Allahabad High Court
Hirendra Pratap Mall vs State Of U.P. And 3 Others on 9 July, 2019
Bench: Sudhir Agarwal, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 34
Case :- WRIT - C No. - 21684 of 2019
Petitioner :- Hirendra Pratap Mall
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Chandra Prakash Misra,Sushil Kumar Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Sudhir Agarwal,J.
Hon'ble Rajeev Misra,J.
1. Heard Sri Sushil Kumar Mishra, learned counsel for petitioner and learned Standing Counsel for State-respondent.
2. This is a thoroughly misconceived and ill advised writ petition ought not have been filed by petitioner for increasing rent of his house let out to respondent-department. Writ petition has been filed seeking a mandamus commanding respondents to increase the rental rate of house of petitioner already agreed between the parties with effect from 01.01.2018.
3. Admittedly, there is already an agreement between the parties giving particular rate in a rented building and for increasing rent fixed by way of a contract, we repeatedly asked learned counsel for petitioner as to how such writ petition is maintainable, and that too without breach of contract between the parties with respect to lease and lease rent, but no argument could be advanced on this aspect.
4. It is settled principle of law that in contractual matters, writ does not lie. Even if, there is breach of contract, remedy lies in common law by filing suit claiming damages and not by invoking writ jurisdiction. Considering similar issue, Supreme Court in Bareilly Development Authority Versus Ajai Pal Singh, AIR 1989 SC 1076, said as under:
"19. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty's case (1979) IILLJ 217 SC has erroneously held:
"It has not been disputed that the contesting opposite party is included within the term 'other authority' mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness."
20. This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty's (supra) case there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly installments to be paid, the 'authority' or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter-se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field.
21. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple Radhakrishna Agarwal Vs. State of Bihar [1977] 3 SCR 249, Premji Bhai Parmar Vs. Delhi Development Authority [1980] 2 SCR 704 and D. F. O. v. Biswanath Tea Company Ltd. [1981] 3 SCR 662.
22. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly installments and giving directions in the writ petitions as prayed for."
5. The Court said that if there is a dispute in regard of terms and conditions of contract, remedy lies in common law and not by filing of writ petition under Article 226 of the Constitution of India. Petitioner, therefore, has remedy in common law and relief as claimed by petitioner, cannot be enforced by way of writ petition under Article 226 of the Constitution.
6. In view of above, this writ petition lacks merit. Dismissed with cost Rs.5000/-.
Order Date : 09.07.2019
Manish Himwan
