JUDGMENT Mohite R.S., J.
1. The petitioners were leased a plot of land by CIDCO for a lease premium of Rs.2 crores. The said plot of land was plot No. 1 in Sector No. 2 in Kharghar and initially an EMD of Rs. 20 lakhs was paid by the petitioners to CIDCO on 31.5.2004. The balance amount of Rs. 180/- lakhs was thereafter paid to CIDCO in two instalments; Rs. 90 lakhs having been paid on 16.8.2004 and further amount of Rs. 90 lakhs being paid on 19.8.2004. After receipt of the full amount, CIDCO executed an agreement of lease in favour of the petitioners on 17.1.2005.
2. It appears that in January-2004 the State Government appointed one Dr. D.K. Sankaran, Additional Chief Secretary to go into the question of allotment of plots during the tenure of one Mr. V.M. Lal, the then managing director of CIDCO. Dr. D.K. Sankaran after conducting a discreet enquiry submitted his report on 31.3.2005. The State Government by its letter dated 15.4.2005 forwarded this report to CIDCO and directed CIDCO to proceed with the implementation of his such recommendations.
3. That on the basis of report a show cause notice dated 14.7.2005 came to be issued by CIDCO to the petitioners. It is noticed from the show cause notice that it contains no allegation of fraud, mis-representation or undue influence on the part of the petitioners. The substance of the notice is that the concluded agreement was void on the thrust of Section 23 of the Contract Act, 1872 arid as it was opposed to public policy.
4. In response to this show cause notice the petitioners gave a reply dated 27.7.2005 inter alia raising preliminery objections and stating that it was not possible to give a reply to the show cause notice without being given a copy of Dr. D.K. Sankaran's report which had been heavily relied upon by the CIDCO in its show cause notice.
5. It appears that CIDCO without furnishing a copy of the report of Dr. D.K. Sankaran inspite of a specific request passed the impugned order dated 16-12-2005 in which it was mentioned that the board of directors of CIDCO had found themselves in substantial concurrence with the finding recorded by Dr. D.K. Sankaran the Additional Chief Secretary in its enquiry. The impugned order further mentioned that the agreement signed by the CIDCO was void ab initio under Section 23 of the Contract Act as tenders were not invited and also violated Article 14 of the Constitution of India. It may be mentioned that even in this impugned order there is no finding of any fraud, mis-representation or undue influence on the part of the petitioners. The impugned order called upon the petitioners to remain present at the site on 4.1.2006 and to hand over peaceful possession of the said plot. It provided that on the surrender of the plot, CIDCO would repay the sum of Rs. 2,43,81,159/- paid by the petitioners in the past on account of premium and other charges without interest.
6. While urging the grant of ad interim relief in this case, the Advocate for the petitioners first drawn my attention to regula-tion-4 of the New Bombay Disposal of Land Regulation 1975. The said Rule 4 is in the following terms :
Manner of disposal of land- The Corporation may dispose plots of lands by public auction or tender or by considering individual applications as the Corporation may determine from time to time.
It was contended that there was no wrong doing such as fraud, undue influence or mis-representation alleged against the present petitioners. That the procedure has been prescribed and followed by CIDCO within the regulation and on consideration of individual applications. It was contended that there was a gross violation of the rules of natural justice in so far as though the show cause notice as well as final order were clearly based upon the report of Dr. D.K. Sankaran and that though a specific request has been made for making the said report available in order to file a reply, the order was passed without making available a copy of the said report and thus without opportunity to file a full and proper reply.
7. It was then contended that in so far as the loss said to have been caused to CIDCO to the tune of Rs. 938 lakhs as mentioned in the show cause notice, the final order did not indicate that there was any such loss. That in any case, the petitioners were willing to make good any such loss upon an independent valuation of the plot or upon a fresh and fair enquiry by CIDCO provided that such valuation pertained to the value on the date of the allotment. On behalf of CIDCO a fair statement was made that the copy of the Dr. D.K. Sankaran report had not been given inspite of the petitioners' request. It was contended that the petitioners ought to have filed a suit. Reliance was placed upon the Judgment of the Division Bench of this Court dated 12.12.2005 passed in Writ Petition No. 8506/2005. It is not clear from the said Judgment as to whether there were contentions relating to violation of rules of natural justice and the facts of that case are not before me. Advocate for the petitioners also placed reliance on another Judgment of the Division Bench of this Court delivered in Writ petition No. 3970/2005. It was contended that here also action was sought to be taken on the basis of Dr. D.K. Sankaran report. This Writ petition was entertained and the petitioner in that case was permitted to make a representation. It was contended that on the representation being made by the said petitioner, CIDCO accepted the representation and took no further action. The facts of this case are also not before me.
8. The law in relation to the scope of writ jurisdiction has been the subject-matter of catena of decisions by the Apex Court. The most recent case in a series of decisions is the judgment of the Apex Court in the case of (Binny Ltd., v. V. Sadasivan]', where the Apex Court has referred to and relied upon a passage from administrative law by Sir William Wade to the effect that the distinction has always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. Even in respect of public duties, the principle of judicial review has got limited application. The interpretation and implementation of a contract cannot be a subject-matter of writ petition. If a term of a contract is violated ordinarily the remedy is not a writ petition under Article 226 of the Constitution of India. There must be public law element and cannot be exercised private contract entered into between the parties.
9. The issue raised in this petition is however, not related to the interpretation and implementation of any clause in a contract or the violation of any term of the contract. Admittedly, there is no allegation that the petitioners have violated any terms of the lease deed. The issue which is agitated is that the civil right of a party has been taken away without giving them a crucial document which is the sole basis of the impugned order i.e. Dr. D.K. Sankaran report. There is a public duty caste upon CIDCO to be held fair and not act in any manner which would be arbitrary. If this is not done then their action of passing an order which would deprive the petitioners of their property would clearly affect their civil rights. This in my view, can be are arguably a violation of natural justice. This principle of law is also covered by a catena of decisions, the last of which being the Judgment of the Apex Court in the case of (Canara Bank v. A.K. Aurasthy), , in which the Apex Court eluciated the meaning of the term "principle of natural justice". After considering several judgments the Apex Court held that even an administrative order which involved civil consequences must be consistent with the rules of natural justice. The expression civil justice encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non pecuniary damages. It is clear that there is a public duty caste upon the CIDCO to act fairly and not arbitrary. Looking to the facts of the case I feel that prima facie, there appears to be a prima fade case made out to indicate violation of the rules of natural justice in so far as the main and crucial document which was the subject-matter and basis of the show cause notice was not furnished to the petitioners inspite of demand, depriving them of the means to give an effective reply.
10. On behalf of the State Government the learned AGP submitted that the State Government was only concerned with the recovery of loss as mentioned in the Dr. D.K. Sankaran's report. In this regard as stated earlier, petitioners submitted that they are willing to make good any difference upon fair valuation conducted either by CIDCO or any other competent independent valuer.
11. I feel that prima fade there appears to be a violation of the rules of natural justice in so far as the main and crucial document which was the subject-matter of the show cause notice was not furnished to the petitioners inspite of demand depriving them of the means of furnish an effective reply.
12. The question as to whether the object of the agreement of lease deed was in violation of public policy, is also a matter in which the Court has to form an opinion on a case to case basis. This is clear on the plain reading of Section 23 of the Indian Contract Act, 1872. It is arguable that a party to contract cannot declare its own action to be unfair and improper, causing detriment to the persons in whose favour civil rights have been created and who have already acted upon the concluded contract. In so far as Article 14 of the Constitution of India is concerned, it is also arguable that a party to a contract cannot unilaterally decide that a contract executed by them is ultravires the Constitution of India.
13. In the circumstances, notice to the respondents returnable in 4 weeks. Notice to mention that the matter may be disposed of finally at the stage of admission. In the meanwhile, there will be an ad interim stay of the execution and effect of the impugned order dated 16.12.2005. Advocate appearing for respondent Nos. 1 & 2 waive notice. Reply to be filed within a period of 4 weeks. Rejoinder may be filed within a period of 2 weeks after receipt of reply. Liberty to parties to mention the matter as soon as pleadings are completed. An additional affidavit on behalf of the petitioners affirmed on 4.1.2006 is taken on record.