Can high court in writ of manamdus direct army department to follow their obligations under contract
Navi
(Querist) 26 April 2012
This query is : Resolved
Would like to know whether High Court in India could direct Millitary Enginer Service to perform its obligation and blacklist a contractor according to the contract? Actually MES doesnt want to blacklist but the contractor has caused loss to petitioner by making false promise on behalf of MES.
Navi
(Querist) 26 April 2012
Sir, Actually petitioner was given sub-contract by contractor of Army without permission of Army. When petitioner invested on site, he found through RTI that no permission was given by Army. But Army officer was at site daily making reports.
Petitioner approached Army and told them contractor did fraud with petitoner and as per contract of army & contractor. If contractor sublets or even attempts to sublet any portion of work, contractor would be blacklisted. But army did not blacklist contractor rather asked contractor to terminate petitoner because army officials are taking money from contractor.
So we have filed writ of manadmus in High court to seek appropriate action by Army to Blacklist the contractor as per contract clause.
Case is pending for Arguments but some one suggested me that HiIgh court cannot pass direction to court to blacklist contractor as petitioner is third party and has no locus?
ajay sethi
(Expert) 26 April 2012
thre is no privity of contract between army and sub contractor . the contract was entered into directly by the army with contractor . further contract specifically provided that contract cannot be sublet . hence i doubt whether court will intervene at most it may direct army to take action aginst contractor as per rules
Raj Kumar Makkad
(Expert) 26 April 2012
any person can make the wheels of criminal Court move even without having any direct cause of action. This connotation has been established by Hon'ble Supreme Court in various times. Section 190 Criminal Procedure Code can be taken as a starting point for that purpose.
The contractor is making a fraud with State and as a citizen of India, one has to contribute in the State exchequer. Everyone of us is owner of the State exchequer and loot towards it cannot be permitted.
In view of above, High Court is the most competent institution to direct the Armed authorities not only to terminate contract of such contractor but also to recover entire losses incurred to State.
Navi
(Querist) 26 April 2012
Mr. Ajay
Yes sure that contract was between Army and contractor but in that case Army would never blacklist because army officials are getting enough money from contractor. In that case what is the option to take action against contractor.
Even PIL would not be accepted as petitoner would be beneficial in that case.
Navi
(Querist) 26 April 2012
Mr.Raj Kumar
Thanks for reply but what type of case would be appropriate because it cannot be PIL as petitioner would be beneficiary, If petitioner i.e. sub-contractor would file writ of manadmus then, petitioner is third party and having no locus??
Navi
(Querist) 27 April 2012
Mr.Prabhakar
You go with Mr.Raj or Mr.Ajay. Does the sub-contractor has locus standi in writ of mandamus directing Army to blacklist contractor according to agreement between army and contractor? Because sub-contractor has invested and lost money because of contractor wrong contract done with sub-contractor and work was done in constant survillence of Army's officers??
Dr J C Vashista
(Expert) 28 April 2012
In your situation there is no privity of contract between MES and the sub-contractor, hence, Army has remote control/nexus with sub-contractor.
High Court cannot issue a writ against a private person.
Navi
(Querist) 28 April 2012
Dr.Vashista
Thankyou for your reply and now studying on the privity of contract. I have found that there is exception to the same in case third party i.e. Sub-contractor is beneficiary of contract or has Collateral contract with any of parties. In this case Sub-contractor has agreement with contractor based on terms of agreement of contractor and MES. The agreement of Sub-contractor & contractor was valid only when Contractor & MES had contract.
Navi
(Querist) 17 September 2012
Today was date in same case...for arguements...Judge asked our counsel for locus standi for next date...what remedy do we have actually main contractor has done sub-letting without permission from army but army officials are indirectly involved in it having survillence by their officers on site.
Also army in their reply, filed that they directed main contractor to finish sub-letting but main contractor instead of saying that army has stopped them terminated saying we are not working on site...so ultimately army causing us loss. other sub-contractors who have not raised voice in army are still work which we could proof
