G. Gangi Reddy Vs. Depot Manager/incharge, Iml Depot, Karimnagar and Others - Court Judgment

Excerpt:
constitution - writ jurisdiction - article 226 of constitution of india - conditions of contract cannot be enforced by way of writ proceedings - directions to pay amount issued by authority based on certificate of adm - direction challenged on ground that certificate of adm obtained by fraud - allegations of commission of fraud or fabrication of false certificate involves disputed question of fact - question to be adjudicated only through properly constituted civil suit and not in writ proceedings. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - 8. it is now a well-settled principle of law that no equitable relief can be granted where the party's hands are tainted.orders.b. sinha, cj1. this appeal is directed against an order dated 18-12-1996 passed by a learned single judge of this court in wp no.15028 of 1996 whereby and whereunder the writ petition filed by the appellant herein was dismissed.2. in the writ petition, the petitioner claimed for the following reliefs:'for the reasons stated in the accompanying affidavit it is prayed that this hon'ble court may be pleased to issue any appropriate writ, order or direction preferably a writ in the nature of mandamus declaring the action of the respondents 1 and 3 in not making payment to the petitioner of the amount of rs.78,800/- as directed by respondent no.2 through letter dated 2-4-1994 as illegal and arbitrary and consequently direct the respondents to pay the said amount with interest at the rate of 15% from december, 1993 and pass such other and further orders as the hon'ble court may deem fit and proper in the circumstances of the case'.3. before the learned single judge, as also before us, the contention raised on behalf of the appellant is that the competent authority meaning thereby the general manager (excise), having himself instructed the depot manager (arrack) for releasing of a sum of rs.78,800/- in terms of his letter dated 2-4-1994, the respondents herein could not have raised a contention for the first time in the writ petition that a certificate was falsely issued by the admin connivance of the petitioner. according to the learned counsel the purported fraud alleged at the hands of the petitioner could not have been taken recourse to for the purpose of obtaining the relief to the writ petitioner in public law remedy having regard to the fact that prior thereto the principles of natural justice had not been complied with.4. there cannot be any doubt that enforcement of the conditions of contract is not permissible in a writ proceeding. the petitioner claimed the refund of the said amount inter alia on the ground that the same arose out of a breach of contract. in a given case, a writ court may direct payment of the amount despite a general bar to the effect that normally no money claim can be adjudicated upon in writ proceedings, when the concerned authorities make a clear admission in this regard.5. the question before the learned single judge, as also before us, is as to whether having regard to the averments made in the counter-affidavit by the respondents herein, the writ petition could have been allowed.6. the answer to the aforementioned question must be rendered in negative.7. the court in exercise of its jurisdiction under article 226 of the constitution of india would consider the materials on record which are brought before it and would not proceed to ignore it simply on the ground that a purported admission as regards the alleged entitlement to the said amount has been accepted by the respondents inasmuch as thereafter a fraud has been detected. if the direction issued by the general manager (excise) was based on the certificate of the adm, which according to the respondents was falsely procured, the entire edifice of the writ petition fails.8. it is now a well-settled principle of law that no equitable relief can be granted where the party's hands are tainted. so far as the allegations of commission of fraud or fabrication of a false certificate is concerned the same may involve a disputed question of fact. such a disputed question of fact can be adjudicated upon only in a properly constituted civil suit and not in any proceedings. in state of u.p. v. bridge and roof co. (india) ltd., : air1996sc3515 , b.p. jeevan reddy, j., speaking for the bench held:'15. in our opinion, the very remedy adopted by the respondent is misconceived. it is not entitled to any relief in these proceedings i.e., in the writ petition filed by it. the high court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiterating the effect of the order of the deputy commissioner made under the proviso to section 8d(1).16. 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. whether any amount is due to the respondent from the appellant-government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. the prayer in the writpetition viz., to restrain the government from deducting particular amount from the writ petitioner's bill (s) was not a prayer which could be granted by the high court under article 226. indeed, the high court has not granted the said prayer.17. secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of sub-clause (4) of clause 70 of the contract is again not a matter to be agitated in the writ petition. that is again a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the civil court, as the case may be. if any amount is wrongly withheld by the government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the civil court, as the case may be, according to law. similarly if the government says that any over-payment has been made to the respondent, its remedy also is the same'.9. i laving regard to the aforementioned authoritative pronouncement of the apex court, we are of the opinion that no relief can be granted to the appellant herein. the writ appeal is devoid of merit and the same is accordingly dismissed. no order as to costs.

Judgment:
ORDER

S.B. Sinha, CJ

1. This appeal is directed against an order dated 18-12-1996 passed by a learned single Judge of this Court in WP No.15028 of 1996 whereby and whereunder the writ petition filed by the appellant herein was dismissed.

2. In the writ petition, the petitioner claimed for the following reliefs:

'For the reasons stated in the accompanying affidavit it is prayed that this Hon'ble Court may be pleased to issue any appropriate writ, order or direction preferably a writ in the nature of mandamus declaring the action of the respondents 1 and 3 in not making payment to the petitioner of the amount of Rs.78,800/- as directed by respondent No.2 through letter dated 2-4-1994 as illegal and arbitrary and consequently direct the respondents to pay the said amount with interest at the rate of 15% from December, 1993 and pass such other and further orders as the Hon'ble Court may deem fit and proper in the circumstances of the case'.

3. Before the learned single Judge, as also before us, the contention raised on behalf of the appellant is that the competent authority meaning thereby the General Manager (Excise), having himself instructed the Depot Manager (Arrack) for releasing of a sum of Rs.78,800/- in terms of his letter dated 2-4-1994, the respondents herein could not have raised a contention for the first time in the writ petition that a certificate was falsely issued by the ADMin connivance of the petitioner. According to the learned Counsel the purported fraud alleged at the hands of the petitioner could not have been taken recourse to for the purpose of obtaining the relief to the writ petitioner in public law remedy having regard to the fact that prior thereto the principles of natural justice had not been complied with.

4. There cannot be any doubt that enforcement of the conditions of contract is not permissible in a writ proceeding. The petitioner claimed the refund of the said amount inter alia on the ground that the same arose out of a breach of contract. In a given case, a writ Court may direct payment of the amount despite a general bar to the effect that normally no money claim can be adjudicated upon in writ proceedings, when the concerned authorities make a clear admission in this regard.

5. The question before the learned single Judge, as also before us, is as to whether having regard to the averments made in the counter-affidavit by the respondents herein, the writ petition could have been allowed.

6. The answer to the aforementioned question must be rendered in negative.

7. The Court in exercise of its jurisdiction under Article 226 of the Constitution of India would consider the materials on record which are brought before it and would not proceed to ignore it simply on the ground that a purported admission as regards the alleged entitlement to the said amount has been accepted by the respondents inasmuch as thereafter a fraud has been detected. If the direction issued by the General Manager (Excise) was based on the certificate of the ADM, which according to the respondents was falsely procured, the entire edifice of the writ petition fails.

8. It is now a well-settled principle of law that no equitable relief can be granted where the party's hands are tainted. So far as the allegations of commission of fraud or fabrication of a false certificate is concerned the same may involve a disputed question of fact. Such a disputed question of fact can be adjudicated upon only in a properly constituted civil suit and not in any proceedings. In State of U.P. v. Bridge and Roof Co. (India) Ltd., : AIR1996SC3515 , B.P. Jeevan Reddy, J., speaking for the Bench held:

'15. In our opinion, the very remedy adopted by the respondent is misconceived. It is not entitled to any relief in these proceedings i.e., in the writ petition filed by it. The High Court appears to be right in not pronouncing upon any of the several contentions raised in the writ petition by both the parties and in merely reiterating the effect of the order of the Deputy Commissioner made under the proviso to Section 8D(1).

16. 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. Whether any amount is due to the respondent from the appellant-Government under the contract and, if so, how much and the further question whether retention or refusal to pay any amount by the Government is justified, or not, are all matters which cannot be agitated in or adjudicated upon in a writ petition. The prayer in the writpetition viz., to restrain the Government from deducting particular amount from the writ petitioner's bill (s) was not a prayer which could be granted by the High Court under Article 226. Indeed, the High Court has not granted the said prayer.

17. Secondly, whether there has been a reduction in the statutory liability on account of a change in law within the meaning of sub-clause (4) of Clause 70 of the Contract is again not a matter to be agitated in the writ petition. That is again a matter relating to interpretation of a term of the contract and should be agitated before the arbitrator or the civil Court, as the case may be. If any amount is wrongly withheld by the Government, the remedy of the respondent is to raise a dispute as provided by the contract or to approach the civil Court, as the case may be, according to law. Similarly if the Government says that any over-payment has been made to the respondent, its remedy also is the same'.

9. I laving regard to the aforementioned authoritative pronouncement of the Apex Court, we are of the opinion that no relief can be granted to the appellant herein. The writ appeal is devoid of merit and the same is accordingly dismissed. No order as to costs.