STATE OF KERALA & ORS.versusM.K.JOSE

                           [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
     and quashed the order of termination of contract- Procedure          F
     adopted by High Court is quite unknown to exercise ofpowers
     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 arises whether in a particular State there
     are toilets for school children and there is an assertion
     by the State that there are good toilets, definitely the       E
     Court can appoint a Committee to verify the same. It is
     because the lis is not adversarial in nature. The same
     principle cannot be taken recourse to in respect of a
     contractual controversy. It is also surprising that the High   F
     Court has been entertaining series of writ petitions at
     the instance of the respondent, which is nothing but
     abuse of the process of extraordinary jurisdiction of the
     High Court. The Appellate Bench should have applied
     more restraint and proceeded in accordance with law            G
     instead of making a roving enquiry. Such a step is

-·   impermissible and by no stretch of imagination
     subserves any public interest. The judgment and the
     order passed by the Appellate Bench is set aside. [Paras
     20, 21) [34-E-H; 35-A-F]                                       H
 •

                                                                    •
20         SUPREME COURT REPORTS                 [2015] 9 S.C.R.


A      State of Bihar v. Jain Plastics and Chemicals Ltd. 2001
       (5) Suppl. SCR 313: (2002) 1 SCC 216; National
       Highways Authority of India v. Ganga Enterprises 2003
       (3) Suppl. SCR 114: (2003) 7 SCC 410; Gunwant Kaur
       v. Municipal Committee, Bhatinda (1969) 3 SCC 769;
B      ABL International Ltd. v. Export Credit Guarantee
       Corpn. of India Ltd. (2004) 3 SCC 553; Century Spg.
       and Mfg. Co. Ltd. v. Ulhasnagar Municipal Council 1970
       (2) SCR 854 : (1970) 1 SCC 582; Noble Resources
       Ltd. v. State of Orissa and Another 2006 (6) Suppl.
c      SCR 53: (2006) 10 SCC 236; Dwarkadas Marfatia &
       Sons v. Board of Trustees, Port of Bombay 198~ (2)
       SCR 751: (1989) 3 SCC 293; Mahabir Auto Stores v.
       Indian Oil Corp. 1990 (1) SCR 818 : (1990) 3 SCC 752;
       Jamshed Hormusji Wadia v. Board of Trustees, Port of
D
       Mumbai 2004 (1) SCR 483 : (2004) 3 SCC 214 -
       referred to.
                        Case Law Reference

E 2001 (5) Suppl. SCR 313         referred to.   Para 13
  2003 (3) Suppl. SCR 114         referred to.   Para 14
     (1969) 3 sec 769             referred to.   Para 15
     (2004) 3 sec 553             referred to.   Para16, 18, 20
     1970 (2) SCR 854             referred to.   Para 16
F
     2006 (6) Suppl. SCR 53       referred to.   Para 18
     1989 (2) SCR 751             referred to.   Para 18
     1990 (1) SCR 818             referred to.   Para 18
     2004 (1) SCR 483             referred to. .Para 18
G
          CIVIL APPELLATE JURISDICTION : Civil Appeal No.
     6086 of2015
                                                                   •
          From the Judgment and Order dated 24.02.2014 of the
     High Court of Kerala at Ernakulam in W.A. No. 1912 of 2013
H        Ramesh Babu M.R. for the Appellants.
                                                                   •
        STATE OF KERALA& ORS. v. M. K. JOSE                        21


    K. Parameshwar, Jawahar Jose, P. Vinay Kumar for the           A
Respondent.

     The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. The present appeal, by special             B
leave, assails the correctness of the judgment dated
24.02.2014 passed by the High Court of Kera la at Ernakularn
in W.A. No. 1912/2013 whereby the Appellate Bench has
reversed the decision of the learned Single Judge rendered
in W. P. (C) No. 22541 of 2013 whereunder he had declined to       c
interfere with the order of the Secretary, Public Works
Department, Road and Projects of the State terminating the
contract awarded to the respondent and forfeiting the security
deposit placed by the contractor for the work to the state and
further stating that the work had been put an end to at the cost   D
and risk of the contractor.                           ·

     2. Exposition of facts with essential details is imperative
to appreciate the controversy in proper perspective and also
to consider the manner in which the Appellate Bench has E
exercised the writ jurisdiction under Article 226 of the
Constitution in respect of a matter relating to termination of
contract. The respondef't was awarded the work, namely,
"Stimulus package-improvements to Kanriavam-ldumba-
Trikadaripoyil Road Km. 0/000 to 9/100 in Kannur District" and F
accordingly an agreement was executed between the parties
on 18.12.2010. Ttie site for the work was handed over to the
respondent on 27.12.2010 and the work was to be completed
within a period of 12 months. Thus, the work, as requisite,
under the terms of the contract was to be completed in all G
respects as on 26.12.2011. The respondent could not
complete the work in time and on a request being made, time
was initially extended up to 30.06.2012and thereafter further
extension was granted upto 31.03.2013.
                                                                 H
22        SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A      3.As is perceptible from the order of termination of the
  contract, despite issue of several notices and instructions, the
  contractor failed to complete the work even during the extended
  period. The Executive'Engineer of the Department issued a
  memorandum on 14.02.2013 stopping the work. As there was
B some deviation of work, the revised estimate was required to
  be done but the same was not sanctioned by the Government.
  At that juncture, the respondent preferred W.P.(C) No. 5672 of
  2012 seeking appropriate direction to the Government to pass
  orders sanctioning the revised estimate. The High Court
C disposed of the writ petition directing the Principal Secretary
  to take a decision on the proposal of revised estimate.
  Thereafter, the respondent filed a contempt petition which was
  eventually d rapped.

D       4. As the factual matrix would further unfurl, the respondent
  submitted a representation to the Government and thereafter
  filed W.P.(C) No. 23087 of2012. The High Court directed the.
  Principal Secretary, PWD to consider and pass orders on his
  representation. It is apt to note here that the respondent had
E filed series of writ petitions, namely, W.P.(C) No. 26075 of2012
  and W.P.(C) No. 5690 of2013 and the High Courtvide order
  dated 08.04.2013 in W.P.(C) No. 5690 of 2013, directed the
  Secretary, PWD to pass appropriate orders in accordance
F with law. Eventually, as has been stated earlier, the contract
  was terminated.

       5. The said order of termination was assailed in WP(C)
  No. 22541 of 2013. The learned Single Judge noted the facts
  and took note of prayer no. (c) which was for issue of a writ of
G mandamus or any other appropriate writ, order or direction
  directing the respondents to take steps for measurement of
  the work already completed by him and making corresponding
  entries in the measurement book. The said prayer was
H acceded to by the counsel for the State of Kerala and
       STATE OF KERALA & ORS. v. M. K. JOSE                     23
                 [DIPAK MISRA, J.]

accordingly the learned Single Judge directed measurement A
of the work to be completed effecting necessary entries in the
measurement book before finalization of the tender
proceedings, if any, in respect of balance work. The learned
Single Judge had also directed that the measurements should
take place after notice to the contractor.                     B

    6. The aforesaid order was assailed in the writ appeal.
When the appeal was listed for admission, the Appellate
Bench, on 17.12.2013, passed the following order:-
                                                                c
  "We heard the learned counsel for the appellant at length.
  Ext. P15 order shows that more than 50% of the work
  remains to be completed. The learned counsel for the
  appellant referred to paragraph 10 of the counter affidavit
  filed by the first respondent dated 15.3.2013 in W.P.(C)      o
  No.· 5690 of 2013 (another writ petition filed by the
  appellant) wherein it is stated that "over all 70% of total
  works completed so far". The learned counsel for the
  appellant submitted that nearly 90% of the work was over
  and the work could not be completed within the extended       E
  period since the Department did not fulfil certain
  mandatory requirements in order to complete the work
  and since a stop memo was issued even before the
  expiration of the extended period.
                                                                F
  2. Learned counsel for the appellant submitted that the
  appella_nt is prepared to take out a commission to
  substantiate the contention that 90% of the work is over.
  Learned Government pleader sought for a short time to
  get instructions. Since the matter is urgent and since the    G
  courts are going to be closed on 20.12.2013, we are
  inclined to grant only a day's time to get instructions on
  the prayer made by the appellant that a commissioner
  may be appointed."
                                                                H
24         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A         7. On the adjourned date, the counsel for the State
     submitted that the respondent had no objection for appointment
     of Commissioner. On the aforesaid basis, the         ·

     Division Bench appointed two Advocates as joint
B    commissioners to inspect the site and to submit the report in
     respect of the disputed questions mentioned in the order dated
     17.12.2013. Thereafter, the Court passed the following order:-
          .
       ''The Commissioners would be free to seek the help of a
c      competent Engineer for the purpose of enabling them to
       prepare a report which would throw light on the disputed
       question involved in the case. The appellant as well as
       respondents would provide all assistance to the
       Commissioners for execution of their work. The
D      Commissioners would be entitled to call for any record
       from the appellant as well as respondents 3 and 4 for the
       purpQse of executing the work entrusted to them."

      · 8. The Commission appointed by the Appellate Bench
E took assistance of one Retired Assistant Executive Engineer,
  PWD who submitted a report to the commissioners, which was
  annexed to the Commission's report. We need not refer to
  the report which has been reproduced by the impugned order.
  However, the Engineer who assisted the Commission, in his
F report under the heading 'Details of work done', has stated
  thus:-

       "Anyhow the contractor has executed a minimum amount ·
       of work so far up to the commission, inspection date of
G      3.1.2014 of Rs.2,27,90,383/- which is 72.24% of the
       revised estimate and 97.09% of the original work
       (Estimate PAC). There are some minor damages in the
       completed portion of BT surface and white topped portion
       (concrete road) and the general condition of the whole
H      work executed by the contractor is satisfactory. A detailed
       STATE OF KERALA & ORS. v. M. K. JOSE                    25
                 [DIPAK MISRA, J.]

  item wise statement is prepared and appended herewith        A
  for perusal as Annexure A."

      9. The Appellate Bench on the basis of the said report
came to hold that the order of termination was founded on
erroneous facts inasmuch as the competent authority had B
opined that more than 50% of the work remained to be done.
The Division Bench opining that as there was a factual defect,
which was evident from the commission's report, the order of
termination of contract was liable to be quashed and
accordingly axed the same. After quashing the same, the High C
Court directed the Superintending Engineer, PWD, (Roads
and Bridges) to consider and dispose of the matter afresh
after affording an opportunity to the contractor of being heard.
It also directed that the Commission's report and the
Engineer's report and the accounts shall be produced by the D
contractor before the competent authority who shall take the
same into account before taking final decision in the matter.
After so directing, the High Court eventually ruled that:

  "Since Exhibit P15 order is passed on· incorrect data        E
  and .since that data was found to be incorrect by
  appointing Joint Commissioners, we are of the view that
  the Government should bear the expenses of the
  Commissioners and expenses of the Engineer in
  submitting the reports. Before conducting a final hearing,   F
  a sum of Rs.40,000/- shall be paid by the first respondent
  to the appellanUwrit petitioner. Taking into account the
  work done by the Engineer, we think that an additional
  remuneration of Rs.5,000/- should be paid to the
  Engineer. The appellanUwrit petitioner shall pay the said    G
  amount of Rs.5,000/- to the Engineer within 15 days and
  proof thereof shall be produced by the appellant before
  this Court."

    10. We have heard Mr Ramesh Babu M.R., learned             H
26         SUPREME COURT REPORTS                    [2015] 9 S.C.R.


A    counsel for the appellants and Mr. K. Parmeshwar, learned
     counsel for the respondent.

        11. The thrust of the matter is whether the Appellate Bench
  in intra-court appeal arising from a petition under Article 226
B of the Constitution, should have carried out the exercise that it
  has done and eventually quashed the order terminating the
  contract by the competent authority of a Department on the
  ground that it was passed on erroneous facts, for the respondent
  contractor, as per the Commission's report, had done higher
C percentage of work. We would not like to comment anything
  on the order passed by the learned Single Judge as that was
  not challenged by the State before the Appellate Court in
  appeal. The learned Single Judge had directed measurement
  to be carried out prior to floating of tender for the balance work.
D That direction, as is evident, has been accepted by the State.

         12.As the factual narration would reveal, the respondent
  has been invoking the jurisdiction of the High Court under Article
  226 of the Constitution on various occasions challenging every
E action which pertain to extension of time, denial of revised
  estimate by the State Government and many other facets of
  that nature and the High Court, we must say, has been
  generously passing orders for consideration by the appropriate
  authority, for grant of opportunity of being heard to the contractor
F and to consider his representation in accordance with law. This
  kind of orders in a contractual matter, in our considered view,
  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%
G work remained to be done but that should not have prompted
  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
H show, the Co_mmission of two Advocates have taken
           STATE OF KERALA & ORS. v. M. K. JOSE                       27
                     [DIPAK MISRA, J.]

assistance of a retired Assistant Executive Engineer and A
submitted the report. Though, learned counsel forthe State
had not objected to the same, yet we really fail to fathom how
a writ jurisdiction can be extended to cause a roving enquiry
through a Commission and rely on the facts collected without
granting opportunity to the State to file objections to the same B
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 the owner or the
contractor, are required to be gone into by the appropriate
legal forum.                                                     C

      13. A writ court should ordinarily not entertain a writ
petition, if there is a breach of contract involving disputed
questions of fact. The present case clearly indicates that the
factual disputes are involved. In State of Bihar v. Jain              D
Plastics and Chemicals Ltd. 1 , a two-Judge Bench reiterating
the exercise of power under Article 226 of the Constitution in
respect of enforcement of contractual obligations has stated:-

    "lt is to be reiterated that writ petition under Article 226 is   E
    not the proper proceedings for adjudicating such
    disputes. Under the law, it was open to the respondent to
    approach the court of competent jurisdiction for
    appropriate relief for breach of contract. It is settled law
    that when an alternative and equally efficacious remedy           F
    is open to the litigant, he should be required to pursue
    that remedy and not invoke the writ jurisdiction of the High
    Court. Equally, the existence of alternative remedy does
    not affect the jurisdiction of the court to issue writ, but
    ordinarily that would be a good ground in refusing to             G
    exercise the discretion under Article 226."

       In the said case, it has been further observed:-
1
    (2002) 1 sec 21s                                                  H
28             SUPREME COURT REPORTS                      [2015] 9 S.C.R.


A          "It is true that many matters could be decided after
           referring to the contentions raised in the affidavits and
           counter-affidavits, but that would hardly be a ground for
           exercise of extraordinary jurisdiction under Article 226
           of the Constitution in case of alleged breach of contract.
B          Whether the alleged non-supply of road permits by the
           appellants would justify breach of contract by the
           respondent would depend upon facts and evidence and
           is not required to be decided or dealt with in a writ petition.
           Such seriously disputed questions or rival claims of the
c          parties with regard to breach of contract are to be
           investigated and determined on the basis of evidence
           which may be led by the parties in a properly instituted
           civil suit rather than by a court exercising prerogative of
           issuing writs."
D
              14.      - , In National Highways Authority of India v.
  Ganga Enterprises 2 , the respondent therein had filed a writ
  petition before the High Court for refund of the amount. The
   High Court posed two questions, namely, (a) whether the
E forfeiture of security deposit is without authority of law and
  without_ any binding contract between the parties and also
  contrary to Section 5 of the Contract Act; and (b) whether the
  writ petition is maintainable in a claim arising out of breach of
F contract. While dealing with the said issue, this Court opined
  that:-

          "It is settled law that disputes relating to contracts cannot
          be agitated under Article 226 of the Constitution of India.
          It has been so held in the cases of Kera/a SEB v. Kurien
G         E. Ka/athi/3, State of U.P v. Bridge & Roof Co. {India)
          Ltd. 4 and Bareilly Development Authority v. Ajai Pal
          Singh 5• This is settled law. The dispute in this case was
     2   (2003) 1 sec 410
H    3
         (2000) 6 sec 293
     4
         (1996) 6   sec 22
     5
         (1989) 2   sec 116
            STATE OF KERALA & ORS. v. M. K. JOSE                      29
                      [DIPAK MISRA, J.]

     regarding the terms of offer. They were thus contractual         A
     disputes in respect of which a writ court was notthe proper
     forum. Mr Dave, however, relied upon the cases of
     Verigamto Naveen v. Govt. ofA.P 6 and Harminder Singh
     Arora v. Union of lndia 7. These, however, are cases where
     the writ court was enforcing a statutory right or duty. These    B
     cases do not lay down that a writ court can interfere in a
     matter of contract only. Thus on the ground of
     maintainability the petition should have been dismissed".

      15. Having referred to the aforesaid decisions, it is C
obligatory on our part to refer to two other authorities of this
Court where it has been opined that under what circumstances
a disputed question of fact can be gone into. In Gunwant
Kaurv. Municipal Committee, Bhatinda 6 , it has been held
thus:-                                                           D

     "14. The High Court observed that they will not determine
     disputed question of fact in a writ petition. But what facts
     were in dispute and what were admitted could only be
     determined after an affidavit-in-reply was filed by the          E
     State. The High Court, however, proceeded to dismiss
     the petition in limine. The High Court is not deprived of
     its jurisdiction to entertain a petition under Article 226
     merely because in considering the petitioner's right to
     relief questions of fact may fall to be determined. In a         F
     petition under Article 226 the High Court has jurisdiction
     to try issues both of fact and law. Exercise of the
     jurisdiction is, it is true, discreticnary, but the discretion
     must be exercised on sound judicial principles. When
     the petition raises questions of fact of a complex nature,       G
     which may for their determination require oral evidence
     to be taken, and on that account the High Court is of the

6
    (2001) a sec 344
1
    ·(1986) 3 sec 247                                                 H
s (1969) 3 sec 769
30          SUPREME COURT REPORTS                        [2015) 9 S.C.R.


A       view that the dispute may not appropriately be tried in a
        writ petition, the High Court may decline to try a petition.
        Rejection of a petition in limine will normally be justified,
        where the High Court is of the view that the petition is
        frivolous or because of the nature of the claim made
B       dispute sought to be agitated, or that the petition against
        the party against whom relief is claimed is not
        maintainable or that the dispute raised thereby is such
        that it would be inappropriate to try it in the writ jurisdiction,
        or for analogous reasons.
c
        15. From the averments made in the petition filed by the
        appellants it is clear that in proof of a large number of
        allegations the appellants relied upon documentary
        evidence and the only matter in respect of which conflict
D       of facts may possibly arise related to the due publication
        of the notification under Section 4 by the Collector.

        16. In the present case, in our judgment, the High Court
       was not justified in dismissing the petition on the ground
E      that it will not determine disputed question of fact .. The
       High Court has jurisdiction to determine questions of fact,
       even if they are in dispute and the present, in our
       judgment, is a case in which in the interests of both the
       parties the High Court should have entertained the
F      petition and called for an affidavit-in-reply from the
       respondents, and should have proceeded to try the
       petition instead of relegating the appellants to a separate
       suit."

G                                                  [Emphasis added]

        16. In ABL International Ltd. v. Export Credit
     Guarantee Corpn. of India Ltd. 9 , a two-Judge Bench after
     referring to various judgments as well as the pronouncement
H    9 (2004) 3   sec 553
               STATE OF KERALA & ORS. v. M. K. JOSE                       31
                         [DIPAK MISRA, J.]

    in Gunwant Kaur (supra) and Century Spg. And Mfg. Co.                 A
    Ltd. v. Ulhasnagar Municipal Counci/1°, has held thus:-
         "19. Therefore, it is clear from the above enunciation of
         law tbat merely because one of the parties to the litigation
         raises a dispute in regard to the facts of the case, the         8
         court entertaining such petition under Article 226 of the
         Constitution is not always bound to rele.gate the parties
         to a suit. In the above case of Gunwant Kaurthis Court
         even went to the extent of holding that in a writ petition, if
         the facts require, even oral evidence can be taken. This         c
         clearly shows that in an appropriate case, the writ court
         has the jurisdiction to entertain a writ petition involving
         disputed questions of fact and there is no absolute bar
         for entertaining a writ petition even if the same arises out
         of a contractual obligation and/or invplves some disputed        D
         questions offact.
              )()()()()(             )()()()()(        )()()()()(


         27. From the above discussion of ours, the following legal
         principles emerge as to the maintainability of a writ            E
         petition:
         (a) In an appropriate case, a writ petition as against a
         State or an instrumentality of a State arising out of a
         contractual obligation is maintainable.
                                                                          F
         (b) Merely because some disputed questions of fact arise
         for consideration, same cannot be a ground to refuse to
         entertain a writ petition in all cases as a matter of rule.
         (c) A writ petition involving a consequential relief of
                                                                          G
         monetary claim is also maintainable.

        While laying down the principle, the Court sounded a
    word of caution as under:-

    10
         (1970) 1 sec 582                                                 H
•
32         SUPREME COURT REPORTS                     [2015] 9 S.C.R.

A       "~owever, while entertaining an objection as to the
       maintainability of a writ petition under Article 226 of the
       Constitution of India, the court should bear in mind the
       fact that the power to issue prerogative writs under Article
       226 of the Constitution is plenary in nature and is not
B      limited by any other provisions of the Constitution. The
       High Court having regard to the facts of the case, has a
       discretion to entertain or not to entertain a writ petition.
       The Court has imposed upon itself certain restrictions in
       the exercise of this power. (See Whirlpool Corpn. v.
c      Registrar of Trade Marks 11 .) And this plenary right of the
       High Court to issue a prerogative writ will not normally
       be exercised by the Cou_rt to the exclusion of other
       available remedies unless such action of the State or its
       instrumentality is arbitrary and unreasonable so as to
D
       violate the constitutional mandate of Article 14 or for other
       valid and legitimate reasons, for which the Court thinks it
       necessary to exercise the said jurisdiction".

          17. It is appropriate to state here that in the said case,
E the Court granted the relief as the facts were absolutely clear
     from the documentary evidence brought which pertain to
     interpretation of certain clauses of contract of insurance. In
     that context, the Court opined:-

F        " .... The terms of the insurance contract which were
         agreed between the parties were after the terms of the
         contract between the exporter and the importer were
         executed which included the addendum, therefore,
         without hesitation we must proceed on the basis that the
G        first respondent issued the insurance policy knowing very
         well that there was more than one mode of payment of
         consideration and it had insured failure of all the modes
         of payment of consideration. From the correspondence
         as well as from the terms of the policy, it is noticed that
H    11
        (1998) a sec 1
                      STATE OF KERALA& ORS. v. M. K. JOSE                  33
                                [DIPAK MISRA, J.]

           existence of only two conditions has been made as a             A
           condition· precedent for making the first respondent
           Corporation liable to pay for the insured risk, that is: (1)
           there should be a default on the part of the Kazak
           Corporation to pay for the goods received; and (i1) there
           should be a failure on the part of the Kazakhstan               B
           Government to fulfil their guarantee".
              And it eventually held:-
           "..... We have come to the conclusion that the amended
           clause 6 of the agreement between the exporter and the          c
           importer on the face of it does not give room for a second
           or another construction than the one already accepted
           by us. We have also noted that reliance placed on sub-
           clause (cf) of the proviso to the ins~rance contract by the
           Appellate Bench is also misplaced which is clear from           D
           the language of the said clause itself. Therefore, in our
           opinion, it does not require any external aid, much less
           any oral evidence to interpret the above clause. Merely
           because the first respondent wants to dispute this fact,
                                                                           E
           in our opinion, it does r:iot become a disputed fact. If such
           objection as "to disputed questions or interpretations is
           raised in a writ petition, in our opinion, the courts can
           very well go into the same and decide that objection if
           facts permit the same as in this case".
                                                                           F
          18. In this regard, a reference to Noble Resources Ltd. v.
     State of Orissa and Another12 would be seemly. The two-Judge
     Bench referred to the ABL International (supra), Dwarkadas
     Marfatia & Sons v. Board of Trustees, Port of Bombay13 ,
     Mahabir Auto Stores v. Indian Oil Corp. 14 and Jamshed G
'•
     Hormusji Wadia v. Board of Trustees, Port of Mumbai1 5
     and opined thus:-
     12
                o sec 236
          (2006) 1
     13
                sec 293
          ( 1989) 3
     1• (1990) 3 sec 752                                                   H
"'   15
        (2004) 3 sec 214
34             SUPREME COURT REPORTS                    [2015] 9 S.C.R:


A         "Although the scope of judicial review or the development
          of law in this field has been noticed hereinbefore
          particularly in the light of the decision of this Court in ABL
          lntemationa/ Ltd.-each case, however, must be decided
          on its own facts. Public interest as noticed hereinbefore,
8         may be one of the factors to exercise the power of judicial
          review. In a case where a public law element is involved,
          judicial review may be permissible. (See Binny Ltd. v. II.
          Sadasivan 16 and GB. Mahajan v. Jalgaon Municipal
          Counci/1 7. )"
c
        19. Thereafter, the court proceeded to analyse the facts
  and came to hold that certain serious disputed questions of
  facts have arisen for determination and such disputes ordinarily
  could not have been entertained by the High Court in exercise
D of its power of judicial review and ultimately the appeal was
  dismissed.

        20. We have referred to the aforesaid authorities to
  highlight under what circumstances in respect of contractual
E claim  or challenge to violation of contract can be entertained
  by a writ court. It depends upon facts of each case. The issue
  that had arisen in ABL International (supra) was that an
  instrumentality of a State was placing a different construction
  on the clauses of the contract of insurance and the insured
F was interpreting the contract differently. The Court thought it
  apt merely because sQmething is disputed by the insurer, it
  should not enter into the realm of disputed questions of fact. In
  fact, there was no disputed question of fact, but it required
  interpretation of the terms of the contract of insurance.
G Similarly, if the 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 has appointed a Commission to collect the

H
     16
          (2005) 6 oscc 657
                                                                           ...
     11
          (1991) 3 sec 91
               STATE OF KERALA& ORS. v. M. K. JOSE                       35
                         [DIPAK MISRA, J.]

      evidence accepted the same without calling for objections from A
      the respondent and quashed the order of termination of
      contr<.:::~. The procedure adopted by the High Court, if we

•     permit ourselves to say so, is quite unknown to exercise of
      powers under Article 226 in a contractual matter. We can well
      appreciate a Committee being appointed in a Public Interest B
      Litigation to assist the Court or to find out certain facts. Such
      an exercise is meant for public good and in public interest.
      For example, when an issue arises whether in a particular State
      there are toilets for school children and there is an assertion
      by the State that there are good toilets, definitely the Court C
      can appoint a Committee to verify the same. It is because the
      lis is not adversarial in nature. The same principle cannot be
      taken recourse to in respect of a contractual controversy. It is
      also surprising that the High Court has been entertaining series
                                                                        0
      of writ petitions at the instance of the respondent, which is
      nothing but abuse of the process of extraordinary jurisdiction
      of the High Court. The Appellate Bench should have applied
      more restraint and proceeded in accordance _with law instead
      of making a roving enquiry. Such a step is impermissible and E
      by no stretch of imagination subserves any public interest.

           21. Consequently, the appeal is allowed and the judgment
      and order passed by the Appellate Bench is set aside.
      However, in the facts and circumstances of the case, we refrain    F
      from imposing costs.

      Nidhi Jain                                       Appeal allowed.




 ..

_.,