- (1.) "All State activities depend first on the Treasury. Therefore, a king shall devote his best attention to it." (Arthshastra 2.8.1,2) I. Non payments by State for works done, a vexed issuePresent endeavour 1. The batch of writ petitions is at the instance of various persons to whom contracts of public works have been awarded by the State and its functionaries. The petitioners contend that the works have been completed as envisaged, but the payments therefor, as provided by the terms of the contract, have not been made. The choice of public law remedy is resorted on a plea that there is no disputed question of fact and they merely want their representations decided and the payments released. Instead of a suit for recovery of money, the writ petitions are couched in the form of a mandamus to release the money for the works done. II. Parties to the writ petitions
(2.) It shall be the first exercise to merely outline the classes of persons who are parties to the writ petitions, which have piled up in less than 2 months and if past experience is any indication, there is no let up possible unless we come by a greater fiscal discipline from public authorities in not allowing for expenditures to be incurred without sufficient resource allocations. The petitioners are private individuals or Cooperative Societies or Companies to whom the contracts have been awarded and the public authorities against whom demands are made are: Department of Irrigation in 79 petitions, 17 against the Local Bodies, 17 petitions against the Department of Water Supply and Sanitation, 11 petitions against PWD (B&R), 4 against the Punjab Mandi Board, 2 against the Council of Citrus and Agri-Juicing and 1 each against the Food Civil Supply & Consumer Affairs and Revenue & Rehabilitation Department. In some of the cases where notices had been ordered, replies have also been filed, and in many cases, notices have not been ordered, since the issue in the first place is (i) the efficacy of resort to a public law remedy for recovery of monies for the works done and for liability admitted and (ii) for consideration of the extent of judicial review that is possible to ensure that there is some system put in place so that the court is not vexed with a genre of litigation that involves no resolution of dispute by the court but the court is used as a conduit to transfer the contractors' representations to the Government to release the amounts due to them. Here in this kind of an exercise, the court's time and resources are spent which it could ill-afford. The high volume of institution of cases itself can never be a subject of resentment. On the other hand, it must be seen as shot in the arm of institution that still evokes the confidence of public that their grievances will be redressed on the court's imprimatur. It is most desirable that such cases are worthy of court's effort that undertakes forensic skills of reasoning than merely deflecting all petitions to be duly considered by some other authority. III. Writ remedy for claims simpliciter for payment for works done as per contract: Examination of case law
(3.) The issue of employing remedy for recovery of monies through writ petitions should be seen in the context of whether there is any arbitrary or discriminatory act that could give rise to violation of Art 14 of the Constitution. A simple action for recovery of money under a contract against the government cannot normally lie. In Hindustan Sugar Mills Versus State of Rajasthan, 1981 AIR(SC) 1681 there was a contractual term to reimburse the tax liability suffered by the private party for sale of cement effected to the government. On a review petition in proceedings that emanated through a writ petition, the Court allowed the amount to be paid by the State when it was not done. The question itself was not whether writ remedy was available in a direct way but the denial of entitlement was found as a justifying circumstance to intervene. In Mahabir Auto Sto res Versus IOC, 1990 3 SCC 752, the issue put to test in a writ petition was the tenability of state action in stopping abruptly supplies of oil by IOC to a contracting party. The defence of impermissibility of writ petition was repulsed on a reasoning that the state action that was arbitrary was liable for interference under Art 14. The issue again was not directly a claim for recovery of money under a contract. If the state action was arbitrary, no matter the subject was a contractual obligation, it was still capable of redressal through a writ petition. In Dwarkadas Marfatia and sons Versus Port of Bombay, 1989 3 SCC 293, the court considered the effect of exemption of the state from the purview of rent control legislations but held all the same that an action for eviction by the state must be reasonable and not whimsical and stand the test of scrutiny under Art 14.;