Decided on March 17,1983

Narendra Nath Sahoo Appellant


Monoj Kumar Mukherjee, J. - (1.) In this application under Article 226 of the Constitution the grievance of the petitioner is that the Contai Municipality, the respondent No. 2 has not, in spite of repeated demands, paid him the sum of Rs. 57,254/- which he is entitled to get as balance payment for construction of certain dwelling houses of the Municipality. He, accordingly, prays for the following reliefs:- "(a) Writ in the nature of Mandamus directing the respondents particularly the respondents no. 2 and 3 the Municipality and/or the Chairman and the Commissioner, Contai Municipality, District-Midnapore to pay the balance amount of Rs. 57,254/- to your petitioner: (b) A writ in the nature of Certiorari directing the respondents to certify and to bring the entire records of this case before the Hon'ble Court within such time as may be fixed by this Hon'ble Court so that the conscionable justice may be administered."
(2.) At the time of hearing of this writ application the Municipality raised a preliminary objection as to the maintainability of the application on the ground that the remedy of the petitioner was in a Money Suit, as in the jurisdiction this Court had no power to issue a writ of mandamus for a branch of contract. Mr. Bhuina, appearing for the petitioner on the other hand, contended that a writ application was maintainable for such a relief, as the breach was committed by a statutory body. In support of his contention Mr. Bhuina first relied upon a decision of the Supreme Court in the case of D.F.O. South Kheri v. Ram Sanehi, reported in AIR 1973 SC page 205 which laid down the proposition that where an action of a public authority invested with statutory powers was challenged, a writ petition was maintainable even if the right to relief arose out of an alleged breach of contract. Since the facts of that case are clearly distinguishable from the present one the principle laid down therein is of no avail to the petitioner. In that case the Divisional Forest Officer (DFO), South Kheri Division cancelled an order earlier passed by the Sub-ordinate Forest Authority, under which the writ petitioner was entitled to cut timbers from a forest. The repelling the contention of D.F.O. in that case, that since the dispute arose out of the terms of the contract and the Divisional Forest Officer under the terms of the contract had authority to modify any action taken by any Sub-ordinate Authority the remedy of the writ petitioner was to institute an action in the Civil Court and that the writ petition was not maintainable, the Supreme Court observed as follows:- "But in the present case the order is passed by a public authority modifying the order or proceeding of subordinate forest authority. By that order he has deprived the respondent of a valuable right. We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this Court in K.N. Guruswamy's case, (1955) 1 SCR 305 : (AIR 3954 SC 592) there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power."
(3.) In the instant case the claim of the petitioner is a monetory one, solely based upon a breach of contract and no question of any breach of statutory obligation by the Municipal authorities arises.;

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