IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.6881, 16508 and 16509 of 2009 and M.P.NOS.1 TO 3 AND 1 AND 2 OF 2009 M/s.Creative Infrastructure, a Partnership firm rep. by its Partner Ramani Ramaswamy, New No.84 (Old No.50) "Dakshin", 1st Avenue, Indira Nagar, Adyar, Chennai-600 020. .. Petitioner in all petitions Vs. 1.The Government of Puducherry, rep. By the Chief Secretary, Government of Puducherry, Chief Secretariat, Puducherry. 2.The Secretary, Department of Ports, Government of Puducherry, Chief Secretariat. 3.M/s.Marg Limited, rep. By its Chairman & Managing Director Mr.G.R.K.Reddy, having its Registered office at "Marg AXIS" 4/318, Old Mahabalipuram Road, Kottivakkam, Chennai-600 041. 4.M/s.Karaikal Port Private Ltd., rep. By its Director Mr.G.R.K.Reddy, having its registered office at 81/1A, Maideen Palli Street, Karaikal, Puducherry-609 602. .. Respondents in
all petitions W.P.No.6881 of 2009 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first and second respondents to take necessary action against third and fourth respondents based on various representations dated 28.7.2007, 16.12.2008, 17.2.2009 and 09.04.2009 of the petitioner strictly in accordance with various Project Award documents.
W.P.No.16508 of 2009 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first and second respondent to invoke the powers under clause 10.9 of the concession agreement dated 25.1.2006 and substitute the fourth respondent concessionaire with another developer for the implementation of the Karaikal Port development project in public interest after following the procedure established by law.
W.P.No.16509 of 2009 has been preferred under Article 226 of the Constitution of India for the issue of a writ of declaration declaring that the conduct of first and second respondents in permitting the implementation of Karaikal Port Development by the fourth respondent without the equity participation of the petitioner in the fourth respondent is against public interest and contrary to the basis on which the LOI was issued and the Concession agreement, dated 25.1.2006 was signed and consequently, to direct the first and second respondents to direct the fourth respondent to proceed with the development of Karaikal Port Project only with the active participation of the petitioners as envisaged in the LOI dated 21.05.2005 and the concession agreement, dated 25.1.2006.
For Petitioner : Mrs.Nalini Chidambaram, SC for Mr.K.Moorthy For Respondents : Mr.D.Murugesan, GP (Pondy) assisted by Ms.Mala, Spl.G.P.(Pondy) for RR1 and 2 Mr.Vijay Narayan, SC for Mr.J.Sivam Sivanandaraj for RR3 and 4
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COMMON ORDER The petitioner in all the three writ petitions is a firm of partnership represented by its Partner styling itself as "Creative Infrastructure".
2.In the first writ petition, i.e. W.P.No.6881 of 2009, the prayer of the petitioner is for a direction to first and second respondents to take action against third and fourth respondents based on their various representations dated 28.7.2007, 16.12.2008, 17.2.2009 and 09.04.2009. When the writ petition came up on 18.4.2009, notice was taken on behalf of respondents 3 and 4. Further, when the matter came up on 22.4.2009, the name of the learned Government Pleader (Puducherry) was directed to be printed in the cause list. Even when that writ petition was pending, the same firm subsequently filed two writ petitions in W.P.Nos.16508 and 16509 of 2009.
3.In W.P.No.16508 of 2009, the prayer of the petitioner is for a direction to first and second respondents to invoke the powers under clause 10.9 of the concession agreement dated 25.1.2006 and substitute the fourth respondent concessionaire with another developer for the implementation of the Karaikal Port development project in public interest.
4.In W.P.No.16509 of 2009, the prayer of the petitioner is for a writ of declaration declaring that the conduct of first and second respondents in permitting the implementation of Karaikal Port Development by the fourth respondent without the equity participation of the petitioner in the fourth respondent company is against public interest and contrary to the basis on which the Letter of Intent (LOI) was issued and the Concession agreement, dated 25.1.2006 was signed beween the parties. They also seek for a consequential direction to first and second respondents to direct the fourth respondent to proceed with the development of Karaikal Port Project only with the active participation of the petitioners as envisaged in the LOI dated 21.05.2005 and the concession agreement, dated 25.1.2006.
5.When both these writ petitions came up for admission, on 17.8.2009 notice was taken on behalf of learned Government Pleader (Puducherry) for respondents 1 and 2 and by other counsels for private respondents. The matter was directed to be posted for admission with a direction to respondents to file counter affidavits. Accordingly, counter affidavit has been filed by respondents 3 and 4 on 22.6.2009 along with supporting documents. On behalf of respondents 1 and 2, a counter affidavit, dated 24.4.2009 was also filed. The petitioner filed an additional affidavits, dated 28.4.2009 and 26.11.2009 and also a rejoinder in W.P.No.6881 of 2009, dated 29.06.2009.
6.Heard the arguments of Mrs.Nalini Chidambaram, learned Senior Counsel leading Mr.K.Moorthy, learned counsel appearing for petitioner, Mr.D.Murugesan, learned Government Pleader (Puducherry) leading Ms.Mala, learned Special Government Pleader (Puducherry) for respondents 1 and 2 and Mr.Vijay Narayan, learned Senior Counsel leading Mr.J.Sivam Sivanandaraj, learned counsel appearing for respondents 3 and 4.
7.The case of the petitioner as projected in the affidavit was that the petitioner firm was floated in the year 2002 with two partners having equal stake. They are in the business of Port Development since then. Both the partners of the firm were technopreneurs from IIT, Madras. They have extensive experience in development of Ports. It is also claimed that the third respondent was running business in real estate, building and wind mills, etc. and they have no knowledge about Port sector. In order to enter into the Port sector, the third respondent approached the petitioner. The petitioner firm associated itself with the third respondent to claim development experience to develop the Port on the basis of BOT. Based on mutual decision between the parties, the third respondent and the petitioner initiated a concept of developing a deepwater, all-weather port at Karaikal with the Government of Puducherry. Various discussions took place between the petitioner firm and the Government of Puducherry during June, 2005. It called for an Expression of Interest (EOI) from all interested parties for development of deepwater, all-weather port at Karaikal. Pursuant to the EOI, the petitioner firm organised a consortium consisting of third respondent as a lead member, the petitioner as an associate as well as a Belgium company and Axis Bank. The Government of Puducherry by its letter, dated 12.7.2005 invited all parties who had responded to the EOI for a formal presentation to be made before the High Powered Committee on 19.7.2005. The presentation was made by one of the partner of the petitioner firm.
8.Based on the representation made, the Port Privatisation committee of the Government of Puducherry issued a Letter of Intent (LOI) to the third respondent being the lead member of the consortium on 21.9.2005. The letter itself came to be issued based on the presentation made by the partner of the petitioner firm, as the third respondent never had their own experience in the matter of development of Port. According to the petitioner, the third respondent's experience in developing Port was nil and M/s.L&T Ramboll has only engineering skill. The Belgium company is only a dredging company and the Axis Bank was the financing bank. Therefore, if at all any prior experience, it is only the petitioner firm which has experience. The LOI granted by the first respondent involved preparation of a Detailed Project Report (DPR) by the consortium within 45 days from the date of LOI. It was the petitioner who prepared DPR along with M/s.L&T Ramboll, Chennai. It was submitted well before the cut-off date. The DPR submitted by the third respondent was reviewed by the Government and its Consultant, i.e. the National Institute of Port Management, Chennai and was approved by them. The DPR was signed by the authorised signatories and was made an an integral part of the Concession agreement. The agreement clearly mentioned that the team was to be led by the third respondent. Since the DPR fulfilled all the pre-requisites, the Government of Puducherry entered into a long term BOT Concession agreement with the third respondent on 25.1.2006. The Concession agreement envisages construction period of 40 months and thereafter, operation period of 30 years extendable by two additional periods of 10 years each.
9.The Government of Puducherry also issued G.O.Ms.No.2, dated 21.1.2006 approving the agreement, to be entered into between the Government of Puducherry and the third respondent. Since the Concession agreement obviously includes the name of the petitioner that the Associates will be the stakeholders in the Special Purpose Company (SPC) to be formed, any action contrary to the said understanding will be amounting to gross misrepresentation. Though the petitioner firm expressed its readiness and willingness to participate in the equity of the company upto 26% based upon their experience, the same was not done. Inspite of the petitioner's readiness and willingness, which were given in writing by various representations, dated 28.7.2007, 16.12.2008, 17.2.2009 and 09.04.2009, in the formation of fourth respondent company, the third respondent had declined to allow the participation of the petitioner in the Special Purpose Company, i.e. 4th respondent for one reason or other. Even the Government of Puducherry (first respondent) was not showing interest in implementing the true spirits of the Concession Agreement.
10.The petitioner firm had substantially discharged its responsibility as a consortium member by undertaking appropriate studies consisting of huge documentation. It is also claimed that without the involvement of the petitioner firm, the development, operations, Traffic arrangement for Karaikal Port project can never be completed. The petitioner claimed that the Director of Port by his letter, dated 30.3.2007 informed the petitioner that their role has been sufficiently mentioned for the development, operations and traffic arrangement for Karaikal Port project and their association with the third respondent company was recognised. The fact that they were the associates of third respondent was also put out in the website of 2006 by the third respondent. It is further claimed that without participation of the petitioner, they would not have got the LOI.
11.It is further claimed that there was no response to the petitioner's letter from the third respondent. Though the Port work was incomplete, it has been thrown open for operations. By the exclusion of expert in the related field of Port development, the project had suffered substantially. It was further claimed that because of lack of planning and indifference, the loan amount even before Phase-I is completed had reached Rs.453 crores, which is 150 crores higher than the approved amount and that the substantial work has not been completed so far. The expenditure by the Government of Puducherry was also bound to increase, which necessitated the petitioner to make complaint to the authorities relating to various illegal acts committed by the third respondent. The petitioner's continued representations show that they had made out a strong case for cancellation of award of project to the third respondent. By the terms of the Concession Agreement, the Government has power to review the project regarding its progress with the help of experts.
12.It was further claimed that despite petitioner's seeking to know more information through the mechanism of RTI Act, the information have been stonewalled. It was further stated that the first and second respondents had formed Port Privatisation Committee for the Karaikal Port consisting of various Head of Department. They were in-charge of pre-tender process till award of the port project. All these proceedings have been recorded in the minutes, which will speak about the claim made by the petitioner. It was further claimed that if respondents are permitted to continue the port project without the participation of the petitioner, it will lead to irreparable loss and damages. Thefore, the prayer of the petitioner may be considered.
13.In response to these averments, the first and second respondents in the counter affidavit stated that the three writ petitions are not maintainable and it is a clear abuse of process of Court. The petitioner's prayers cannot be considered to enforce the contractual obligation of the parties. The allegations made by the petitioner are contrary to truth. It was claimed that Karaikal port has been in existence from time immemorial and has also been referred to Sangam literature. However, the new Greenfield port at Karaikal was proposed by the Government during 1996. The Captive Marine Terminal facility for Chemplast Sanmar was permitted to be set up at Karaikal during April, 2003. There were repeated request for a regular port at Karaikal under the Central Sector project. It was only on 17.3.2005 in the Budget speech, the Government took up a policy decision to have a port at Karaikal and the same was to be conceived with the private sector participation. This was to be made on the basis of Build, Operate, Own share and Transfer (BOOT).
14.It was claimed that an offer made by the third respondent was scrutinsed by the Port Privatisation committee and the third respondent was issued LOI on 21.9.2005 because their offer was the most attractive offer. They were asked to prepare DPR within 45 days and also to create a bank guarantee of Rs.50 lakhs. In respect of same, the third respondent submitted the DPR which was evaluated with the consultant, i.e. National Institute of Port Management, which is an autonomous body owned by the Government of India. The Government by G.O.Ms.No.2, dated 21.1.2006 accepted and approved the DPR and also the execution of concession agreement with the third respondent as a developer of Port.
15.It is seen from the concession agreement that the Award has been made only to the third respondent and in favour of the fourth respondent and that it is not given to any consortium as contended by the petitioner. Even the award of 26% shareholdings in the SPC for developing Karaikal port only vest with the developer, which is the third respondent and not for anyone else. If the petitioner has any right as against third respondent, they will have to work out their right among themselves and not to drag the first respondent in their fables. It was also claimed that the progress made by the developer has been reviewed and the Government is satisfied with the progress. Though the petitioner made several allegations, it was only with a view to secure the stake allotted to the developer. The allegations of the petitioner are frivolous. The Government did not enter into any correspondence with the petitioner.
16.In the counter affidavit filed by respondents 3 and 4, dated 22.6.2009, apart from setting out circumstances under which the third respondent got concession agreement, the allegations made by the petitioner have been completely denied. It is relevant to extract the following assertions made in the counter affidavit with reference to the specific allegations made by the petitioner, which is as follows:
"3....The partners of the petitioner firm also ran into a lot of operational, technical, financial and other difficulties and were during the period from 2001 to 2005 not engaged in any meaningful or professional port related ventures ..... The partners of the petitioner firm chose to associate with the third respondent acknowledging the fact that, by then, it was a company already well established and forming part of the group of companies which were in existence since 1990, while they were merely two individuals with no support, technical or operational staff or other executive set-ups. ..... It is denied that the petitioner's past experience was ever highlighted to the first respondent for the development of Karaikal Port, as the petitioner firm which was admittedly created only in the year 2002 had not undertaken any port projects by the year 2005 to seek credit therefor....
4.... It is vehemently denied that there was any joint decision between the petitioners and the third respondent or that the concept of developing a deep water, all-weather port at Karaikal was initiated by the petitioners. It is an undeniable fact that the plans for setting up a port at Karaikal had been mooted out by the first respondent as early as 1996.
6.... The presentation of the third respondent was made before the High Powered Committee on 19th July 2005 by its directors and not by Mr.Ramani Ramaswamy, in his individual capacity or as partner of petitioner firm. All the self-seeking and self-laudatory averments of the petitioners in relation to the making of the presentation are denied.
7..... In the entire process of award of the concession, the first respondent corresponded with and awarded the letter of intent only to the third respondent. Subsequently the concession also was awarded only to the third respondent. Further this was also not awarded to the third respondent in the so-called capacity as a lead member of the consortium..... All this clearly establish that there was no consortium and the first respondent dealt with the third respondent as the sole developer.....
9.... the petitioners being complete strangers to the said Concession Agreement, can never place any reliance thereon, nor press the same into service or seek any relief or remedy by or under the same, as they are neither a party or privy to the same. Secondly, there is not even an iota of truth to contend that the same had been awarded to a so-called consortium being represented by the Third respondent as a Lead Member. There is no merit in contending that the term "associates" as envisaged in the Concession Agreement would mean only the institutions who have offered to extend their support to the bid of the third respondent while it was responding to the expression of interest for the Karaikal Port Project. .... Besides, under the scheme of the Concession Agreement, there is no requirement or mandatory need for any of the "associates" of the petitioners to hold at least 26% of shareholding in the SPC, but rather the tone, tenor and unassailable import of the said requirement is that the minimum safeguard of holding 26% shareholding in the SPV should be met and maintained for at least a period of 10 years from the date of commercial operation, by third respondent company and their promoters, nominees and associates. In other words, it is merely an anti-dilution covenant required to be complied with by the third respondent.....
11..... the petitioners, despite an interim order dated 13th April 2009 of the Hon'ble High Court of Madras Court passed in O.A.Nos.319 and 320 of 2009 in C.S.No.291 of 2009 directing the petitioners, inter alia, herein not to (a)interfere or obstruct with the peaceful implementation, completion, commercial commissioning and functioning of the Karaikal Port Project by the third/fourth respondents and (b)directly or indirectly publish any statement, whether orally or in writing or otherwise in, any manner, which defames, derogates or denigrates the third/fourth respondent's reputation and its projects in the implementation of the Karaikal Port Project, proceeded to prefer the instant writ petition seeking reliefs and remedies which will tantamount to interfering and obstructing in the peaceful implementation, completion, commercial commissioning and functioning of the Karaikal Port Project.....
28.....The petitioners have also categorically and unambiguously declared and averred in their letter dated 28th July 2007 addressed to the Secretary (Ports), government of Pondicherry, Pondicherry and others that "we are no longer associated with the project". In the backdrop of the above, neither petitioners nor its partners can claim, maintain or seek any right or remedy against the third and fourth respondents in relation to the development of the Karaikal Port Project."
17.In response to the counter, the petitioner had filed a rejoinder dated 29.6.2009. In the rejoinder, once again they had repeated their original assertion. They have also contended that the Government of Puducherry has no right to execute the project contrary to the power vested in the Indian Ports Act, 1908.
18.With reference to the jurisdiction of the Government of Puducherry, reliance was placed upon the judgment of the Supreme Court in Villianur Iyarkkai Padukappu Maiyam v. Union of India reported in (2009) 7 SCC 561. The Supreme Court in paragraph 204 of the judgment held as follows:
"204. These facts indicate that the Government of Pondicherry had full jurisdiction to deal with the minor port situated in the Union Territory and it was not necessary for the Government of Pondicherry to take prior approval of the Central Government before awarding the contract."
19.It was contended by Mrs.nalini Chidambaram, learned Senior counsel that the case referred to by the respondents, i.e. Villianur Iyarkkai Padukappu Maiyam (cited supra) is still pending in the Supreme Court and had not reached any finality and therefore, no reliance can be placed upon the same.
20.On the question of maintainability of writ petitions, reliance was placed upon the judgment of the Supreme Court in ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., reported in (2004) 3 SCC 553. The relevant passage found in paragraph 23 may be usefully extracted below:
"23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party of the contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent....."
21.Thereafter, the learned Senior Counsel also placed reliance upon the judgment of the Supreme Court in State of Kerala v. Zoom Developers (P) Ltd., reported in (2009) 4 SCC 563. In that case, the Supreme Court went into the question as to what constitute consortium and to what extent an agreement with consortium affects individual responsibility and upheld the order of the Kerala High Court.
22.The learned Senior counsel also placed reliance upon the judgment of the Himachal Pradesh High Court in Reliance Infrastructure Limited Vs. State of Himachal Pradesh and others reported in MANU/HP/0312/2009, where a writ was issued against the State of Himachal Pradesh for violating the terms of agreement and they were restrained from entering into an agreement to any other party.
23.The learned Senior counsel for the petitioner also placed reliance upon the judgment of the Supreme Court in Food Corporation of India v. SEIL Ltd., reported in (2008) 3 SCC 440. The following passages found in paragraphs 23 to 25 may be usefully extracted below:
"23. Article 14 of the Constitution of India has received a liberal interpretation over the years. Its scope has also been expanded by creative interpretation of the court. The law has developed in this field to a great extent. In this case, no disputed question of fact is involved.
24. The High Court, in an appropriate case, may grant such relief to which the writ petitioner would be entitled to in law as well as in equity.
25. We do not, thus, find any substance in the contention of Mr Sharan that while exercising its review jurisdiction, no interest on the principal sum could have been directed to be granted by the High Court. A writ court exercises its power of review under Article 226 of the Constitution of India itself. While exercising the said jurisdiction, it not only acts as a court of law but also as a court of equity. A clear error or omission on the part of the court to consider a justifiable claim on its part would be subject to review; amongst others on the principle of actus curiae neminem gravabit (an act of the court shall prejudice none). We appreciate the manner in which the learned Judge accepted his mistake and granted relief to the respondents."
24.The learned Senior counsel also placed reliance upon the judgment of the Supreme Court in Karnataka State Forest Industries Corpn. v. Indian Rocks, reported in (2009) 1 SCC 150. In paragraphs 38 and 39, the Supreme Court held as follows:
"38. Although ordinarily a superior court in exercise of its writ jurisdiction would not enforce the terms of a contract qua contract, it is trite that when an action of the State is arbitrary or discriminatory and, thus, violative of Article 14 of the Constitution of India, a writ petition would be maintainable. (See ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.3)
39. There cannot be any doubt whatsoever that a writ of mandamus can be issued only when there exists a legal right in the writ petition and a corresponding legal duty on the part of the State, but then if any action on the part of the State is wholly unfair or arbitrary, the superior courts are not powerless. ...."
25.Per contra, Mr.D.Murugesan, learned Government Pleader (Puducherry) contended that similar challenge to the development of Puducherry Port by way of Public Interest Litigation was rejected by a division bench of this court in Villianur Iyarkkai Padukappu Maiyam in W.P.No.12337 of 2006, dated 10.8.2006, which order was also confirmed by the Supreme Court vide its judgment in 2009 (7) SCC 561. He also stated that the dispute raised by the petitioner is of a private nature and such questions cannot be gone into the writ petition under Article 226 of the Constitution. The quarrel between the petitioner and the third respondent cannot in any way affect the BOT agreement entered into between respondents 1 and 2 and respondents 3 and 4. If at all, the petitioner has to invoke his right elsewhere.
26.Mr.Vijay Narayan, learned Senior Counsel appearing for respondents 3 and 4 supported the stand of the learned Government Pleader (Puducherry). In addition, the learned Senior Counsel relied upon the judgment of the Supreme Court in State of U.P. v. Bridge & Roof Co. (India) Ltd., reported in (1996) 6 SCC 22. He placed reliance upon the following passages found in paragraph 15 and 21, which is as follows:
"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 8-D(1).
21. There is yet another substantial reason for not entertaining the writ petition. The contract in question contains a clause providing inter alia for settlement of disputes by reference to arbitration (clause 67 of the contract). The arbitrators can decide both questions of fact as well as questions of law. When the contract itself provides for a mode of settlement of disputes arising from the contract, there is no reason why the parties should not follow and adopt that remedy and invoke the extraordinary jurisdiction of the High Court under Article 226. The existence of an effective alternative remedy in this case, provided in the contract itself is a good ground for the court to decline to exercise its extraordinary jurisdiction under Article 226. The said article was not meant to supplant the existing remedies at law but only to supplement them in certain well-recognised situations. As pointed out above, the prayer for issuance of a writ of mandamus was wholly misconceived in this case since the respondent was not seeking to enforce any statutory right of theirs nor was it seeking to enforce any statutory obligation cast upon the appellants. Indeed, the very resort to Article 226 whether for issuance of mandamus or any other writ, order or direction was misconceived for the reasons mentioned supra.
27.He also placed reliance upon the judgment of the Supreme Court in Kerala State Electricity Board and another v. Kurien E. Kalathil, reported in (2000) 6 SCC 293. The following passage found in paragraph 10 may be usefully extracted below:
"10. We find that there is a merit in the first contention of Mr Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a 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."
28.The learned Senior Counsel for respondents 3 and 4 also placed reliance upon the judgment of the Supreme Court in National Highways Authority of India v. Ganga Enterprises, reported in (2003) 7 SCC 410. In paragraph 6 of the said judgment, the Supreme Court held as follows:
"6. The respondent then filed a writ petition in the High Court for refund of the amount. On the pleadings before it, the High Court raised two questions viz.: (a) whether the forfeiture of security deposit is without authority of law and without any binding contract between the parties and also contrary to Section 5 of the Contract Act; and (b) whether the writ petition is maintainable in a claim arising out of a breach of contract. Question (b) should have been first answered as it would go to the root of the matter. The High Court instead considered Question (a) and then chose not to answer Question (b). In our view, the answer to Question (b) is clear. It is settled law that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. It has been so held in the cases of Kerala SEB v. Kurien E. Kalathil1, State of U.P. v. Bridge & Roof Co. (India) Ltd.2 and Bareilly Development Authority v. Ajai Pal Singh3. This is settled law. The dispute in this case was regarding the terms of offer. They were thus contractual disputes in respect of which a writ court was not the proper forum. Mr Dave, however, relied upon the cases of Verigamto Naveen v. Govt. of A.P.4 and Harminder Singh Arora v. Union of India5. These, however, are cases where the writ court was enforcing a statutory right or duty. These cases do not lay down that a writ court can interfere in a matter of contract only. Thus on the ground of maintainability the petition should have been dismissed."
29.Considering the rival submissions, this court is of the opinion that the three writ petitions filed by the petitioner are not maintainable. It is not withstanding the fact that in case of any legal infringement by the State or arbitrary action on the part of State, the power under Article 226 of the Constitution is still available. The nature of grievance projected by the petitioner is purely their own internal dispute with the third respondent. If at all, it can be only resolved through civil litigation before the appropriate civil court. The Government of Puducherry has no way come into the picture. In fact, declaratory relief sought for by the petitioner is very peculiar. By the nature of relief, the petitioner wants to latch on to the concession agreement to the exclusion of the third respondent. The attempt to interpret the concession agreement to get a stake by the petitioner is not an issue which can be gone into a writ petition under Article 226 of the Constitution. Merely because the petitioner had sent some representations to the respondents 1 and 2, that by itself will not give locus standi to the petitioner to seek relief from respondents 1 and 2, who are parties to concession agreement with respondents 3 and 4. This court do not find any illegality or arbitrary action on the part of respondents 1 and 2 so as to adjudicate the issues raised in public interest.
30.In the light of the above and in view of the binding legal precedents cited above, this court is not inclined to entertain the three writ petitions. Accordingly, all the three writ petitions will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed.
1.The Chief Secretary, The Government of Puducherry, Government of Puducherry, Chief Secretariat, Puducherry.
2.The Secretary, Department of Ports, Government of Puducherry, Chief Secretariat