Thus, I am not in a position to agree that merely issuance of a notice by a Coordinate Bench, under which provision of law, can be considered to be a binding precedent as it does not lay down any proposition of law to be followed in future. Question of judicial discipline will arise when a decision is rendered by a
forum of superior or concurrent jurisdiction while adjudicating the rights of the parties to a lis embodying a declaration of law. I do not see any declaration of law in the discretion of a Coordinate Bench to issue notice in the matter.
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WRIT PETITION No. 21169 of 2022
M/S KESHAV KANSHKAR Vs THE PRINCIPAL SECRETARY DEPARTMENT OF ENERGY MANTRALAYA VALLABH BHAWAN
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
Dated: 20th OF SEPTEMBER, 2022
Petitioner an Electrical Contractor has filed this writ petition under Article
226 of the Constitution of India claiming issuance of writ in the nature of
mandamus directing the respondents especially respondent No.3 to release the
payment of the petitioner for the work carried out by the petitioner under
'Sobhagya Yojna Scheme' under which he had carried out work of supply of
material, survey, installation, testing and commissioning of 11 KV line, 11/4 KV
distribution transformers and LT line for un-electrified household in terms of the
NIT dated 23.10.2018.
It is submitted that as per Clause 6 of the NIT defect liability period was
12 months from the date of taking over/completion of facilities or any part
thereof in case of 11 KV line and LT line and 24 months for distribution
transformers but instead of making payment respondents have issued recovery
notice dated 13.12.2021 beyond the period of defect liability.
Learned counsel for the petitioner has taken this Court through order
dated 22.12.2021 passed in W.P. No.28386/2021 (Annexure P-4) in which as an
interim measure, the effect and operation of the order dated13.12.2021
(Annexure P-1) was stayed.
It is also submitted that under similar facts and circumstances a
Coordinate Bench has issued notices in W.P. No.20515/2022 and W.P.
No.20024/2022. Placing reliance on the order of Hon'ble Division Bench in
W.A. No.880/2022 where Hon'ble Division Bench has held that on the ground
of parity, the appellant too would be entitled to a similar interim relief. When it is
noted even by the learned Singh Judge that there have been four cases in which
interim relief has been granted, necessarily the appellant would also be entitled
to the same. To deny him the interim relief only because of the fact that the
matter requires to be heard finally in our prima facie view may not be
appropriate.
Placing reliance on this judgment it is submitted that since Coordinate Bench has issued notices in two cases petitioner is entitled to issuance of notice in the present case as a matter of right.
'Precedent', refers to a court decision that is considered as authority for
deciding subsequent cases involving identical or similar facts, or similar issues.
'Precedent', is incorporated into the doctrine of 'stare decisis', and requires
courts to apply the law in the same manner to cases with the same facts.
'Judicial precedent', is the source of law where past decisions create law
for Judges to refer back to for guidance in future cases. Meaning of doctrine of
"stare decisis" to "stand by decided matters".
Thus, I am not in a position to agree that merely issuance of a notice by a Coordinate Bench, under which provision of law, can be considered to be a binding precedent as it does not lay down any proposition of law to be followed in future. Question of judicial discipline will arise when a decision is rendered by a
forum of superior or concurrent jurisdiction while adjudicating the rights of the parties to a lis embodying a declaration of law. I do not see any declaration of law in the discretion of a Coordinate Bench to issue notice in the matter.
As far as order dated 22.02.2021 is concerned. A perusal of the present
writ petition reveals that under Point No.8, dealing with interim relief, if prayed
for, petitioner has mentioned nil. Thus it is evident that when petitioner himself
is not praying interim relief in the present petition he is not entitled to seek any
parity with the orders of Coordinate Bench passed in W.P. No.28386/2021.
Issue involved is that whether in a contractual manner there exists an
agreement which has not been brought on record by the petitioner and
admittedly there is a pleading that there are disputes between the petitioner and the respondents in regard to payment of dues, inasmuch as, respondents have
issued a recovery notice against the petitioner, whether writ can be issued in a
matter involving disputed questions of fact.
Aforesaid question has been answered by the Hon'ble Supreme Court in
Noble Resources Ltd. Vs. State of Orissa and Another, (2006) 10 SCC
236, wherein Hon'ble Supreme Court has held that a petition involving disputed
questions of fact would not ordinarily lie and in that view of the mater the High
Court rightly refused to exercise its extra ordinary jurisdiction. It is further
observed that a decision is taken for business purposes, the Courts should not
readily infer arbitrariness on the part of the State. It is further held that if an
action on the part of the State is violative the equality clause contained in Article
14 of the Constitution of India, a writ petition would be maintainable even in the
contractual field. A distinction indisputably must be made between a matter
which is at the threshold of a contract and a breach of contract; whereas in the
former the court's scrutiny would be more intrusive, in the latter the court may
not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is
found to be violative of Article 14 of the Constitution.
In M/s Radhakrishna Agarwal Vs. State of Bihar, (1977) 3 SCC
457, it is held that in case of enforcement of contractual rights and liabilities the
normal remedy of filing a civil suit is available to the aggrieved party and,
therefore, the High Court will not exercise its prerogative writ jurisdiction to
enforce such contractual obligation. In M/s Radhakrishna Agarwal (supra) it
is further held that a question of the distinction between an administrative and
quasi-judicial decision can only arise in the exercise of powers under statutory
provisions. Rules of natural justice are attached to the performance of certain
functions regulated by statutes or rules made thereunder involving decisions
affecting rights of parties. When a contract is sought to be terminated by the
Officers of the State, purporting to act under the terms of an agreement between
parties, such action is not taken in purported exercise of a statutory power at
all. The limitations imposed by rules of natural justice cannot operate upon
powers which are governed by the terms of an agreement exclusively.
Thus in view of settled legal position, I am of the view that the petitioner
is not even entitled to admission of this petition as issuance of notice being not
a binding precedent applicable to invoke doctrine of 'stare decisis', and the
order passed by the Hon'ble Division Bench being in different arena, no
indulgence is required as petitioner has an alternative remedy of approaching the
civil court if there is no arbitration clause in the agreement and if there is an
arbitration clause then he has a duty to approach the arbitrator in terms of the
arbitration clause in the agreement.
Accordingly, this petition fails and is hereby dismissed.
Tabish
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