LexSTATE OF KERALA & ORS. versus M.K.JOSE
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[2015]9S.C.R.17 STATE OF KERALA & ORS. A v. M.K.JOSE (Civil Appeal No.6086 of 2015) B AUGUST 14, 2015 [DIPAK MISRA AND PRAFULLA C. PANT, JJ.] Constitution of India, 1950 - Art. 226 - Power under - Exercise of, in contractual matter by Appellate Bench in intra- c court appeal - Termination of contract entrusted by Government Department to the contractor- Challenge to, in writ petition - Single Judge of High Court refused to interfere - In appeal, the Division Bench appointed advocates as Commissioners and on basis of the report submitted by them D held that the order of termination was passed on erroneous facts inasmuch as the competent authority opined that more than 50% of the work remained to be done and thus, quashed the order of termination of contract - On appeal held: Writ court should ordinarily not entertain a writ petition, if there is E a breach of contract involving disputed questions of fact - On facts, factual disputes were involved - High Court appointed Commissioners to collect the evidence, accepted the same without calling for objections from the contractor F and quashed the order of termination of contract- Procedure adopted by High Court is quite unknown to exercise of powers u/Article 226 in a contractual matter-Appellate Bench should have applied more restraint and proceeded in accordance with law instead of making a roving enquiry- Such a step is G impermissible and does not subserves any public interest - Order passed by the Appellate Bench is set aside . • Allowing the appeal, the Court HELD: 1.1 A writ court should ordinarily not entertain H .. 17 18 SUPREME COURT REPORTS [2015) 9 S.C.R. A a writ petition, if there is a breach of contract involving disputed questions of fact. The instant case clearly indicates that the factual disputes are involved. [Para 13] [27-C-D] B 1.2 The respondent has been invoking the jurisdiction of the High Court under Article 226 of the Constitution on various occasions challenging every action which pertain to extension of time, denial of revised estimate by the State Government and many C other facets of that nature and the High Court, has been generously passing orders for consideration by the appropriate authority, for grant of opportunity of being heard to the contractor and to consider his representation in accordance with law. This kind of orders D in a contractual matter is ill-conceived. They not only convert the controversy to a disturbing labyrinth, but encourage frivolous litigation. The competent authority might have mentioned that more than 50% work remained to be done but that should not have prompted E the Appellate Bench hearing the intra-court appeal to appoint a Commission of two Advocates and granting them liberty to take assistance of a competent Engineer. As the report would show, the Commission of two. F Advocates have taken assistance of a retired Assistant Executive Engineer and submitted the report. Though, counsel for the State had not objected to the same, yet this Court fails to understand how a writ jurisdiction can be extended to cause a roving enquiry through a G Commission and rely on the facts collected without granting opportunity to the State to file objections to the same and in the ultimate eventuate, cancel the order of termination of contract. What precisely was the quantum of work done and whether there had been a breach by H the owner or the contractor, are required to be gone into .. -· • STATE OF KERALA & ORS. v. M. K. JOSE 19 by the appropriate legal forum. [Para 12) [26-E-H; 27-A- A CJ 1.3 Under what circumstances contractual claim or challenge to violation of contract can be entertained by a writ court, depends upon facts of each case.· If the B materials that come on record from which it is clearly evincible, the writ court may exercise the power of judicial review but, a pregnant one, in the case at hand, the High Court appointed a Commission to collect the evidence, accepted the same without calling for objections from C the respondent and quashed the order of termination of contract. The procedure adopted by the High Court, is quite unknown to exercise of powers under Article 226 in a contractual matter. The appointment of Committee in a Public Interest Litigation to assist the Court or to D find out certain facts is appreciated. Such an exercise is meant for public good and in public interest. For example, ~hen an issue
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