Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 11 September, 2012
+ LPA No. 560/2012
% RUCHIKA YADAV & ORS. ....Appellants
Through: Appellant No.1 in person.
Versus
PANDIT DEENDAYAL UPADHYAYA INSTITUTE
FOR PHYSICALLY HANDICAPPED & ANR .... Respondents
Through: Mr. Rajiv Bansal, Adv. for R-1.
Mr. Mohinder J.S. Rupal, Adv. for
R-2.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
rd
1. This Intra-Court appeal impugns the judgment dated 23 March,
2012 of the learned Single Judge in W.P.(C) No.240/2010 preferred by the
appellants. Though the said writ petition was preferred seeking several
reliefs but the judgment records (and which aspect is not disputed by the
appellants) that other reliefs claimed in the petition stood granted to the
appellants and thus did not survive for adjudication and the writ petition
survived only qua the claim of damages. In so far as the claim for damages
is concerned, the learned Single Judge has held that the same was not
warranted as the appellants had failed to make out a clear case of breach of
LPA No.560/2012 Page 1 of 13
fundamental rights, which could be stated to have resulted in the sufferance
of damages. It was further observed that the appellants had not made
specific averments and not placed documents in support of their claim on
record; in view of the denial by the respondents, several disputed questions
of fact arose and the remedy under Article 226 of the Constitution of India
was not a proper remedy. The writ petition qua the claim for damages was
thus dismissed, granting liberty to the appellants to agitate their claims in
appropriate civil proceedings, if so advised.
2. The three appellants took admission in the year 2004 in the Bachelor
of Prosthetics & Orthotics course of the respondent no.1 Institute. The said
course was of five years duration, culminating in the year 2009. The claim
of the appellants for damages was predicated on the respondent no.1
Institute not declaring the result of the three appellants along with the result
rd
of their other batch mates declared on 3 September, 2009 and withholding
st
the same till 1 February, 2010 when it was ultimately declared. While
compensation for mental harassment and agony and academic loss as well
as financial loss owing to withholding of the result was claimed by all the
appellants, the appellant no.2 Shri Chandan Kumar Chandan had also
claimed compensation for academic loss suffered on account of being not
LPA No.560/2012 Page 2 of 13
able to take admission in Master of International Business with Jamia Milia
Islamia, New Delhi for the reason of such withholding of result.
3. The respondent no.1 Institute contested the writ petition pleading, that
it is an Autonomous Body under the administrative and financial control of
Ministry of Social Justice and Empowerment, Govt. of India; that the
rd
appellants interrupted the examination being conducted on 23 August,
2008 and used un-parliamentary language and behaved in a manner to divert
the attention of the examiners and secure marks by unfair means and
methods and threatened the invigilators; that an inquiry was ordered and
intimation thereof also sent to the respondent no.2 University of Delhi;
however pending inquiry, the appellants were allowed to continue with their
course; the appellants however did not mend their ways and continued to
burden the authorities of the respondent no.1 Institute by filing a large
number of applications under the RTI Act on one pretext or the other and
preferred appeals against the orders of the Public Information Officer of the
respondent no.1 Institute and thereafter writ petitions in this Court; that the
other students of the respondent no.1 Institute had also complained against
the appellants; that the appellants abstained from the inquiry on one pretext
or the other and which resulted in hearing after hearing being given to the
LPA No.560/2012 Page 3 of 13
appellants; the proceedings of the inquiry were also delayed on account of
st
superannuation on 31 December, 2009 of one of the members of the
Inquiry Committee and the Committee therefore being required to be re-
th
constituted; that during the meeting of the Inquiry Committee on 18
January, 2010, finding that the matter had been disproportionately delayed
and the Inquiry Committee could not arrive at any concrete decision due to
want of statement of the complainants / students who were reluctant to
participate in the Inquiry, it was unanimously agreed by the Inquiry
Committee that the matter should be disposed of without any attribution of
guilt/wrong doing to any of the students or faculty members and it was
suggested that the respondent no.1 Institute may take a decision in view of
the said facts; that the final result of the appellants had been withheld for the
th
said reason and upon receipt of the report dated 18 January, 2010 of the
st
Inquiry Committee, the final result of the appellants was declared on 1
February, 2010 as aforesaid.
4. The appellants attribute mala fides , fraud, conspiracy and fabrication
of documents to the respondent no.1 Institute; some of the incidents cited in
rd
the memorandum of appeal are of even prior to the incident aforesaid of 23
August, 2008 and are not found to be relevant qua the claim of damages and
LPA No.560/2012 Page 4 of 13
as such need is not felt to discuss the same here. The appellants else plead
that more than 20 versions had been fabricated by the respondent no.1
rd
Institute of the incident of 23 August, 2008; that the principles of natural
justice have not been complied with; that officials against whom the
appellants had earlier complained were members of the Inquiry Committee;
that the complaint of the incident was made to the respondent no.2
th
University of Delhi only on 19 August, 2009; explanations of external
and internal examiners were recorded after 20 days of the incident and no
complaint had been made by them on their own; that the examiners even in
their explanation did not mention the names of the appellants and did not
produce any material evidence; that decision to call the appellants for
st
hearing before the Inquiry Committee was taken on 21 August, 2009 but
th
the memorandum in this regard was prepared on 19 August, 2009; that
several other documents also have been created in back date; inconsistencies
are pointed out in the various documents; inconsistencies are also pointed
out between the documents and the file notings obtained by the appellants
through the medium of RTI. The appellants in the grounds of appeal have
urged that the learned Single Judge failed to take on record documents
purported to be handed over to him at the time of hearing and which are
LPA No.560/2012 Page 5 of 13
filed with this appeal along with an application and which show that the
appellant no.2 had received calls in the Academic Year 2010 from Jamia
Milia Islamia University, IIM Indore, Sri Ram College of Commerce and
Indian Institute of Forest Management, Bhopal and all of which he could not
avail of for the reason of his result having been withheld. It is also urged
that the learned Single Judge has not given due regard to the appellants
no.1&3 being females and the appellant no.2 being physically challenged. It
is yet further urged that the respondent no.1 Institute along with its counter
rd
affidavit had not produced any documents to establish the incident of 23
August, 2008.
5. The learned Single Judge in the impugned judgment has referred to
(i) Smt Nilabati Behera alias Lalita Behera Vs. State of Orissa (1993) 2
SCC 746; (ii) Rudul Shah Vs. State of Bihar AIR 1983 SC 1086; (iii)
Chairman, Grid Corporation of Orissa Ltd. (Gridco) Vs. Sukamani Das
(Smt.) (1999) 7 SCC 298; (vi) Tamil Nadu Electricity Board Vs. Sumathi
(2000) 4 SCC 543; (v) Mr. Gatakala Venkateswarlu Vs. Union of India
128 (2006) DLT 1; and, (vi) S.P.S Rathore Vs. State of Haryana , (2005) 10
SCC 1 to conclude that damages cannot be awarded to the appellants in writ
proceedings.
LPA No.560/2012 Page 6 of 13
6. We have heard the appellant no.2 who has appeared in person as well
as the counsels for the respondents who appeared on advance notice. The
th
appellant no.2 has drawn our attention to the order dated 20 May, 2010 of
the learned Single Judge in the writ proceedings to contend that
notwithstanding the other reliefs clamed in the writ petition having not
survived, the writ petition was proceeded with on the aspect of
th
compensation. He has next invited our attention to the letter dated 10
March, 2011 of the Shi Ram College of Commerce inviting him for Group
Discussion and Personal Interview for admission to PG Diploma in Global
nd
Business Operations 2010-2012 batch on 2 April, 2010. Attention is also
st
invited to the memorandum dated 21 August, 2009 issued to the three
th
appellants calling them to appear before the Inquiry Committee on 25
th
August, 2009. From the letter dated 10 December, 2008 of the Librarian /
PIO of the respondent no.1 Institute, it is shown that the Supdt. Examination
had refused to disclose the names of the examiners of the examination held
rd
on 23 August, 2008. Attention is next invited to the memorandum dated
th th
16 /25 November, 2009 calling the appellants to appear before the Inquiry
th
Committee on 27 November, 2009. Inconsistency therewith is shown from
th
the minutes dated 10 September, 2009 of the meeting of the Inquiry
LPA No.560/2012 Page 7 of 13
th
Committee held on 25 August, 2009 desiring the appearance of the
appellants before the Inquiry Committee. Attention is also invited to the
th
letter dated 5 September, 2008 of a student to point out the inconsistencies.
The appellant no.2 has also cited before us Municipal Corporation of Delhi
Vs. Association of Victims of Uphaar Tragedy AIR 2012 SC 100 and
th
judgment dated 7 January, 2011 of Division Bench of the Madras High
Court in Writ Appeal No.2240/2010 titled Minor S. Kiruthika Vs. State of
Tamil Nadu . He has also handed over a note of judgments pertaining to
violation of Article 21, principles of natural justice and other fundamental
rights.
7. On the contrary, the counsel for the respondent no.1 Institute has
highlighted the non-participation by the appellants before the Inquiry
Committee. He has further contended that the appellants even if deprived of
admission in the year 2010, have not been able to secure admission in the
subsequent years and which demonstrates that they have not suffered any
loss and thus the question of awarding them any damages does not arise.
8. We have bestowed our due consideration to the matter in controversy
and since the appellants have filed and pursued the appeal in person, also
gone through the entire record carefully but are unable to take a view
LPA No.560/2012 Page 8 of 13
different from that taken by the learned Single Judge. We may, besides the
judgment already noticed by the learned Single Judge, also refer to the
recent dicta of the Apex Court in Godavari Sugar Mills Ltd. Vs. State of
Maharashtra 2011 (2) SCC 439 after a consideration of the entire case law
including Suganmal Vs. State of Madhya Pradesh AIR 1965 SC 1741,
U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. 2001 (2) SCC
549 and ABL International Ltd. Vs. Export Credit Guarantee Corporation
of India 2004 (3) SCC 553, making the legal position clear as under:-
(i) Normally, a petition under Article 226 of the Constitution of
India will not be entertained to enforce a civil liability arising
out of a breach of contract or a tort to pay an amount of money
due to the claimants. The aggrieved party will have to agitate
the question in a civil suit. But an order for payment of money
may be made in a writ proceeding, in enforcement of statutory
functions of the State or its officers;
(ii) If a right has been infringed—whether a fundamental right or a
statutory right and the aggrieved party comes to the Court for
enforcement of the right, it will not be giving complete relief if
the Court merely declares the existence of such right or the fact
LPA No.560/2012 Page 9 of 13
that existing right has been infringed. The High Court, while
enforcing fundamental or statutory rights, has the power to give
consequential relief by ordering payment of money realized by
the Government without the authority of law;
(iii) A petition for issue of writ of mandamus will not normally be
entertained for the purpose of merely ordering a refund of
money, to the return of which the petitioner claims a right. The
aggrieved party seeking refund has to approach the Civil Court
for claiming the amount, though the High Courts have the
power to pass appropriate orders in the exercise of powers
conferred under Article 226 for payment of money;
(iv) There is a distinction between cases where a claimant
approaches the High Court seeking the relief of obtaining only
refund and those where refund is sought as a consequential
relief after striking down the order of assessment etc. While a
petition praying for mere issue of writ of mandamus to the
State to refund the money alleged to have been illegally
collected is not ordinarily maintainable, if the allegation is that
the assessment was without a jurisdiction and the tax collected
LPA No.560/2012 Page 10 of 13
was without authority of law and therefore the respondents had
no authority to retain the money collected without any
authority of law, the High Court has the power to direct refund
in a writ petition;
(v) It is one thing to say that the High Court has no power under
Article 226 to issue a writ of mandamus for making refund of
the money illegally collected. It is yet another thing to say that
such power can be exercised sparingly depending on facts and
circumstances of each case. For instance, where the facts are
not in dispute, where the collection of money was without
authority of law, there is no good reason to deny a relief of
refund to the citizens;
(vi) Where the lis has a public law character or involves a question
arising out of public law functions on the part of the State or its
authorities, access to justice by way of a public law remedy
will not be denied.
9. Applying the aforesaid law, there is no way that the writ petition in
the present case can be said to be maintainable. It may also be noticed that
there were hardly any averments in the writ petition to which counter
LPA No.560/2012 Page 11 of 13
affidavit had been filed by the respondents and most of the other averments
were made in the rejoinder and additional affidavits with documents filed by
the appellants before the learned Single Judge and to which the respondents
had no occasion to respond. We however, find that even if such an
opportunity were to be given to the respondents, the nature of the dispute is
such that the question of award of damages in writ jurisdiction does not
arise. It is also worth mentioning that though mala fides , fabrication, fraud
are alleged but the averments are generally against the respondent no.1
Institute without naming any particular staff member or teacher.
10. Even otherwise the allegation of mala fide is also a question of fact,
which cannot be adjudicated in writ jurisdiction. It was held in DD Suri Vs.
A.K. Barren (1970) 3 SCC 313 that even where substance in the allegation
of mala fide is found, the proper course in a given case may still be to seek
relief by way of a suit if several disputed questions of fact are required to be
adjudicated.
11. Recently, the Apex Court in Kisan Sahkari Chini Mills Ltd. Vs.
Vardan Linkers AIR 2008 SC 2160 also reiterated that public law remedy
under Article 226 of the Constitution of India is not available to seek
damages for breach of contract or specific performance of contract unless
LPA No.560/2012 Page 12 of 13
the contractual dispute has a public law element. Reference may also be
made to Binny Ltd. Vs. V. Sadasivan (2005) 6 SCC 657 where the Apex
Court held that even in the matter of termination of employment, no public
law element is involved and the remedy of the employees is under the civil
or labour law only. It was further held that the powers under Article 226 are
to be exercised by applying the Constitutional provisions and judicial
guidelines and violation, if any of the fundamental rights and the Court
would be reluctant to exercise the power of judicial review in rights on the
basis of contracts. It was further held that a contract would not become
statutory simply because it has been awarded by a statutory body.
12. We therefore do not find any merit in this appeal and dismiss the
same.
No costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
SEPTEMBER 11, 2012
pp..
LPA No.560/2012 Page 13 of 13
th
Date of decision: 11 September, 2012
+ LPA No. 560/2012
% RUCHIKA YADAV & ORS. ....Appellants
Through: Appellant No.1 in person.
Versus
PANDIT DEENDAYAL UPADHYAYA INSTITUTE
FOR PHYSICALLY HANDICAPPED & ANR .... Respondents
Through: Mr. Rajiv Bansal, Adv. for R-1.
Mr. Mohinder J.S. Rupal, Adv. for
R-2.
CORAM :-
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
rd
1. This Intra-Court appeal impugns the judgment dated 23 March,
2012 of the learned Single Judge in W.P.(C) No.240/2010 preferred by the
appellants. Though the said writ petition was preferred seeking several
reliefs but the judgment records (and which aspect is not disputed by the
appellants) that other reliefs claimed in the petition stood granted to the
appellants and thus did not survive for adjudication and the writ petition
survived only qua the claim of damages. In so far as the claim for damages
is concerned, the learned Single Judge has held that the same was not
warranted as the appellants had failed to make out a clear case of breach of
LPA No.560/2012 Page 1 of 13
fundamental rights, which could be stated to have resulted in the sufferance
of damages. It was further observed that the appellants had not made
specific averments and not placed documents in support of their claim on
record; in view of the denial by the respondents, several disputed questions
of fact arose and the remedy under Article 226 of the Constitution of India
was not a proper remedy. The writ petition qua the claim for damages was
thus dismissed, granting liberty to the appellants to agitate their claims in
appropriate civil proceedings, if so advised.
2. The three appellants took admission in the year 2004 in the Bachelor
of Prosthetics & Orthotics course of the respondent no.1 Institute. The said
course was of five years duration, culminating in the year 2009. The claim
of the appellants for damages was predicated on the respondent no.1
Institute not declaring the result of the three appellants along with the result
rd
of their other batch mates declared on 3 September, 2009 and withholding
st
the same till 1 February, 2010 when it was ultimately declared. While
compensation for mental harassment and agony and academic loss as well
as financial loss owing to withholding of the result was claimed by all the
appellants, the appellant no.2 Shri Chandan Kumar Chandan had also
claimed compensation for academic loss suffered on account of being not
LPA No.560/2012 Page 2 of 13
able to take admission in Master of International Business with Jamia Milia
Islamia, New Delhi for the reason of such withholding of result.
3. The respondent no.1 Institute contested the writ petition pleading, that
it is an Autonomous Body under the administrative and financial control of
Ministry of Social Justice and Empowerment, Govt. of India; that the
rd
appellants interrupted the examination being conducted on 23 August,
2008 and used un-parliamentary language and behaved in a manner to divert
the attention of the examiners and secure marks by unfair means and
methods and threatened the invigilators; that an inquiry was ordered and
intimation thereof also sent to the respondent no.2 University of Delhi;
however pending inquiry, the appellants were allowed to continue with their
course; the appellants however did not mend their ways and continued to
burden the authorities of the respondent no.1 Institute by filing a large
number of applications under the RTI Act on one pretext or the other and
preferred appeals against the orders of the Public Information Officer of the
respondent no.1 Institute and thereafter writ petitions in this Court; that the
other students of the respondent no.1 Institute had also complained against
the appellants; that the appellants abstained from the inquiry on one pretext
or the other and which resulted in hearing after hearing being given to the
LPA No.560/2012 Page 3 of 13
appellants; the proceedings of the inquiry were also delayed on account of
st
superannuation on 31 December, 2009 of one of the members of the
Inquiry Committee and the Committee therefore being required to be re-
th
constituted; that during the meeting of the Inquiry Committee on 18
January, 2010, finding that the matter had been disproportionately delayed
and the Inquiry Committee could not arrive at any concrete decision due to
want of statement of the complainants / students who were reluctant to
participate in the Inquiry, it was unanimously agreed by the Inquiry
Committee that the matter should be disposed of without any attribution of
guilt/wrong doing to any of the students or faculty members and it was
suggested that the respondent no.1 Institute may take a decision in view of
the said facts; that the final result of the appellants had been withheld for the
th
said reason and upon receipt of the report dated 18 January, 2010 of the
st
Inquiry Committee, the final result of the appellants was declared on 1
February, 2010 as aforesaid.
4. The appellants attribute mala fides , fraud, conspiracy and fabrication
of documents to the respondent no.1 Institute; some of the incidents cited in
rd
the memorandum of appeal are of even prior to the incident aforesaid of 23
August, 2008 and are not found to be relevant qua the claim of damages and
LPA No.560/2012 Page 4 of 13
as such need is not felt to discuss the same here. The appellants else plead
that more than 20 versions had been fabricated by the respondent no.1
rd
Institute of the incident of 23 August, 2008; that the principles of natural
justice have not been complied with; that officials against whom the
appellants had earlier complained were members of the Inquiry Committee;
that the complaint of the incident was made to the respondent no.2
th
University of Delhi only on 19 August, 2009; explanations of external
and internal examiners were recorded after 20 days of the incident and no
complaint had been made by them on their own; that the examiners even in
their explanation did not mention the names of the appellants and did not
produce any material evidence; that decision to call the appellants for
st
hearing before the Inquiry Committee was taken on 21 August, 2009 but
th
the memorandum in this regard was prepared on 19 August, 2009; that
several other documents also have been created in back date; inconsistencies
are pointed out in the various documents; inconsistencies are also pointed
out between the documents and the file notings obtained by the appellants
through the medium of RTI. The appellants in the grounds of appeal have
urged that the learned Single Judge failed to take on record documents
purported to be handed over to him at the time of hearing and which are
LPA No.560/2012 Page 5 of 13
filed with this appeal along with an application and which show that the
appellant no.2 had received calls in the Academic Year 2010 from Jamia
Milia Islamia University, IIM Indore, Sri Ram College of Commerce and
Indian Institute of Forest Management, Bhopal and all of which he could not
avail of for the reason of his result having been withheld. It is also urged
that the learned Single Judge has not given due regard to the appellants
no.1&3 being females and the appellant no.2 being physically challenged. It
is yet further urged that the respondent no.1 Institute along with its counter
rd
affidavit had not produced any documents to establish the incident of 23
August, 2008.
5. The learned Single Judge in the impugned judgment has referred to
(i) Smt Nilabati Behera alias Lalita Behera Vs. State of Orissa (1993) 2
SCC 746; (ii) Rudul Shah Vs. State of Bihar AIR 1983 SC 1086; (iii)
Chairman, Grid Corporation of Orissa Ltd. (Gridco) Vs. Sukamani Das
(Smt.) (1999) 7 SCC 298; (vi) Tamil Nadu Electricity Board Vs. Sumathi
(2000) 4 SCC 543; (v) Mr. Gatakala Venkateswarlu Vs. Union of India
128 (2006) DLT 1; and, (vi) S.P.S Rathore Vs. State of Haryana , (2005) 10
SCC 1 to conclude that damages cannot be awarded to the appellants in writ
proceedings.
LPA No.560/2012 Page 6 of 13
6. We have heard the appellant no.2 who has appeared in person as well
as the counsels for the respondents who appeared on advance notice. The
th
appellant no.2 has drawn our attention to the order dated 20 May, 2010 of
the learned Single Judge in the writ proceedings to contend that
notwithstanding the other reliefs clamed in the writ petition having not
survived, the writ petition was proceeded with on the aspect of
th
compensation. He has next invited our attention to the letter dated 10
March, 2011 of the Shi Ram College of Commerce inviting him for Group
Discussion and Personal Interview for admission to PG Diploma in Global
nd
Business Operations 2010-2012 batch on 2 April, 2010. Attention is also
st
invited to the memorandum dated 21 August, 2009 issued to the three
th
appellants calling them to appear before the Inquiry Committee on 25
th
August, 2009. From the letter dated 10 December, 2008 of the Librarian /
PIO of the respondent no.1 Institute, it is shown that the Supdt. Examination
had refused to disclose the names of the examiners of the examination held
rd
on 23 August, 2008. Attention is next invited to the memorandum dated
th th
16 /25 November, 2009 calling the appellants to appear before the Inquiry
th
Committee on 27 November, 2009. Inconsistency therewith is shown from
th
the minutes dated 10 September, 2009 of the meeting of the Inquiry
LPA No.560/2012 Page 7 of 13
th
Committee held on 25 August, 2009 desiring the appearance of the
appellants before the Inquiry Committee. Attention is also invited to the
th
letter dated 5 September, 2008 of a student to point out the inconsistencies.
The appellant no.2 has also cited before us Municipal Corporation of Delhi
Vs. Association of Victims of Uphaar Tragedy AIR 2012 SC 100 and
th
judgment dated 7 January, 2011 of Division Bench of the Madras High
Court in Writ Appeal No.2240/2010 titled Minor S. Kiruthika Vs. State of
Tamil Nadu . He has also handed over a note of judgments pertaining to
violation of Article 21, principles of natural justice and other fundamental
rights.
7. On the contrary, the counsel for the respondent no.1 Institute has
highlighted the non-participation by the appellants before the Inquiry
Committee. He has further contended that the appellants even if deprived of
admission in the year 2010, have not been able to secure admission in the
subsequent years and which demonstrates that they have not suffered any
loss and thus the question of awarding them any damages does not arise.
8. We have bestowed our due consideration to the matter in controversy
and since the appellants have filed and pursued the appeal in person, also
gone through the entire record carefully but are unable to take a view
LPA No.560/2012 Page 8 of 13
different from that taken by the learned Single Judge. We may, besides the
judgment already noticed by the learned Single Judge, also refer to the
recent dicta of the Apex Court in Godavari Sugar Mills Ltd. Vs. State of
Maharashtra 2011 (2) SCC 439 after a consideration of the entire case law
including Suganmal Vs. State of Madhya Pradesh AIR 1965 SC 1741,
U.P. Pollution Control Board Vs. Kanoria Industrial Ltd. 2001 (2) SCC
549 and ABL International Ltd. Vs. Export Credit Guarantee Corporation
of India 2004 (3) SCC 553, making the legal position clear as under:-
(i) Normally, a petition under Article 226 of the Constitution of
India will not be entertained to enforce a civil liability arising
out of a breach of contract or a tort to pay an amount of money
due to the claimants. The aggrieved party will have to agitate
the question in a civil suit. But an order for payment of money
may be made in a writ proceeding, in enforcement of statutory
functions of the State or its officers;
(ii) If a right has been infringed—whether a fundamental right or a
statutory right and the aggrieved party comes to the Court for
enforcement of the right, it will not be giving complete relief if
the Court merely declares the existence of such right or the fact
LPA No.560/2012 Page 9 of 13
that existing right has been infringed. The High Court, while
enforcing fundamental or statutory rights, has the power to give
consequential relief by ordering payment of money realized by
the Government without the authority of law;
(iii) A petition for issue of writ of mandamus will not normally be
entertained for the purpose of merely ordering a refund of
money, to the return of which the petitioner claims a right. The
aggrieved party seeking refund has to approach the Civil Court
for claiming the amount, though the High Courts have the
power to pass appropriate orders in the exercise of powers
conferred under Article 226 for payment of money;
(iv) There is a distinction between cases where a claimant
approaches the High Court seeking the relief of obtaining only
refund and those where refund is sought as a consequential
relief after striking down the order of assessment etc. While a
petition praying for mere issue of writ of mandamus to the
State to refund the money alleged to have been illegally
collected is not ordinarily maintainable, if the allegation is that
the assessment was without a jurisdiction and the tax collected
LPA No.560/2012 Page 10 of 13
was without authority of law and therefore the respondents had
no authority to retain the money collected without any
authority of law, the High Court has the power to direct refund
in a writ petition;
(v) It is one thing to say that the High Court has no power under
Article 226 to issue a writ of mandamus for making refund of
the money illegally collected. It is yet another thing to say that
such power can be exercised sparingly depending on facts and
circumstances of each case. For instance, where the facts are
not in dispute, where the collection of money was without
authority of law, there is no good reason to deny a relief of
refund to the citizens;
(vi) Where the lis has a public law character or involves a question
arising out of public law functions on the part of the State or its
authorities, access to justice by way of a public law remedy
will not be denied.
9. Applying the aforesaid law, there is no way that the writ petition in
the present case can be said to be maintainable. It may also be noticed that
there were hardly any averments in the writ petition to which counter
LPA No.560/2012 Page 11 of 13
affidavit had been filed by the respondents and most of the other averments
were made in the rejoinder and additional affidavits with documents filed by
the appellants before the learned Single Judge and to which the respondents
had no occasion to respond. We however, find that even if such an
opportunity were to be given to the respondents, the nature of the dispute is
such that the question of award of damages in writ jurisdiction does not
arise. It is also worth mentioning that though mala fides , fabrication, fraud
are alleged but the averments are generally against the respondent no.1
Institute without naming any particular staff member or teacher.
10. Even otherwise the allegation of mala fide is also a question of fact,
which cannot be adjudicated in writ jurisdiction. It was held in DD Suri Vs.
A.K. Barren (1970) 3 SCC 313 that even where substance in the allegation
of mala fide is found, the proper course in a given case may still be to seek
relief by way of a suit if several disputed questions of fact are required to be
adjudicated.
11. Recently, the Apex Court in Kisan Sahkari Chini Mills Ltd. Vs.
Vardan Linkers AIR 2008 SC 2160 also reiterated that public law remedy
under Article 226 of the Constitution of India is not available to seek
damages for breach of contract or specific performance of contract unless
LPA No.560/2012 Page 12 of 13
the contractual dispute has a public law element. Reference may also be
made to Binny Ltd. Vs. V. Sadasivan (2005) 6 SCC 657 where the Apex
Court held that even in the matter of termination of employment, no public
law element is involved and the remedy of the employees is under the civil
or labour law only. It was further held that the powers under Article 226 are
to be exercised by applying the Constitutional provisions and judicial
guidelines and violation, if any of the fundamental rights and the Court
would be reluctant to exercise the power of judicial review in rights on the
basis of contracts. It was further held that a contract would not become
statutory simply because it has been awarded by a statutory body.
12. We therefore do not find any merit in this appeal and dismiss the
same.
No costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
SEPTEMBER 11, 2012
pp..
LPA No.560/2012 Page 13 of 13