of
making Escalators. North Central Railway,
i.e., Respondents-2 and 3 floated a tender
notice for installation of two Escalators,
one at Aligarh Railway Station and
another
at
Tundla
Railway
Station.
Petitioner submitted bid dated 24.07.2017
(Annexure-1 to writ petition) stating in
para 8 thereof that delivery period is
within six months from the date of
LOA/Purchase Order, prototype approval,
GAD/manufacturing
clearance
by
Railways
/
Consignee/
Authorized
Representative
and
subject
to
Site
Readiness/ Timely Clearances at Railway/
Consignee End for execution of work,
whichever is later. Tender was opened on
25.07.2017. Vide letter dated 31.07.2017,
Deputy Chief Material Manager (C),
Allahabad (hereinafter referred to as
"DCMM (C)") informed petitioner that he
has not accepted delivery schedule as per
tender. It advised petitioner to accept
delivery schedule as per tender, i.e., within
six months from the date of Purchase
Order (PO). Petitioner was required to
give reply within three days. Petitioner
submitted
reply
vide
letter
dated
02.08.2017 and therein, besides other, with
respect to delivery schedule it said, as
under:

"It is our endeavor to execute
your work at the earliest and even before
the
delivery
schedule.
However,
in
practice we have found that there are
several factors/agencies that are beyond
1 All. M/s Veekey General Industries Vs. Union of India & Ors.
1251
our scope of work and/or control which
pose challenges in timely completion of
work, thereby resulting in requirement of
extensions. Thus we only sought to bring
to your kind notice that there are possible
reasons
for
the
same.
We
remain
committed on our endeavor to execute
your work at the earliest and within your
stipulated tender schedule of within 06
months.

You may notice that earlier the
Purchase Orders used to be in two parts
i.e. one for supply portion and one for
installation portion. After the introduction
of GST the entire tender is now being
evaluated as a single works contract. In
your tender your have also specified that
no price variation will be given on the
installation portion, thus in order to
ensure transparency we submitted this
clause that our original purchase invoice
be used to determine the final amount that
becomes payable. We have also done back
to back tie up with our principle
manufacturer/ supplier with the same
price variation formula that you are
offering us i.e. our purchase rates are
fixed for escalators at 6m+/-0.6% change
in price on every variation of 0.15m. If you
have a more suitable option for working
out the final rate for supply of escalator
please suggest/ assist us on the same for
incorporation in awaited Purchase Order
to avoid any confusions later."

5. On 28.09.2017 North Central
Railway from the Office of Principal Chief
Materials Manager, Allahabad (hereinafter
referred to as "PCMM") issued a letter of
acceptance.
The
delivery
schedule
mentioned
therein
was
six
months.
Petitioner submitted drawings for two
Escalators at Aligarh and Tundla vide
letter dated 31.10.2017. Railway vide
letter dated 07.11.2017 required petitioner
to submit documents till 23.10.2017 as per
Research,
Design
and
Standard
Organization,
Lucknow
(hereinafter
referred to as "RDSO") specifications
mentioned in Clause 2.16.2, Annexure-3
of letter of acceptance. Petitioner also
submitted bank guarantee. Railway issued
Purchase Order No. 60155048178096 on
behalf of President of India through
PCMM on 09.11.2017. RDSO sent letter
dated 10.11.2017 to PCMM stating that
Purchase
Order
was
released
on
28.09.2017 but copy was not marked to
RDSO as such it became aware of
Purchase Order only on 24.10.2017 after
receiving email from the Firm and hence
one and half months has lost. It also stated
that Firm still has not submitted necessary
documents as per list of submittals
mentioned in RDSO specification. It
should be advised to submit those
documents by 23.11.2017 so that scrutiny
of documents can be done for preparation
of Work Test Certificate (hereinafter
referred to as "WTC").

6. Thereafter a joint inspection at
Tundla Railway Station was carried on
21.10.2017. Petitioner submitted drawing
to Senior Divisional Electrical Engineer of
two Escalators at Aligarh and one at
Tundla
alongwith
detailed
Railway's
Scope Work for Escalator Installation. On
28.11.2017 petitioner also sent drawings to
Executive Director, RDSO. Pursuant to
RDSO's
letter
dated
10/14.11.2017,
PCMM vide letter dated 01.12.2017
requiring petitioner to submit all necessary
documents to RDSO. Petitioner replied
vide letter dated 13.12.2017 that it has
submitted necessary Preliminary Design
Documents vide letter dated 28.11.2017
and further said that petitioner is working
on the balance required documents and/ or
calculations highlighted by RDSO and will
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
submit shortly for approval. Vide letter
dated 20.12.2017 petitioner stated that due
to pendency of approval from Railways it
is not in a position to start manufacturing
of Escalators, therefore, delivery of six
months period be refixed from the date of
WTC/ Manufacturing Clearance. Vide
letter dated 29.12.2017 Senior Material
Manager sent intimation for approval of
drawings. On 12.01.2018 Railway wrote
petitioner
to
confirm
address
of
communication in order to ascertain delay.

7. Finally on 15.01.2018 approved
GADs were received by petitioner. Vide
letter
dated
02.02.2018,
petitioner
informed Senior Divisional Electrical
Engineer
that
RDSO
has
informed
petitioner to relocate Escalator Control
Panel Location outside the truss. Petitioner
submitted revised GAD (Rev. 2) in line
with RDSO's requirement vide letter dated
02.02.2018. Vide letter dated 05.02.2018
petitioner sent progress report and stated
that since it was not in a position to start
manufacturing of Escalators due to non
availability of Work Test Certificate,
therefore, considering delay in approval by
Railway, delivery period of six months be
refixed so as to commence from the date
of Work Test Certificate/ Manufacturing
Clearance by Railway.

8. Again vide letter dated 07.03.2018
petitioner
informed
Deputy
Chief
Electrical Engineer, Allahabad that GAD
submitted vide letter dated 02.02.2018 is
pending for approval at Railway /
Consignee; all technical parameters have
been
freezed
by
RDSO
to
start
manufacturing, therefore, Railway should
refix delivery period of six months from
the date of pending GAD approvals which
is
necessary
for
manufacturing
of
Escalators. It was also pointed out that top
notches of both locations at Aligarh and
Tundla were incomplete and that requires
to be completed before the work of
Escalators start.

9. On 12.03.2018 petitioner received
amended
drawings
approved
by
Competent
Authority.
A
copy
of
acknowledgment receipt and letter dated
12.03.2018
sent
by
petitioner
acknowledging receipt of approved GADs
is
Annexure-16
to
writ
petition.
Respondent-2,
however,
issued
Modification Advice / Notice dated
26.06.2018 impugned in the present writ
petition amending Purchase Order dated
09.11.2017 and delivery period from
existing was amended as 26.12.2018.
However, conditions No. 1 to 4 in the
aforesaid letter read as under:

"1. Please note that the above
extension in delivery date is subject to
recovery of an amount equal to full
liquidated Damages for delay in supply of
stores after the expiry of the Contract
Delivery period notwithstanding the grant
of the extension. You may now tender the
stores (Balance of stores) for Inspection in
terms of this letter and any stores already
tendered by you for inspection but not
inspected
will
be
now
inspected
accordingly.

2. The above extension will also
be subject to the following conditions:

a. That no increase in price on
account of any statutory increase in or
fresh imposition in Customs Duty/ Sales
Tax/ Freight or on account of any other
Tax or Duty leviable in respect of the
stores specified in the said Acceptance of
tender which take place after ..... shall be
admissible on such of the stores as are
delivered after the said date, and
1 All. M/s Veekey General Industries Vs. Union of India & Ors.
1253

b. That notwithstanding any
stipulation in the contract for increase in
price on any other ground, no such
increase which takes place after the said
date shall be admissible on such of the
stores as are delivered after ....

c. But nevertheless the purchaser
shall be entitled to benefit of any decease
in price on account of reduction on or
remission of customs duty, Excise Duty,
Sales Tax or on account of any other Tax
or Duty or on other ground as stipulated
in the price Variation Clause which takes
place after expiry of the above mentioned
date viz, .....

3. Please intimate immediately
your acceptance of this extension on the
above condition. Please note that in the
event of declining to accept the extension
on the said conditions, the contract shall
be cancelled and the outstanding quantity
of stores shall be purchased at your risk
and cost under the terms of the contract.

4. Please notice that no further
extension would be granted. This is to be
treated as final Notice and action for risk
purchase will be arranged in the event of
default without any further reference to
you."
(Emphasis added)

10. Petitioner vide letter dated
30.06.2018 informed that site is not ready
as top notches and other proposed
requirements are not complete so as to
start civil work by petitioner. It, therefore,
requested Senior Divisional Electrical
Engineer to direct concerned authorities to
complete work to be performed by
Railway at the site so that petitioner may
start its work. Further, vide letter dated
29.06.2018, petitioner requested PCMM to
refix delivery period without LD/DC. On
behalf of PCMM Deputy Chief Material
Manager issued letter dated 03.08.2018
stating that DP extension with LD and DC
up to 26.12.2018 was issued and petitioner
was advised to supply material within
extended delivery period, failing which
action will be taken as per condition of
contract.

11. Petitioner made a joint inspection
with Senior Engineer and found that
minimum civil work, i.e., top notches was
not complete. Railway officials, however,
informed that by the time Escalators
material reached the site, required civil
work would stand completed. Next joint
inspection was made on 28.08.2018 and on
14.09.2018 but top notches still was not
found complete. Ultimately top notches
were ready on 10.10.2018 but due to
barricading and collection of heavy debris
etc. suitable measurement could not be
made. Since Railway was not considering
extension of delivery time though fault lay
upon them, hence present writ petition has
been filed.

12. A counter affidavit has been filed
by respondents wherein issue of Purchase
Order
dated
09.11.2017
and
its
amendment with respect of date of
delivery vide letter dated 26.06.2018 is not
disputed. It is said that letter of acceptance
clearly stated delivery period as six
months. Firm accepted this condition and
on confirmation submitted security deposit
of Rs. 10 lacs in the form of bank
guarantee. Letter dated 31.07.2017 was
issued reminding the Firm that it must
accept delivery schedule as per tender
schedule, i.e., six months from the date of
Purchase Order. Further, with respect to
submission of documents to RDSO,
petitioner himself delayed the matter.
Petitioner having failed to comply with
terms of contract cannot wriggle out
thereof and in any case there is an
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
arbitration clause in agreement and writ
petition
under
Article
226
of
the
Constitution of India for modification of
terms of contract or for enforcement of
contract is not admissible.

13. Since during pendency of writ
petition, delivery time expired, hence
PCMM issued cancellation advise dated
05.02.2019, giving reason of failure to
supply. It also imposed penalty of
forfeiture of security deposit. By way of
amendment aforesaid cancellation and
forfeiture has also been challenged.

14. Facts stated above, ex facie,
show that here is a case of simple
enforcement of contract. Moreover, it is
not a mere enforcement of contract but
even terms of contract are sought to be
modified by intervention of Court by
invoking jurisdiction under Article 226 of
the Constitution. Under the contract,
earlier six months period of delivery was
extended upto 26.12.2018 but petitioner
wants it to be extended in his own terms.

15. Thus the question is, "whether
for enforcement of a pure and simple
commercial contract, jurisdiction under
Article 226 of the Constitution of India
should be exercised", and, secondly,
"whether the terms and conditions of
contract can be directed to be modified at
the instance of one party, by Court, in
exercise of jurisdiction under Article 226
of the Constitution"?

16. It is true that remedy under
Article 226 of the Constitution of India is
not absolutely barred but it has been held
repeatedly that in the matter of pure and
simple commercial contract, extraordinary
constitutional remedy under Article 226 is
not a substitute for getting the contract
executed or for allowing damages to a
party for alleged breach of contract since
remedy lies in common law by filing suit
for enforcement of contract wherever it is
permissible or for damages/ compensation
for alleged wrongful breach of contract.
Reason being that such matters involves
recording
of
evidence,
oral
and
documentary, and remedy under Article
226 of the Constitution cannot be made a
substitute
of
common
law
civil
proceedings and parties must avail such
remedy.

17. An exception has been carved out
however in cases where contract is
"statutory contract" but it has not been
disputed before us by counsel for parties
that agreement/ contract, in the case in
hand, is not a statutory contract.

18.

In
Bareilly
Development
Authority vs. Ajai Pal Singh, AIR 1989
SC 1076 Court held that if a person is
aggrieved in respect of non statutory and
purely contractual rights flowing from a
contract, remedy under Article 226 of the
Constitution is not available. Court said
that no writ or order can be issued under
Article 226 so as to compel the authorities
to remedy a breach of contract, pure and
simple.

19. In Kerala State Electricity
Board and another Vs. Kurian E.
Kalathil and others, 2000(6) SCC 293
Court said that if a term of contract is
violated, ordinarily remedy is not the writ
petition under Article 226. Disputes
arising out of terms of such contract or
alleged breaches have to be settled by
ordinary principles of law of contract.
Court said that such case is a matter for
adjudication by a Civil Court or in
arbitration if provided for in the contract.
1 All. M/s Veekey General Industries Vs. Union of India & Ors.
1255

20.

Referring
to
Bareilly
Development Authority vs. Ajai Pal
Singh (supra), and State of U.P. and
others vs. Bridge & Roof Co. (India)
Ltd., AIR 1996 SC 3515, Court in The
Rajasthan State Industrial Development
and Investment Corporation and Anr.
vs. Diamond and Gem Development
Corporation Ltd. and Anr., 2013(5)
SCC 470 observed as under:

"There can be no dispute to the
settled
legal
proposition
that
matters/disputes
relating
to
contract
cannot be agitated nor terms of the
contract can be enforced through writ
jurisdiction under Article 226 of the
Constitution. Thus, writ court cannot be a
forum to seek any relief based on terms
and
conditions
incorporated
in
the
agreement by the parties."

 (Emphasis added)

21. In Rajasthan State Industrial
Development
and
Investment
Corporation (supra), Court further said:

"It is evident from the above,
that generally the court should not
exercise its writ jurisdiction to enforce the
contractual
obligation.
The
primary
purpose of a writ of mandamus, is to
protect and establish rights and to impose
a corresponding imperative duty existing
in law. It is designed to promote justice (ex
debito justiceiae). The grant or refusal of
the writ is at the discretion of the court.
The writ cannot be granted unless it is
established that there is an existing legal
right of the applicant, or an existing duty
of the Respondent. Thus, the writ does
not lie to create or to establish a legal
right, but to enforce one that is already
established. While dealing with a writ
petition,
the
court
must
exercise
discretion, taking into consideration a
wide variety of circumstances, inter-alia,
the facts of the case, the exigency that
warrants such exercise of discretion, the
consequences of grant or refusal of the
writ, and the nature and extent of injury
that is likely to ensue by such grant or
refusal. "
(Emphasis added)

22. In State of U.P. and others vs.
Bridge & Roof Co. (supra) Court said:

"Firstly, the contract between
the parties is a contract in the realm of
private law. It is not a statutory contract.
It is governed by the provisions of the
Contract Act or, may be, also by certain
provisions of the Sale of Goods Act. Any
dispute relating to interpretation of the
terms and conditions of such a Contract
cannot be agitated, and could not have
been agitated, in a writ petition. That is a
matter either for arbitration as provided
by the contract or for Civil Court, as the
case may be." (Emphasis added)

23. In Zonal Manager, Central
Bank of India vs. Devi Ispat Ltd. and
Ors., 2010(11) SCC 186 Court said:

"It is settled law that the disputes
relating to interpretation of terms and
conditions of a contract could not be
examined/challenged or agitated in a
petition filed under Article 226 of the
Constitution.
It
is
a
matter
for
adjudication by a civil court or in
arbitration, if provided for in the contract
or
before
the
DRT or
under
the
Securitization Act. "

24. Reliance is sought to be placed
on behalf of petitioner on Supreme Court's
judgment in Union of India and others
vs. Tantia Construction Pvt. Ltd.,
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
2011(5) SCC 697 but we find that
aforesaid judgment lends no help to
petitioner in the case in hand. It was a case
decided on its own facts. There was an
agreement between Railway and Tantia
Construction
Pvt.
Ltd.
(hereinafter
referred to as the "Contractor"). Railway
insisted upon Contractor to execute certain
additional work worth Rs. 36.11 crores
under existing agreement for which
Contractor did not agree. Railway then
issued a notice requiring Contractor to
execute enlarged/ extended quantity of
work contract which was challenged in
writ petition stating that Contractor is
ready and abide to work contract already
executed and it cannot be forced to agree
for additional work in respect of extended
portion on same terms and conditions.
Contractor in writ petition did not
challenge terms and conditions of existing
agreement but was aggrieved by action of
railway
whereby
it
was
compelling
Contractor to execute extended quantify of
work contract/ additional work contract for
which Contractor was not ready. A Single
Judge of Calcutta High Court quashed
letter issued by railway for additional/
extended work contract and said judgment
was upheld by Division Bench as well as
Apex
Court.
Court
observed
that
Contractor expressed its unwillingness to
take extended work and agreed to
complete balance work of initial contract
and for extended work he cannot be
compelled. It is in these facts and
circumstances Court did find that writ
petition was maintainable.

24. Learned counsel for petitioner than
contended that entire fault lay with Railway
and without giving any opportunity of
hearing and notice it has cancelled contract,
therefore, here is a case of violation of
principle of natural justice also.

25. We find that the Railway issued
contract on certain conditions which
petitioner wanted to be modified to which
Railway did not agree. It has been held
time and again that principles of natural
justice are not applicable when a contract
in private law is terminated. Cancellation
of contract in private law is not a quasi
judicial act hence observance of principles
of natural justice are not required and
atleast cancellation of contract by either
party cannot be challenged on the ground
that it is in violation of principles of
natural justice.

26. In State of Gujarat and Ors. vs.
Meghji Pethraj Shah Charitable Trust
and Ors., 1994(3) SCC 552, it has been
held:

"We are unable to see any
substance in the argument that the termination
of
arrangement
without
observing
the
principle of natural justice (audi alteram
partem) is void. The termination is not a
quasi-judicial
act
by
any
stretch
of
imagination; hence it was not necessary to
observe the principles of natural justice. It is
not also an executive or administrative act to
attract the duty to act fairly. It was - as has
been repeatedly urged by Sri Ramaswamy - a
matter governed by a contract/agreement
between the parties. If the matter is governed
by a contract, the writ petition is not
maintainable since it is a public law remedy
and is not available in private law field, e.g.,
where the matter is governed by a nonstatutory contract." (emphasis added)

27. Following aforesaid decision in
Pimpri
Chinchwad
Municipal
Corporation and Ors. vs. Gayatri
Construction
Company
and
Anr.,
2008(8) SCC 172 Court has held that in
the matter of non-statutory contract, High
1 All. M/s Veekey General Industries Vs. Union of India & Ors.
1257
Court should not have entertained writ
petition
under
Article
226
of
the
Constitution.

28. In view of above, we are clearly
of the view that it is not a fit case where
this Court must exercise its public law
remedy available under Constitution which
is extraordinary, discriminatory remedy
and instead petitioner must be relegated to
avail its alternative remedy by invoking
arbitration clause in the agreement or avail
common law remedy in Civil Court.

29. Writ petition is accordingly
dismissed.
----------
(2020)1ILR 1257

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.
THE HON'BLE SUNEET KUMAR, J.

Writ C No. 53941 of 2015
Along With
77 Other Writ C Cases

Suresh Jaiswal ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri S.K. Singh Paliwal, Sri Shashi Nandan,
Sri Manish Kumar Pandey

Counsel for the Respondents:
C.S.C., Sri Tarun Agarwal

A. Constitution of India - Article 243-O -
Bar to interference by courts in electoral
matters - Allahabad High Court Rules'
1952 - scope of Chapter V Rule 6 -
Reference to a larger Bench - held -
reference cannot be made for the mere
necessity of creating a precedent - an
issue being of importance by itself,
cannot be a ground for referring the
matter to the Larger Bench. (Para 49 & 60)

Judicial intervention in election matters should
be minimal - No absolute bar in exercise of
discretionary jurisdiction in a writ by the
Constitutional Court - Each matter has to be
examined with due care and circumspection by
the Court keeping in mind the self imposed
limitations and the Constitutional bar under
243-O of the Constitution of India - No
straight-jacket formula - The whole idea of self
imposed limitations is to provide an internal
remedy in such cases without compelling the
parties to go all the way to the Constitutional
courts or increase the burden of that Court,
unnecessarily. (Para 59)

Held: - The questions referred are hypothetical
and are only of the academic importance as it
is not known whether the issues raised survive
or not - Reference cannot be answered by the
Larger Bench even if it is of the view that the
settled law has not been considered by the
Division Bench while making the reference -
the questions referred cannot be answered as
questions of general importance as there was
no conflict - the reference to the Full Bench
was not properly made and it is annulled,
accordingly.(Para 62 & 65)

Reference answered. (E-7)

List of cases cited: -

1. Rishipal Singh vs. State of U.P. and others

2. Rajesh Kumar Singh vs. State of U.P. and other

3. L. Chandra Kumar Vs. Union of India and others

4. Laxmi Charan Sev Vs. A.K.M. Hasan Usman

5. N.P. Ponnuswami vs Returning Officer,
Namakkal

6. Mohindra Singh Gill Vs. Chief Election
Commissioner

7. Election Commission of India Vs. Ashok
Kumar
&
others