Should a written petition be upheld in authorities / state contracts?

Must a written petition be upheld in government / state contracts? written by Garvit Daga student of NALSAR University of Law


A written petition is an order from a higher court to a lower court to carry out a specific act or to prevent them from carrying out an act. There is a set direction against a lower court order. That being said, when a person’s fundamental rights are violated or violated as a remedial measure to strengthen the above rights, a written record will be issued. The Indian Constitution has given power to write to the High Courts and the Supreme Court under Articles 226 and 32. Given the above purpose for which a document can be issued, the question may arise: how can the court make a written application on a contractual matter where the parties’ rights are essentially derived from the contract and are not fundamental rights?


The principles for the maintainability of written applications in government contracts have evolved significantly over the decades. Over time, the courts seem to have shifted from the idea of ​​not admitting written applications in contractual state affairs to situations where, in the interests of justice, it is appropriate to give petitioners the opportunity to make claims in writing. The Hon’ble Supreme Court in the case of Smt. Gunwant Kaur and Ors. v. Community Committee, Bhatinda and Ors. identified certain legal principles for the maintainability of a written petition – a. A written petition against a state or its instrumentality resulting from a contractual obligation can only be upheld in appropriate cases.
b. A mere argument about questions of fact can usually not be a reason for refusing to submit a written petition in all cases.
c. A written petition with consequential relief from the monetary claim must also be upheld. The court also found that the power to issue documents rests in the plenary and is not limited by other constitutional provisions. However, maintaining a written petition is at the discretion of the court. It is thus clear that there is no absolute obstacle to having written petitions about the state’s contractual obligations. The courts have repeatedly pointed out various circumstances under which written petitions against the state’s contractual obligations can be upheld.

Any government treaty broadly consists of four phases. In the first phase, tenders are published by publishing a tender. The authorities are currently concentrating on formulating terms and conditions for the tender as well as contractual terms that the contracting parties would regulate. The Supreme Court has categorically stated that courts can intervene in the terms of an offer if they are intrinsically arbitrary, discriminatory, malicious or biased (see Directorate of Education and Ors. V. Educomp Datamatics and Ors.). In the second phase, the decisions about the allocation or rejection of the offer or the cancellation of the entire process are made. At this stage, the court may challenge the award decision-making process through its power of judicial review if an item of public interest is involved. It should be noted that the decision to award the contract cannot be made by a court in the context of judicial review. However, the decision-making process falls within the scope of judicial review. The aforementioned statement was made in the cases of TATA Cellular v Union of India and Raunaq International Ltd. against IVR Construction Ltd. and Ors. The next stage involves the fulfillment of the contract. Any violation at this stage is subject to the terms and conditions. The mere fact that the state or its instrument is a contracting party makes a written petition unsustainable. The final stage is when the contractor claims his debt after the contract has been executed. This phase can be divided into two categories:
a. If the claimed amount is not disputed;
b. Where the claimed amount is disputed.

In the case of Radhakrishan Agarwal v. Bihar State, the Supreme Court listed three illustrative categories of cases in which a written petition in state contractual matters may be admissible:
“(I) when a petitioner complains about a breach of promise by the state because, based on the assurance or promise of the state, he has kept his prejudices and predicaments, but the agreement is short of a contract within the meaning of Article 299 of the Constitution; (ii) if the contract concluded between the injured person and the state exercises a legal authority under a law or a regulation set out therein and the petitioner alleges a breach of duty on the part of the state in the case of such a legal contract; and (iii) when the contract between the state and the injured person is not legal but purely contractual and the rights and obligations of the parties are governed by the terms of the contract and the petitioner complains about their breach of a state contract. “

In relation to the first category, it was argued that such a case would attract Article 226 to enforce the Estoppel doctrine, since the state or its instruments are no less bound than private individuals in fulfilling the obligations they sign. This is because the party trying to bind the state has changed its position to its own disadvantage or disadvantage, relying on the representations of the state or its instruments. With regard to the second category, it was found that the rights and obligations under statutory contracts would essentially be of a statutory nature; Thus, the person concerned can apply for the enforcement of a letter to enforce such contractual obligations (of a legal nature). The third category of contracts relate to cases of breaches of pure and simple contracts; A document u / a 226 cannot be issued if only a recovery of funds is requested, since it is a private right, while a document is intended to protect public rights. Therefore, no Article 226 remedy is normally available unless an element of public interest or a violation of public law is demonstrated.

In cases where the asserted claim is undisputed without counterclaims or counterclaims, the maintainability of a written application depends on the availability of an alternative effective legal remedy. However, this does not mean that a written application is excluded if an alternative legal remedy exists. Maintainability essentially remains subject to the exercise of the discretion of the courts. It has been repeatedly repeated that two important conditions must be met in order to invoke written competence under Article 226, namely: a. The identity of the person against whom the letter is sought as a person or entity fit for the jurisdiction of the letter and (ii) the type of duty which it is sought to enforce is a public duty or has an element of public interest. Of the two above, the second requirement cannot be ignored under any circumstances. However, in situations where the state or the Instruments fail to ulteriorly or arbitrarily settle the contractor’s fees; or if the state discriminates against contractors in the payment of fees – such decisions or acts of the state not to pay cannot be entirely removed from the scope of Article 226, since in such cases the petitioner essentially requires the written court of the state instructing to act in accordance with its constitutional obligations by abiding by the letter and spirit of Articles 14 and 21. This opinion was given by the court in Abdul Kasem Ali Ahmed v. Assam and Ors State. in the interests of justice. As a precaution, it should be noted that not every state act in its contractual matters can be submitted to a written petition. It was further observed in Kumari Shrilekha Vidyarthi and Ors. v. State UP and Ors, in the event that the state is unable to provide evidence to the court to justify its actions as just, just and reasonable, the burden of proof of arbitrariness on the petitioner’s shoulders will be relieved. and the scope for the court to question the state about its limited inappropriateness in contractual matters must remain open to ensure that the state does not act arbitrarily and inappropriately. Therefore, it has now been decided that in a case where an instrument of the state in its contractual, constitutional or legal obligations violates unfairly, inappropriately, unjustly and against the public interest and the common good, it in reality violates the law and fundamental constitutional rights guaranteed under Article 14 of the Constitution of India. (See ABL International Ltd. versus Export Credit Guarantee Ltd). For the decision on the maintainability of the written petition, the court must also ensure that only those petitions are admissible that raise a constitutional or legal question in addition to the mere demand for the enforcement of contractual rights. (See Life Insurance Corporation of India v Asha Goel)

Another factor to consider when deciding on the maintainability of the written application is whether failure of the written court to interfere would force the petitioner into lengthy civil litigation, leading to serious prejudice and injustice. In such cases, if the court deems it fair and reasonable, interference by approving the written petition becomes not only desirable but necessary. This factor was brought to light by the Supreme Court in Asha Goel (see above). In situations where the state or its instrumentality cancels the work order, the court must examine the reason on which the basis of such termination is based, that is, whether the termination is due to a breach of contractual terms or whether the contract is in breach. The judiciary dictates that in the latter case the written petition should only be admissible as the former is a purely contractual dispute. Moreover, it can be said that if an agreement made under Article 299 of the Constitution is annulled for a reason that does not relate to any of the contractual terms and is per se contrary to Article 14 of the Constitution, that court may exercise jurisdiction under Article 226 of Exercise constitution. This was also ruled by the Hon’ble Gujrat High Court at Aakash Exploration Services Limited v. Oil and Natural Gas Corporation Limited.
Therefore, it has now been shown that written petitions in contractual state matters or their instrumentality can be sustained depending on the circumstances in this case and whether it is just, reasonable, fair, necessary and desirable for the court to intervene in such a case and prevent the state from acting unfairly, inappropriately, arbitrarily and unconstitutionally.

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