Decided on August 19,1963


Referred Judgements :-


Cited Judgements :-



- (1.)This writ application poses what I consider to be an interesting question though I do not see my way to accept, if I may say so, the able arguments advanced by counsel for the petitioner. The matter arises out of a contract, consisting of only four paragraphs embodied in Ext. P1 dated 10-7-1953. By this agreement, the petitioner bound herself to serve the State for a period of three years after obtaining the medical degree if an appointment is offered to her by the Government of Travancore Cochin within a period of six months after taking the degree. She finished her medical course in January 1959 and took her degree on 25-3-1959. Before that on 1-2-1959, she was appointed as a House Surgeon and continued to serve the State in that capacity till 31-1-1960. Soon after she left for Madras and got employed in the Madras State on 4-2-1960.
The State of Kerala, the first respondent, passed an order Ext. P 4 on 20-2-1960, which I understand to be an orders appointing 8 persons including the petitioner whose name appeared as No. 1 as House Surgeon. That order directed the Deputy Directors, Health Services, to immediately issue posting orders. It is seen from Ext. P 4 that copy of this order has been sent to the candidates (through the Principal Medical College, Trivandrum). In the papers available in these proceedings, the only appointing order issued to the petitioner is seen to be Ext. P 3 dated 9-5-1960. The petitioner has admittedly not served the State pursuant to Ext. P 3 and according to the first respondent, she has committed breach of the contract, Ext. P 1. They have, therefore, taken action under the Revenue Recovery Act in accordance with the provisions in para 3 of Ext. P1.

(2.)Counsel for the petitioner has submitted that this action taken by the first respondent is unwarranted because it is unsupported by the authority of law; it is an infringement of Art.31 of the Constitution of India amounting to deprivation of the property of the petitioner without the authority of law; that the whole procedure is on the basis of the decision made by the Government and that behind the back of the petitioner without affording her any chance of either pleading or proving her case; that the matter involved is simple and raises a question of law depending solely on the interpretation of ext. P1; and that therefore I am entitled, may, bound to issue an appropriate writ preventing the first respondent from proceeding with the recovery of the sum of Rs. 2,500/- provided in Ext. P1.
(3.)It is not disputed that ordinarily the question about the breach of a contract or its enforceability should be determined in proceedings other than Art.226 proceedings. In fact the decision relied on by counsel for the petitioner has also said the same thing. Justice J. K. Tandon in Shafiullah v. State of Uttar Pradesh, AIR 1961 All 485 remarked:
"Ordinarily this Court will refuse to interfere under Art.226 of the Constitution in a matter which in final analysis has to interpret a contract arrived at between the parties and give relief upon it. The proper forum for such disputes to be settled is the agency of regular courts but where, as in the instant case, the State decides to employ coercive process of recovering the amount considered to be payable to it as an arrear of land revenue, the Court will not hesitate to intervene if upon the facts accepted or established the amount sought to be recovered is not payable to it even though the terms of the contract have to be construed. The extra reason is the employment by the State of the extra ordinary power to make the recovery as an arrear of land revenue which, as everyone is aware, cannot be resisted except on very limited grounds."

While, therefore, accepting the general principle. His Lordship felt that where "the State decides to employ coercive process of recovering the amount considered to be payable to it as an arrear of land revenue, the court will not hesitate to intervene if upon the facts accepted or established" it is found that the amount is not payable. The facts can be accepted in writ proceedings only if they are admitted and they can be established only on conclusions drawn by the Court on the evidence adduced. I do not think that Art.226 proceedings, excepting perhaps where admissions have been made, which of course is very rare, -- and this is not one of those cases where the points raised by the petitioner have been accepted by the other side, -- are meant for reaching conclusions by drawing inferences from evidence adduced before the Court. This, I think, must be done in the regular Civil Courts and not under Art.226.

I do not think that the pressing into service of the Revenue Recovery Act alters the situation. The employment of that machinery is the result of a contract. The particular sanction behind such use is only the consent given by the other party. This according to me is nothing more than one of the contracting parties who had deposited a certain sum of money with the other contracting party for due performance of his obligations under the contract agreeing to have that forfeited to the other contracting party on his failure to carry out his obligations. In such circumstances it is certainly open to the person with whom the money has been deposited to appropriate that amount if there has been a breach of the contract by the person who deposited that amount. And I am sure no Court will say that such appropriation can be made only after that person had first established in a Court of law his right to appropriate. No doubt the person resisting the appropriation can establish before a court that the appropriation is ill founded or baseless. Similarly in this case, it appears to me, that the petitioner before me will have to approach the Civil Court if the petitioner feels that the stand taken by the 1st respondent that there has been a breach of the contract on her part is baseless or ill founded.


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