Prem Lata Nigam Advocate vs Lucknow Development Authority ...
2017 Latest Caselaw 1816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved 
 

 
Case :- MISC. BENCH No. - 6011 of 2014
 
Petitioner :- Prem Lata Nigam Advocate
 
Respondent :- Lucknow Development Authority Thru. Its Vice Chairman Naveen
 
Counsel for Petitioner :- Vijyant Nigam
 
Counsel for Respondent :- Gaurav Mehrotra,N C Mehrotra
 

 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1- By means of present writ petition filed under Article 226 of Constitution of India, the petitioner has assailed the orders dated 18.6.2014 and 26.5.2009 passed by respondent i.e. Vice Chairman, Lucknow Development Authority,Lucknow cancelling the allotment of the plot in favour of the petitioner in Viraj Khand, Gomti Nagar Lucknow and further with the prayer to issue a writ , order or direction in the nature of Mandamus commanding the opposite parties to revive allotment order in the Gomti Nagar scheme and to issue a fresh allotment order in favour of petitioner in Viraj Khand, Gomti Nagar, Lucknow, without demanding any cost of land from the petitioner and adjust all development charges against the amount of rupees 21,250/-, already deposited by the petitioner.

2- Brief facts giving rise to filing of the present writ petition are that previously the petitioner was a Member of M/s Geet Vihar Sahkari Awas Samiti, registered under the Society Registration Act. The Society owned the certain land, which was divided into several plots and were allotted to the Members of the society including one land to the petitioner. Lucknow Development Authority ( hereinafter called as L.D.A.) sought to acquire the land and to transfer the same to a builder to be sold to the general public for residential purposes. Aggrieved by the action of L.D.A. the society filed a writ petition no.-881/1986 M/s Geet Vihar Sahkari Awas Samiti Versus State of U.P. and L.D.A., and subsequently a contempt notice was also issued against the L.D.A. Later on a proposal for effecting a compromise was mooted by the L.D.A. and the matter was settled by registered agreement with certain conditions as laid down in the agreement deed.

3- It has been submitted by the learned Counsel for the petitioner that the amount of the plot has been paid to the society and afterward an amount of rupees 21,250/- was paid to the L.D.A. towards development charges. After lapse of several years the petitioner was not allotted any land in terms of the compromise between the society and the L.D.A. and later on request was made to the L.D.A. to develop the land even to demark the plot but the same was not acted upon and after that the petitioner submitted an application before L.D.A. for transfer of her allotment of plot from Sitapur road to any other scheme and again on 9.2.1999 a request was made for consideration of allotment of plot from Sitapur road scheme to Gomti Nagar Scheme and on 14.3.2000 she was communicated to consult the competent authority in the L.D.A. for taking final decision in the matter. The petitioner further made a representation before the Secretary, Awas U.P. Government, Lucknow, who forwarded her representation to the L.D.A. asking for immediate comments and in compliance thereof L.D.A. informed the petitioner vide letter dated 12.9.2007 regarding allotment of plot no.-3/154 Viraj Khand, Gomti Nagar Scheme. The L.D.A. demanded an amount of rupees 11,42,117/- and it is alleged by the petitioner that it was contrary to the compromise deed and cannot be demanded by the L.D.A. When the amount mentioned in the notice was not paid by the petitioner , the L.D.A. vide letter and order dated 26.5.2009 informed the petitioner regarding cancellation of the allotment of the above plot and later on the petitioner make a request to recall the order and after repeated request and representation, the L.D.A. has not taken any action, thus the present writ petition has been preferred by the petitioner.

4- By filing counter affidavit the L.D.A. has submitted that the land was acquired under the Land Acquisition Act and possession was taken by the State Government and handed over to the L.D.A. The society filed a petition for cancellation of the Acquisition order, but the notification regarding acquisition was not turned down and the L.D.A. acted further action in compliance of the notification and transfer of the land from the State Government to the L.D.A. It has further been submitted that on request of the petitioner a plot was allotted to her but the amount of cost was not paid by her inspite of several repeated request and notices, thus the allotment order was cancelled as per Rules.

5- Learned Counsel for the respondent has submitted that the land under question, which was subject-matter of dispute between the petitioner and the L.D.A. was acquired by the State Government and the possession was taken by the State Government and handed over to the L.D.A. for development work and once the possession had been taken, right title of any person with reference to these lands comes to an end.

6- Learned Counsel for the petitioner has submitted that prior to acquisition of the land the Society was not in possession of the land and there was agreement between the petitioner and the society and after taking over the land in acquisition proceedings there was agreement between the society and L.D.A. and L.D.A. is bound to provide the plot to the petitioner.

7- Learned Counsel for the respondent has submitted that the petitioner was not party in the compromise. Secondly, once the land has been acquired by the State it vests in the State from from all encumbrances. Notification and declaration under Sections 4 and 6 of the Act 1894 cannot be challenged at such a belated stage. (Vide Hari Singh Vs. State of U.P. & ors., AIR 1984 SC 1020; The Ramjas Foundation & ors. Vs. Union of India & ors., AIR 1993 SC 852; and Northern Indian Glass Industries Vs. Jaswant Singh & ors., AIR 2003 SC 234.

8- A Constitution Bench of the Hon'ble Supreme Court, in Aflatoon & Ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077, has observed as under:-

"...... to have sat in fence and allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The wit petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner."

9- Same view has been taken by the Hon'ble Supreme Court in State of Mysore Vs. V. K. Kangan, AIR 1975 SC 2190, wherein it was observed that respondent was not entitled to challenge the validity of Section 4 Notification after an unreasonable lapse of time. If public notice, as required by Section 4 of the Act, was not given and that would per se vitiate the notification under Section 4, the person interested should have challenged its validity within a reasonable time of the publication of the notification under Section 4 of the Act.

10- The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., AIR 1983 SC 653, wherein the Apex Court has observed as under:-

"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."

11- In State of Tamil Nadu Vs. L. Krishnan, AIR 1996 SC 497, the Apex Court held that "the delay in challenging the notification was fatal and the writ petitions were liable to be dismissed on the ground of laches only" and exercise of power under Article 226, after the award had been made, was held to be unjustified.

12- Similarly, in State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; and State of Orissa Vs. Dhobei Sethi & Anr. , (1995) 5 SCC 583, the Apex Court held that if the land acquisition proceedings stood finalized, interference by the writ court, quashing notification and declaration under Sections 4 and 6 respectively, was unwarranted and uncalled for. Exercise of jurisdiction in such a case cannot be said to be judicious and reasonable.

13- Similar view has been reiterated in Girdharan Prasad Missir Vs. State of Bihar, (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union of India, AIR 1992 SC 1414, Ram Chand Vs. Union of India, (1994) 1 SCC 44; and C. Padma Vs. Deputy Secretary to Govt. of Tamil Nadu, (1997) 2 SCC 627).

14- In Municipal Corporation of Greater Bombay Vs. I.D.I. Co. (Pvt) Ltd., AIR 1997 SC 482, the Hon'ble Supreme Court observed as under:-

"If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the State free from all incumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary power under Article 226 of the Constitution to quash the notification under Section 4 (1) and Declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court 5 should not exercise its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference."

15- Similar view has been reiterated in State of Rajasthan & ors.Vs. D.R. Laxmi & ors., (1996) 6 SCC 445, wherein the Apex Court has held that even the void proceedings need not be set at naught if the party has not approached the Court within reasonable time, as judicial review is not permissible at a belated stage.

16- In Hindustan Petroleum Corporation Vs. Dolly Das, (1999) 4 SCC 450, the Apex Court held as under:-

"So far as the contention regarding laches of the respondents in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of payment had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect, being dependant upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, where the mode is that the period for which the option of renewal has been exercised, has not come to an end. During the subsistence of such a period, certainly the respondents could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief."

17- In Ganpatibai & Anr. Vs. State of M.P. & Ors., (2006) 7 SCC 508, the Apex Court examined a case where the land owner filed a suit challenging the acquisition proceedings and it was dismissed as not maintainable and then he challenged the proceedings by filing a writ petition. The petition was dismissed on the ground of delay and laches. The Apex Court upheld the judgement observing that as long back the Apex Court had held that such suit was not maintainable, pendency of such suit could not be basis for explanation of the delay.

18- Similar view has been reiterated by the Hon'ble Supreme Court in Northern Indian Glass Industries Vs. Jaswant Singh, AIR 2003 SC 234; and Haryana State Handloom & Handicrafts Corporation Ltd. Vs. Jain School Society, AIR 2004 SC 850.

19- If some person has taken a relief from this Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.

20- The petitioner has submitted that if the plot has not been provided to the petitioner, he should be reasonably compensated. The plot under question was not in possession of the petitioner, secondly the plot has not been acquired from the petitioner and thirdly if there is any grievance, the grievance may be of the Society and compensation or solatium may be claimed by the society. Being privy to the contract, the petitioner had no right to agitate the matter of acquisition or payment of compensation, in the circumstances, where the petition filed by Society challenging the acquisition proceedings, has been decided by the Court and acquisition has not been quashed.

21- The Act provides for a mode of sale and purchase of land between the tenure holders and the State. However, as it is against the wishes of the tenure holder/person interested, the Act provides for solatium etc. There can be no dispute to the settled legal proposition that once the possession of the land is taken under the provisions of the Act, it vests in the State free from all encumbrances, whatsoever, it cannot be divested. The land so acquired cannot be restored to the tenure holder/person interested even if it is not used for the purpose it was acquired or for any other purpose. The proceedings cannot be withdrawn/abandoned under 8 the provisions of Section 48 of the Act or Section 21 of the General Clauses Act, once the possession of the land has been taken and the land has vested in State free from all encumbrances. (Vide State of Madhya Pradesh Vs. V.P. Sharma, AIR 1966 SC 1593; Lt. Governor of Himachal Pradesh & Anr. Vs. Shri Avinash Sharma, AIR 1970 SC 1576; Satendra Prasad Jain Vs. State of U.P. & Ors., AIR 1993 SC 2517; and Rajasthan Housing Board & Ors. Vs. Shri Kishan & Ors., (1993) 2 SCC 84).

22- The meaning of word ''vesting' has been considered time and again. In Fruit and Vegetable Merchants Union Vs. The Delhi Improvement Trust, AIR 1957 SC 344, the Hon'ble Apex Court held that the meaning of word ''vesting' varies as per the context of the Statute in which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under:-

"In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."

23- Encumbrances actually mean the burden caused by an act or omissions of man and not that created by nature.

24- In Abdul Karim Khan & Ors. Vs. Managing Committee George High School, AIR 1936 Alld. 879, this Court held that encumbrance means a burden or charge upon property or a claim or lien upon State or on the land. It means a legal liability on property. Thus, it constitutes a burden on the title which diminishes the value of the land. So far as the provisions of the land acquisition are concerned, the word ''encumbrance' means therein is interest in respect of which compensation has been made or could have been claimed. It includes like a lease or a mortgage, securities, servitudes and trust etc.

25- In Collector of Bombay Vs. Nusserwanji Rattanji Mistri & Ors., AIR 1955 SC 298, the Hon'ble Apex Court held that the word ''encumbrances' in Land Acquisition Act mean interests in respect of which a compensation was made or could have been made.

26- In State of Himachal Pradesh Vs. Tarsem Singh & Ors., AIR 2001 SC 3431, the Hon'ble Apex Court held that the terminology ''free from all encumbrances' used in Section 16 is wholly unqualified and would include 9 in its compass every right including an easementary right, which affects the land. It includes "all rights, title and interests including easementary rights" and stands extinguished when the title vests in the State. However, in Himachal Pradesh State Electricity Board Vs. Shiv Kumar Sharma, AIR 2005 SC 954, the Hon'ble Apex Court held that when the land vests in the State free from all encumbrances, it does not include the easementary rights.

27- Thus, ''free from all encumbrances' means vesting of land in the State without any burden or charge on it.

28- In Secretary of State Vs. Amulya Charan Banerjee, AIR 1927 Cal. 874, the Calcutta High Court considered the issue involved herein as to whether after acquisition of the land, it could be put to use for the purposes other than for what it was originally declared and held that ''after acquisition, the new owners have the ordinary rights of proprietors and may use their land as they think fit for any purpose, which does not infringe the rights of others and is not inconsistent with the purposes sanctioned by the Statute, under which the land has been taken. In Maharaja Luchmeswar Singh Vs. The Chairman of the Darbhanga Municipality, 17 IA 90, the Privy Council upheld the using of land for the purpose other than the purpose for which the land had been acquired reiterating the same view. In the said case, the land had been acquired for establishing a public Ghaat but on the part of the said land, a market had been established.

29- In Gulam Mustafa & Ors. Vs. The State of Maharashtra & Ors., AIR 1977 SC 448 in a similar situation, the Hon'ble Apex Court held as under:-

"Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the ........

declaration."

30- Reiterated a similar view in C. Padma & Ors. Vs. Deputy Secretary to the Government of Tamil Nadu & ors., (1997) 2 SCC 627, the Hon'ble Apex Court held that if by virtue of valid acquisition of land, it stands vested in the State, thereafter claimants are not entitled to restitution of the possession on the ground that either original public purpose is ceased to be in operation or the land could not be used for any other purposes.

31- In Government of Andhra Pradesh & Anr. Vs. Syed Akbar, 2004 AIR SCW 7125, the Hon'ble Apex Court considered this issue and held that once the land has vested in State, it cannot be divested either by virtue of Section 48 of the Act nor can re-convey the said land to the person interested/tenure holder and the question of restitution of possession to the tenure holder does not arise. While deciding the said case, the reliance had been placed upon earlier judgments in State of Kerala & Ors. Vs. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; Chandragauda Ramgonda Patil Vs. State of Maharastra, (1996) 6 SCC 405.

32- In Bangalore Development Authority Vs. R. Hanumaiah, (2005) 12 SCC 508, a similar view has been reiterated by the by the Hon'ble Apex Court placing reliance upon the judgments in Pratap Vs. State of Rajasthan, AIR 1996 SC 1296; Printers (Mysore) Ltd. Vs. M.A. Rasheed & Ors., (2004) 4 SCC 460.

33- In view of the above, the law can be crystallized that once the land is acquired and it vests in the State free from all encumbrances, it is not the concern of the land owner as how his land is used and whether the land is being used for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same unless the acquisition proceedings are itself challenged. The State does not have a power to reconvey the land to the person interested nor such a person can claim any right of restitute on any ground, whatsoever.

34- The power of judicial review of the writ court is limited, but it has competence to examine as to whether there was material to form such an opinion as required by law or the findings recorded by the authority concerned are perverse. It is settled law that non-consideration of relevant material renders an order perverse. A finding is said to be perverse when the same is not supported by evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularities (Vide Purushottam Chandra Vs. State of U.P. & Ors., AIR 1955 All 106; Mohar Singh Vs. President Notified Area Committee, Colonelganj & Ors., 1956 ALJ 759; Gaya Din Vs. Hanuman Prasad, AIR 2001 SC 386; and In the matter of Special Reference No. 1 of 2002 (Gujrat Assembly Election Matter), reported in (2002) 8 SCC 237).

35- A Full Bench of this Court in Nanha & Anr. Vs. Deputy Director of Consolidation, Kanpur & Ors., 1975 AWC 1 considered as to whether an order or a finding of a Court or Tribunal, passed on evidence on the record, can be interfered with under Article 226 of the Constitution, if some material evidence to the contrary has been ignored from consideration by the Court or Tribunal and held as under:-

"If it appears that a court of fact has in substance based its findings on no evidence or that its finding is perverse in the sense that no reasonable person could possibly come to that conclusion or that it erroneously ignores a vital plea or material evidence which affects the result, a manifest error of law apparent on the face of the record 22 leading to failure of justice can be said to be established. But if acourt or a tribunal bases its finding on a consideration of all relevant evidence, but an appellate or a revisional court or tribunal while affirming the finding does not refer to some material or contrary evidence in its order it cannot be said that it has been ignored from consideration so as to entitle the High Court to interfere under Article 226 of the Constitution."

36- In view of the above, it is evident that there is no prohibition in law to acquire the land for the public purpose which is not in conformity or in consonance with the purpose shown in the Master plan as the acquisition can be made in anticipation of amendment/modification of the Master Plan.

37- Learned Counsel for the respondents has argued that the petitioner had not applied for allotment of any plot before acquisition of land in the L.D.A. or she has not deposited any amount of cost of the plot and she had not filed the petition with correct facts with clean hands or clean mind.

38- When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

39- In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."

40- Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. They 30 are very often one and the same. ...... The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers."

41- In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

42- Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.

43- In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.

44- In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."

45- In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, 31 the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case.

46- It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the Petitioner on merits. In State of 33 Madhya Pradesh v. Bhailal Bhai - AIR 1964 SC 1006, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held:

"...It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.......It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.

...Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."

47- In Ajodhya Bhagat v. State of Bihar - (1974) 2 SCC 501, the Court approved dismissal by the High Court of the writ petition filed by the Appellant for quashing the acquisition of his land and observed:

The High Court held that the Appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The Appellants alleged that it was a paper transaction. The High Court rightly rejected that contention. Secondly, the High Court said that the Trust invested several lakhs of rupees for the construction of roads and material for development purposes. The Appellants were in full knowledge of the same. The Appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various 34 owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. The High Court rightly exercised discretion against the Appellants. We do not see any reason to take a contrary view to the discretion exercised by the High Court.

48- In State of Rajasthan v. D.R. Laxmi - (1996) 6 SCC 445, the Court referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and observed:

"The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances...."

49- In Girdharan Prasad Missir v. State of Bihar - (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the Petitioner.

50- In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. - (1996) 11 SCC 501, the Court held:

"It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The Division

Bench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

51- In Urban Improvement Trust, Udaipur v. Bheru Lal - (2002) 7 SCC 712, the Court reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a 35 residential scheme framed by the Appellant-Urban Improvement Trust was liable to be dismissed on the ground that the same was filed after two years.

52- In Ganpatibai v. State of M.P. - (2006) 7 SCC 508, the delay of 5 years was considered unreasonable and the order passed by the High Court refusing to entertain the writ petition was confirmed. In that case also the Petitioner had initially filed suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. The Court referred to an earlier judgment in State of Bihar v. Dhirendra Kumar - (1995) 4 SCC 229 and observed:

"In State of Bihar v. Dhirendra Kumar this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the Appellant, as noted above, pursued the suit in the civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the Appellant. Even after the decision of this Court, the Appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."

53- In Sawaran Lata v. State of Haryana - (2010) 4 SCC 532, the dismissal of writ petition filed after seven years of the publication of declaration and five years of the award passed by the Collector was upheld by the Court and it was observed:

"In the instant case, it is not the case of the Petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the Petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the Petitioners could not have knowledge of the acquisition proceedings."

54- It has been said from time and again by the Hon'ble Supreme Court that a party cannot be permitted to dispute the contractual obligations by invoking the extraordinary writ jurisdiction. In Bareilly Development Authority & Anr. vs. Ajay Pal Singh & Ors, AIR 1989 SC 1076, a similar contention had been raised. The Apex Court considered a catena of judgments, particularly, M/s. Radha Krishna Agarwal & ors. vs. State of Bihar & ors, AIR 1977 SC 1496; Premji Bhai Parmar & Ors Vs. Delhi Development Authority & ors, AIR 1980 SC 738; and The Divisional Forest Officer Vs. Bishwanath Tea Co. Ltd, AIR 1981 SC 1368, and arrived at the conclusion that where the contract entered into between the State and the persons agreed is non-statutory and purely contractual and the rights are governed only by the terms of the contract, writ petition under Article 226 of the Constitution of India is not maintainable. Similar view has been taken in State of Gujarat & Ors Vs. Meghji Pethraj Shah Charitable Trust & ors (1994) 3 SCC 552; and Noida Entrepreneurs Association Vs. U.P. Financial Corporation & anr; 1994 Suppl. (2) SCC 108.

55- In Indore Development Authority Vs. Smt. Sadhana Agarwal & ors., (1995) 3 SCC 1, the Hon'ble Supreme Court affirmed and approved the view taken by the Apex Court in Bareilly Development Authority (supra), but it further observed that the High Court, while exercising its extraordinary jurisdiction under Article 226 of the Constitution, may satisfy itself on the materials on record that the State has not acted in an arbitrary or erratic manner. A similar view has been taken by the Supreme Court in Union of India & ors. Vs. M/s. Graphic Industries Co. & ors., (1994) 5 SCC 398. In the said judgment, the Apex Court referred to its earlier judgments, particularly in Kumari Shrilekha Vidyarthi & ors Vs. State of U.P. & ors, AIR 1991 SC 537; Mahabir Auto Stores & ors. Vs. Indian Oil Corporation & ors., (1990) 3 SCC 752; and M/s Dwarkadas Marfatia & Sons Vs. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293, and observed that even in contractual matters, public authorities have to act fairly and if the State or its instrumentalities have failed to do so, then writ jurisdiction of the High Court under Article 226 of the Constitution can be resorted to because acting unfairly and arbitrarily amounts to flagrant violation of Article 14 of the Constitution.

56- In L.I.C. of India & anr. Vs. Consumer, Education & Research Centre & ors., (1995) 5 SCC 482, the Apex Court observed as under:-

"While exercising the power under Article 226, the Court would be circumspect to adjudicate the disputes arising out of the contract depending on the facts and circumstances in a given case... each case is to be examined on its own facts and circumstances to find out the nature of the activity or scope and nature of the controversy.... If a contract or a clause in a contract is found unreasonable or unfair or irrational, one must look to the relative bargaining power of the contracting parties."

57- In Har Shankar & ors. Vs. The Deputy Excise and Taxation Commissioner & ors, AIR 1975 SC 1121, the Apex Court has held as under:-

"The writ jurisdiction of the High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred."

58- Similarly, in State of Orissa & ors Vs. Narain Prasad & ors., AIR 1997 SC 1493, the Apex Court has observed as under:-

"A person who enters into certain contractual obligations with his eyes open and works the entire contract, cannot be allowed to turn round.... and question the validity of these obligations or the validity of the Rules which constitute the terms of contract. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is exercised only to advance the interest of justice, cannot certainly be employed in aid of such persons. Neither justice nor equity is in their favour."

59- Similarly, in Raunaq International Ltd. Vs. I.V.R. Construction Ltd. & ors., AIR 1999 SC 393, the Hon'ble Supreme Court has held that in absence of mala fides or extreme case of arbitrariness, it is not permissible for the Writ Court to have a judicial review of contract or to enforce the contractual obligations in exercise of its jurisdiction under Article 226 of the Constitution.

60- In Kerala State Electricity Board & anr Vs. Kurien E. Kalathil & ors, (2000) 6 SCC 293; the Hon'ble Supreme Court, in a similar situation, observed as under:-

"If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observation of the High Court the contractor was seeking enforcement of a statutory contract. A contract would not become statutory merely because it is for construction of a public utility and it has been awarded by a statutory body. We are also agree with the observation of the High Court that since the obligation imposed by the contract on the contracting parties comes within the purview of the Contract Act, that would not make the contract statutory. Clearly the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature...... The contract between the parties is in the rem of private law. It is not a statutory contract. The dispute relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. This is a matter for adjudication by a civil court or in arbitration if provided for in the contract."

61- On the contrary, in Union of India & anr Vs. State of Haryana & anr (2000) 10 SCC 482, the Hon'ble Supreme Court clarified that where a pure question of law is raised, the issue can be considered by the Writ Court also. In the said case, the question whether provisions of telephone connections and instrument amount to sale and even so why the Union of India not exempted from payment of sales tax under the respective statute, was involved. The Hon'ble Supreme Court held that instead of relegating the parties to the statutory appellate authority, the High Court ought to have dealt with the issue.

62- In Century Spinning & Manufacturing Co. Ltd. & anr Vs. The Ulhasnagar Municipal Council & anr. AIR 1971 SC 1021, the Apex Court held that public bodies are as much bound as private individuals to carry out representations of facts and promises made by them. "The obligation arising against an individual out of his representation amounts to a promise which may be enforced ex-contract by a person who acts upon the promise." The Court further observed that merely because a question of fact is raised, the High Court will not be justified in requiring the party to seek relief by the somewhat lengthy, dilatory and exceptional process by a civil suit against a public body. The questions of fact raised by the petitioner in this case are elementary."

63- In Life Insurance Corpn. of India & ors Vs. Smt. Asha Goel & anr., 2001 (2) SCC 160 while dealing with the similar issue the Hon'ble Apex Court held that High Court should not ordinarily entertain a writ petition for mere enforcement of a claim under a contract of insurance. The Court has to examine the facts and circumstances of the case, the nature of the dispute raised and the nature of the enquiry necessary to be made for determination of the questions involved. It is neither possible nor proper to enumerate exhaustively the circumstances in which such a claim can be enforced by filing a writ petition. The Court has to examine as to whether petition has been filed merely to enforce contractual rights or case involves important questions of law and constitutional issues.

64- In Verigamto Naveen Vs. Govt. of A.P. & ors, (2001) 8 SCC 344, the Hon'ble Supreme Court held that a writ petition involving contractual matters can be entertained by the High Court where breach of contract involves breach of a statutory obligation and order complained of has been made in exercise of statutory power by a statutory authority. In such cases though the cause of action may arise out of a contract, but the dispute of this nature falls within ambit of public law, and therefore, writ may be entertained.

65- In State of Bihar & ors. Vs. Jain Plastic & Chemicals Ltd., (2002) 1 SCC 216 the Apex Court considering the same issue held that in case of a Government contract writ may not be a appropriate remedy. Where disputed questions or rival claims arising out of breach of contract are required to be investigated and determination, writ cannot be entertained.

66- In Style (Dress Land) Vs. Union Territory, Chandigarh & anr., (1999) 7 SCC 89, the Apex Court held that in case the procedure adopted by the Authority is arbitrary or unreasonable, the case falls within the ambit of Article 14 of the Constitution and writ jurisdiction can be resorted to in such a matter.

67- Thus, there seems to be no law of universal application regarding the issue of maintainability of the writ petition in contractual matters, rather it would depend upon the facts and circumstances of an individual case.

68- In National Highways Authority of India Vs. Ganga Enterprises & anr., (2003) 7 SCC 410, the Hon'ble Supreme Court cautioned the High Courts that while examining the contractual matters in a writ jurisdiction, the Court is duty bound first to examine the issue of maintainability for the reason that contractual matters cannot be entertained in a routine manner.

69- In Orissa State Financial Corporation Vs. Narsingh Ch. Nayak & Ors., (2003) 10 SCC 261, it was held that the High Court cannot enter the area of contractual obligations between the parties and issue directions annulling an existing contract and introducing a new contract in its stead.

70- In State of U.P. & Ors. Vs. Bridge & Roof Company (India) Ltd., (1996) 6 SCC 22, it was held that the High Court was justified in not going into the dispute as it involved interpretation of terms of the contract.

71- In Indu Kakkar Vs. Haryana State Industrial Development Corporation Ltd. & Anr., (1999) 2 SCC 37, the Hon'ble Supreme Court has held that parties are bound by the terms incorporated in the agreement and in case of violation of any of the conditions, the allotment is bound to be cancelled.

72- There can be no dispute to the settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties. (Vide: Bareilly Development Authority and Anr. v. Ajay Pal Singh and Ors. MANU/SC/0058/1989MANU/SC/0058/1989 : AIR 1989 SC 1076; and State of U.P. and Ors. v. Bridge and Roof Co. (India) Ltd. MANU/SC/0969/1996MANU/SC/0969/1996 : AIR 1996 SC 3515).

73- In Kerala State Electricity Board and Anr. v. Kurien E. Kalathil and Ors. MANU/SC/0435/2000MANU/SC/0435/2000 : AIR 2000 SC 2573, this Court held that a writ cannot lie to resolve a disputed question of fact, particularly to interpret the disputed terms of a contract observing as under:

"........... The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. ....If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract.....

"...........The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract.... The contractor should have relegated to other remedies."

74- It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the Respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.

75- Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.

76- Learned Counsel for the respondents has submitted that on the request of the petitioner the plot was allotted in her favour and she was directed to deposit the cost of the land, but she failed to deposit the same inspite of certain notices and reminders.

77- It is the version of the petitioner that she was the Member of society and by virtue of agreement between the society and the L.D.A. she is entitled for allotment of plot without payment of any cost to the L.D.A. There is nothing on record to show that the petitioner had paid any amount towards the allotment of the plot in the account of the L.D.A. Further there is nothing on record that the petitioner had paid any amount to the society. Even if anything has been paid to the society L.D.A. is not bound to allot the land on the ground that an amount has been deposited to the society. The communication order dated 18.6.2014 reveals that plot no.-3/154 Viraj Khand Scheme was allotted in favour of the petitioner on cash down basis and considering the application of the petitioner on payment of rupees 5,57,2,80/-, but she failed to deposit it on or before the date fixed i.e. 28.1.1993 and for default of the payment , she was communicated that the allotment under question has been cancelled.

78- Learned Counsel for the petitioner has submitted that Special Secretary State of U.P., vide letter dated 19.7.2001 communicated Vice Chairman to the L.D.A. that the possession of the plot, has not been given to the petitioner and recommended to provide and consider the allotment of plot to the petitioner in Gomti Nagar Yojna subject to condition that she may not be compelled to pay the interest.

79- Learned Counsel for the respondent has submitted that this letter is not traceable in the office. Any way that does not give any right for allotment of any plot or handing over the possession without payment of any cost. It is admitted fact that petitioner had never paid any amount to the L.D.A. for allotment of plot in proportionate to the value of the cost. This letter has been challenged by the respondents on two points 1- The letter is not traceable 2- Such type of order cannot be passed by the Special Secretary on the ground that he had no jurisdiction to allot the plot to any individual against the terms and conditions and Rules. It has further been argued that the plot cannot be alloted free of cost. State instrumentalities are bound to follow the procedure and equity clause as enshrined under Article 14 of Constitution of India. The order is challenged on three grounds firstly on the ground of validity of order , secondly jurisdiction regarding passing the order and thirdly it classifies the person inviolation under Article 14 of Constitution of India. The letter is not binding on the L.D.A. This is not within the domain of the Secretary to direct to L.D.A. to allot or to provide any plot to any person free of cost.

80- Where there is a statutory rules for allotment and there is procedure for allotment of plot by the respondents, statutory rules are required to be observed, thus the action of the respondents, are in accordance with law.

81- It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.

82- In Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities."

83. Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331, has observed as under:-

"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies..............the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).

84- Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat & Ors., AIR 1987 SC 1073; and Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius Vs. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under:-

"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

85- In Commissioner of Police (supra), the Apex Court observed as under:-

"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.........An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."

86- In Dr. Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, the Apex Court observed as under:-

"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits............wrong channel adopted..........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy."

87- The Supreme Court has taken the same view in Ram Chand & Ors. Vs. Union of India & Ors., (1994) 1 SCC 44, and held that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness."

88- In Indra Sawhney II Vs. Union of India & Ors., AIR 2000 SC 498, the Hon'ble Supreme Court reiterated the law laid down by it time and again that Articles 14 and 16 (1) of the Constitution of India provide for rule of equality which is the basic feature of the Constitution and, therefore, there can be no deviation from the principles enshrined therein while passing any order. Rule of equality is an antithesis of any kind of arbitrariness or private gain, whim or caprice of any individual. Even if the State has the discretionary power to issue executive instructions, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also "satisfy the mandatory requirement of the Statute." (Vide A.P. Aggarwal Vs. Government ( of N.C.T.) of Delhi & Ors., AIR 2000 SC 205. In Kumari Shrilekha Vidyarthi etc. etc. Vs. State of U.P. & Ors., AIR 1991 SC 537, the Apex Court held that every State act, in order to survive, must not be susceptible to vice of arbitrariness which is a crux of Article 14 of the Constitution and basis to the rule of law. Thus, the State cannot pass an order in favour of the petitioner discriminating others.

89- Whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot claim any sanctity in law, and there is no obligation on the part of the Court to sanctify such an illegal act. Wherever the statuary provision is ignored, the Court cannot become a silent spectator to such an illegal act, and it becomes the solemn duty of the Court to deal with the persons violating the law with heavy hands. (Vide R.N. Nanjundappa Vs. T. Thimmaiah & Anr., AIR 1972 SC 1767; B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors., AIR 1979 SC 1676; Delhi Development Horticulture Employees' Union Vs. Delhi Administration, Delhi & Ors., AIR 1992 SC 789; State of Orissa & Ors. Vs. Sukanti Mohapatra & Ors., AIR 1993 SC 1650; Jawahar Lal Nehru Krishi Vishwa Vidyalaya, Jabalpur, M.P. Vs. Bal Kishan Soni & Ors. (1997) 5 SCC 86; State of Himachal Pradesh Vs. Nodha Ram & Ors., AIR 1997 SC 1445; Ashwani Kumar & Ors. Vs. State of Bihar & Ors., AIR 1997 SC 1628; State of M.P.& Anr. Vs. Dharam Bir, (1998) 6 SCC 165; Municipal Corporation, Bilaspur & Anr. Vs. Veer Singh Rajput & Ors., (1998) 9 SCC 258; Nazira Begum Lashkar & Ors. Vs. State of Assam & Ors., AIR 2001 SC 102; Mrs. Dr. Chanchal Goyal Vs. State of Rajasthan, AIR 2003 SC 1713; M.D., U.P. Land Development Corporation & Anr. Vs. Amar Singh & Ors., AIR 2003 SC 2357; State of Haryana & Anr. Vs. Tilak Raj & Ors., AIR 2003 SC 2658; Haryana Tourism Corporation Ltd. Vs. Fakir Chand & Ors., AIR 2003 SC 4465; Sultan Sadik Vs. Sanjay Raj Subba & Ors., AIR 2004 SC 1377; and A. Umarani Vs. registrar, Co-operative Societies & Ors., 2004 AIR SCW 4462).

90- In Ramniklal N. Bhutta & anr. Vs. State of Maharashtra & ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. ...... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Art. 226.... indeed any of their discretionary powers."

91- In view of the above, we are of the considered opinion that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces in his office.

92- Learned Counsel for the petitioner has taken shelter of letter dated 2.3.1995 issued by the Joint Secretary, directing the Chief Engineer for completion of development work. The impugned letter does not authorize any way for the allotment of plot to the petitioner. Further the petitioner has taken reliance of the Uttar Pradesh State Control Over Public Corporation Act 1975, whereby the corporation has been directed to be guided by the directions on the question of policies, as may be given to it by the State Government. The question of allotment of the plot is not a matter of policy, secondly the direction to develop the site does not in any way create a right in favour of the petitioner to give him a right for allotment of the plot. The petitioner had also relied upon the judgments (1)- 2000(4) AWC 3361 Khurram Carpets Private Ltd. Versus State of U.P. & Others (2) Ugrasen Versus Gaziabad Development Authority (2003) 3 UPEBEC 2049 and argued that the direction given by the State Government is binding on the Lucknow Development Authority.

93- The interpretation of above citations does not create any right in favour of the petitioner for allotment of the plot. The principle laid down in the Act or the observations in the judgment of the Court simply says that the directions issued by the State Government from time to time are binding on the Corporation to follow it.

94- The learned Counsel for the petitioner has also relied on (1995) 5 SCC page 482 L.I.C. of India Versus Consumer Education and Research Centre and Others. The matter relates to the insurance of the person concerned and does not relate to the allotment of the land. Secondly, the observations of the Court says that in the field of contractual relation the State, its instrumentalities, should be just and fair. There is nothing on record to show arbitrariness or violation of Article 14 and 21 of the Constitution of India or unreasonableness in the order issued by the respondents.

95- In Erusian Equipment & Chemicals Ltd. v. State of West Bengal MANU/SC/0061/1974MANU/SC/0061/1974 : [1975]2SCR674 , the Court held that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods services etc.. This privilege arises because it is the Government which trading with the public and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. Privilege is a form of liberty as opposed to a duty. When public element is involved in the activities of the Government, then there should be fairness and equality. If the State does enter into a contract, it must do so fairly without discrimination and without unfair procedure. Exclusion of a member of the public from dealing, prevents him from entering into lawful contractual relations and discriminates him in favour of other people. Though the State is entitled to impose reasonable conditions but arbitrary conditions prevents entering into contractual relations with the State. The individual is entitled to fair and equal treatment with others. A duty to act fairly can be interpreted as meaning a duty to observe certain aspects of rules of natural justice.

96- In Saghir Ahmad v. State of U.P. MANU/SC/ 0110/ 1954MANU/SC/0110/1954 : [1955]1SCR707 , the Constitution Bench at the earliest buried fathom deep that the State is free to carry on trade or business in the same position as a private trader. In A. Sanjeevi Naidu v. State of Madras MANU/SC/ 0381/1970MANU /SC/ 0381 /1970 : [1970]3SCR505 , another Constitution Bench held that the acts of the authorised officers are the acts of the State itself and not as the delegates of the Government. In Ramana Dayaram Shetty v. International Airport Authority of India MANU/SC/0048/1979MANU / SC/0048/1979 : (1979)IILLJ217SC , another Constitution Bench held that in a welfare State in regulating and dispensing special services including contracts, the citizen derives rights or privileges by entering into favourable relations with the Government. The Government, therefore, cannot anchor its role as a private person. The exercise of the power or discrimination to award contract etc. must be structured by rational, relevant and non-discriminatory standards or norms. In Kasturi Lal Lakshmi Reddy v. State of J & K MANU/SC/0079/ 1980MANU/SC/0079/1980 : [1980]3SCR1338 , it was further held that every activity of the government has a public element in it and it must, therefore, be informed with reason guided by public interest. It cannot act in a manner which would benefit a private party at the cost of the State. In M.C. Mehta v. Union of India MANU/SC/0092/ 1986MANU/SC/0092/ 1986 : [1987]1SCR819 , another Constitution Bench held that it is dangerous to exonerate corporations from the need to have constitutional conscience which makes governmental agencies what their mien amenable to constitutional limitations, the Court must adopt such" standards "as against the alternative of permitting them to flourish as an imperium in imperio". It was further held that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. The Court has to evolve new principles and lay down new norms which arise in a highly industrialised economy, Therefore, when new challenges are thrown open, the law must grow as a social engineering to meet the challenges and every endeavour should be made to cope with the contemporary demands to meet socio-economic challenges under rule of law and have to be met either by discarding the old and unsuitable or adjusting legal system to the changing socio-economic scenario. Banjaman Cardozo has stated in his "Judicial Process" at p. 168, that "the great tides and currents which engulf the rest of men do not turn aside in their course and pass the Judges idle by".

97- Every action of the public authority or the person acting in public interest or its acts give rise to public element, should be guided by public interest. It is the exercise of the public power or action ' hedged with public element becomes open to challenge. If it is shown that the exercise of the power is arbitrary unjust and unfair, it should be no answer for the State its instrumentality, public authority or person whose acts have the insignia of public element to say that their actions are in the field of private law and they are free to prescribe any conditions or limitations in their actions as private citizens, simplicitor, do in the field of private law. Its actions must be based on some rational and relevant principles. It must not be guided by irrational or irrelevant considerations. Every administrative decision must be hedged by reasons.

98- If the action of the State is related to Contractual obligation or obligations arising out of the Court (contract sic) the Court may not ordinarily examine unless the action has some public law character attached to it. The Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. This is impossible to draw the line with procession and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances.

99- In Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay MANU/SC/0330/1989MANU/SC/ 0330/1989 : [1989]2SCR751 , it was held that the Corporation must act in accordance with certain constitutional conscience and whether they have so acted must be discernible from the conduct of such Corporations. Every activity of public authority must be in-formed by reasons and guided by the public interest. All exercises of discretion or power by public authority must be judged by that standard. In that case when the building owned by the port trust was ex-empted from the Rent Act, on terminating the tenancy for development when possession was sought to be taken, it was challenged under Article 226 that the action of the port trust was arbitrary and no public interest would be served by terminating the tenancy. In that context, this Court held that even in contractual relations the Court cannot ignore that the public authority must have constitutional conscience so that any interpretation put up must be to avoid arbitrary action, lest the authority would be permitted to flourish as imperium a imperio. Whatever be the activity of the public authority, it must meet the test of Article 14 and judicial review strikes an arbitrary action.

100- In Mahabir Auto Stores v. India Oil Corporation MANU/SC/0191/1990MANU/SC/0191/1990 : [1990]1SCR818 , it was held that the State when acting in its executive power, enters into contractual relations with the individual, Article 14 would be applicable to the exercise of the power. The action of the State or its instrumentality can be checked under Article 14. Their action must be subject to rule of law. If the governmental action even in the matter of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play, natural justice are part of the rule of law applicable in situation or action by State/instrumentality in dealing with citizens. Even though the rights of the citizens, therefore, are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play and natural justice, equality and non-discrimination. It is well settled that there can be "malice in law". It was also further held that whatever be the act of the public authority in such monopoly or semi-monopoly, it must be subject to rule of law and must be supported by reasons and it should meet the test of Article 14.

101- In the sphere of contractual relations the State, its instrumentality, public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or arbitrary in its decision. Duty to act fairly is pah of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty or obligation must be informed by reason and guided by the public interest.

102- In Kumari Shrilekha Vidyarthi v. State of U.P. MANU/SC/0504/1991MANU/SC/0504/1991 : AIR 1991 SC 537 , the Court in paragraph 22 pointed out that the private parties are concerned only with their personal interest but the public authority are expected to act for public good and in public interest. The impact of every action is also on public interest. It imposes public law obligation and impress with that character, the contracts made by the State or its instrumentality. "It is a different matter that the scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to the adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. However, to the extent, challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14. To this extent, the obligation is of a public character invariably in every case irrespective of there being any other right or obligation in addition thereto. An additional contractual obligation cannot divest the claimant of the guarantee under Article 14 of non-arbitrariness at the hands of the State in any of its actions". In Food Corporation of India v. Kamdhenu Cattle Feed Industries MANU/SC/0257/ 1993MANU/SC/ 0257/1993 : AIR1993SC1601 , this Court held that the mere reasonable or legitimate expectation of a citizen may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process". In Sterling Computers Ltd. v. M & N Publications Ltd. MANU/SC/0439/1993MANU/SC/0439/1993 : AIR 1996 SC 51 , it was held that even in commercial contracts where there is a public element, it is necessary that relevant considerations are taken into account and the irrelevant consideration discarded. In Union of India v. M/s. Graphic Industries Co., MANU/SC/0086/1995MANU/SC/0086/1995 : (1994) 5 SCC 398: 1994 AIR SCW 4617), this Court held that even in contractual matters public authorities have to act fairly; and if they fail to do so approach under Article 226 would always be permissible because that would amount to 'violation of Article 14 of the Constitution. The ratio in General Assurance Society Ltd. v. Chandumull Jain, (1966) 3 SCR 500: (MANU/SC/0180/1966MANU/SC/0180/1966 : AIR 1966 SC 1644), relied on by the appellants that tests laid therein to construe the terms of insurance contracts bears no relevance to determine the constitutional conscience of the appellant in fixing the terms and conditions and of their justness and fairness on the touchstone of public element. The arms of the High Court is not shackled with technical rules or of Procedure. The actions of the State, its instrumentality, any public authority or person whose actions bear insignia of public law element or public character are amendable to judicial review and the validity of such an action would be tested on the anvil of Article 14.

103- Here the question involved in the present matter is allotment of plot to the petitioner and the version of the respondents are that in spite of the repeated reminders, notices the petitioner has never deposited any amount to the account of L.D.A. for the allotment of the plot thus allotment of the plot was cancelled and intimated to the petitioner. So far as the agreement between the Samiti and L.D.A. is concerned, if we examine the contents of the agreement, first, it is not binding on the respondents in relation to subject matter of this writ petition, secondly, there are several conditions and the petitioner has not fulflled any material to show that the Samiti has fulfilled the terms of the agreement, thirdly, if there is any violation or non fulfillment of the conditions of the agreement then the person aggrieved have right to file a regular suit for performance of the agreement. Since the land has been acquired by the State and handed over to the L.D.A. thus after the acquisition of the land, the possession has been taken by the L.D.A. without any condition and right title and interest of the property concerned is vested in the respondents.

104- Learned Counsel has further submitted that in terms of the agreement the land has been handed over to the Samiti and it was the duty to allot the plot to its members. There is a provision in Clause 8(a) that 25% of the amount as an advance shall be deposited within 30 days, condition no.-8(b)- provides the payment of balance amount in six equal quarterly installments and condition no.8(c)- provides the right of interest to be payable in case of non payment of the installment. The fact that the land was acquired in accordance with Rules and award was declared by the land acquisition officer on 8.1.1988, was known to all including the petitioner and thus in accordance with the provisions as contained in the land acquisition act and discussed above no right title interest is said to be accrued in favour of the petitioner. Condition no.-5 provides the payment of rupees 425 per sq. metre to the L.D.A. but the same has not been complied and or nothing has been stated in the form of documents that the said amount has been paid. It has also been argued that the petition is not maintainable on the ground that "Sahkari Samiti" has not been arrayed as a party in the present petition. As per averments made in paragraph nos.- 8,9, and 10 of the counter affidavit, the petitioner was allotted the plot on her own request by L.D.A. and further vide letter dated 16.1.2008 and 29.9.2008 she was required to deposit a sum of rupees 17,36,608/- but she failed to deposit the said amount and by means of the order dated 31.3.2009 the allotment in favour of the petitioner was cancelled and she was communicated. The petition is said to be not maintainable on the ground of delay and laches also.

105- The applicant had herself reprobated her right if there was any right in her favour against the society. A party cannot be permitted to "blow hot-blow cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity, however, it must not be applied in such a manner, so as to violate the principles of, what is right and, of good conscience. (Vide: Nagubai Ammal and Ors. v. B. Shama Rao and Ors. MANU/SC/0089/1956MANU/SC/0089/1956 : AIR 1956 SC 593; C.I.T. Madras v. Mr. P. Firm Muar MANU/SC/0143/1964MANU/SC/0143/1964 : AIR 1965 SC 1216; Ramesh Chandra Sankla etc. v. Vikram Cement etc. MANU/SC/7810/2008MANU/SC/7810/2008 : AIR 2009 SC 713; Pradeep Oil Corporation v. Municipal Corporation of Delhi and Anr. MANU/SC/0414/2011MANU/SC/0414/2011 : AIR 2011 SC 1869; Cauvery Coffee Traders, Mangalore v. Hornor Resources (International)Co.Limited MANU/ SC/1079/ 2011MANU/SC/ 1079/ 2011 : (2011) 10 SCC 420; and V. Chandrasekaran and Anr. v. The Administrative Officer and Ors. MANU/SC/0751/ 2012MANU/ SC/0751/2012 : JT 2012 (9) SC 260.

106- Thus, it is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppels in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.

107- A party cannot claim anything more than what is covered by the terms of contract, for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being a creature of an agreement between two or more parties, has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the court to make a new contract, however is reasonable, if the parties have not made it themselves. It is to be interpreted in such a way that its terms may not be varied. The contract has to be interpreted without giving any outside aid. The terms of the contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely. (Vide: United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal MANU/SC/0803/2004MANU/SC/0803/2004 : AIR 2004 SC 4794; Polymat India P. Ltd. and Anr. v. National Insurance Co. Ltd. and Ors. MANU/SC/1019/2004MANU/SC/1019/2004 : AIR 2005 SC 286).

108- In DLF Universal Ltd. and Anr. v. Director, T. and C. Planning Department Haryana and Ors. MANU/SC/1133/ 2010MANU /SC/ 1133/2010 : AIR 2011 SC 1463, the Court held:

" It is a settled principle in law that a contract is interpreted according to its purpose. The purpose of a contract is the interests, objectives, values, policy that the contract is designed to actualise. It comprises joint intent of the parties. Every such contract expresses the autonomy of the contractual parties' private will. It creates reasonable, legally protected expectations between the parties and reliance on its results. Consistent with the character of purposive interpretation, the court is required to determine the ultimate purpose of a contract primarily by the joint intent of the parties at the time the contract so formed. It is not the intent of a single party; it is the joint intent of both parties and the joint intent of the parties is to be discovered from the entirety of the contract and the circumstances surrounding its formation. As is stated in Anson's Law of Contract, "a basic principle of the Common Law of Contract is that the parties are free to determine for themselves what primary obligations they will accept...Today, the position is seen in a different light. Freedom of contract is generally regarded as a reasonable, social, ideal only to the extent that equality of bargaining power between the contracting parties can be assumed and no injury is done to the interests of the community at large." The Court assumes "that the parties to the contract are reasonable persons who seek to achieve reasonable results, fairness and efficiency...In a contract between the joint intent of the parties and the intent of the reasonable person, joint intent trumps, and the Judge should interpret the contract accordingly."

109- Having considered the rival contentions of learned Counsel for the petitioner as well as learned Counsel for the respondents, we are of the view that no right title interest have been accrued in favour of the petitioner regarding allotment of the plot as stated in the petition. Petitioner has failed to establish the case and failed to prove that she had deposited any amount regarding value of the plot for allotment thus she is not entitled for allotment of plot of L.D.A. The fact reveals that on the request of the petitioner, she was communicated for allotment of the plot subject to condition of payment of an amount which is more than 17 lakhs, but the same had not been deposited by the petitioner and thus the proposal for allotment of the plot in favour of the petitioner have been cancelled by the L.D.A. and the same had been communicated to the petitioner. The petition is also not maintainable on the ground of delay and laches.

110- The petition lacks merit and deserves to be dismissed. Accordingly, the petition is dismissed. There shall be no order as to costs.

Dated: 04th July 2017

Jyoti/-

              (Sheo Kumar Singh-I, J.)             (Shri Narayan Shukla, J.)