Telangana High Court
Kotagiri Ajay Kumar vs The State Of Telangana on 21 February, 2024
Author: T. Vinod Kumar
Bench: T.Vinod Kumar
THE HON'BLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION No.4125 OF 2024
Between:
Kotagiri jay Kumar
.........Petitioner
And
The State of Telangana, rep., by its Principal Secretary (MAUD),
Telangana Secretariat, Hyderabad and two others.
.......Respondents
Date of Judgment pronounced on : 21.02.2024
HONOURABLE SRI JUSTICE T.VINOD KUMAR
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes
to Law Reporters/Journals:
3. Whether His Lordships wishes to see the fair copy : Yes/No
Of the Judgment?
___________________
T. VINOD KUMAR, J
2
THE HON'BLE SRI JUSTICE T.VINOD KUMAR
WRIT PETITION No.4125 OF 2024
% 21-02-2024
# Kotagiri jay Kumar
......... Petitioner
Versus
$ The State of Telangana, rep., by its Principal Secretary (MAUD),
Telangana Secretariat, Hyderabad and two others.
....... Respondents
< GIST:
> HEAD NOTE:
!Counsel for the Petitioner : M/s. Kowlur Archana
^Counsel for the respondents : Leaned Government Pleader for
MA&UD for respondent No.1 and
Sri Jagan Madhav Rao, learned
Standing Counsel for respondent
Nos.2 and 3
? Cases referred
1 (2015) 7 SCC 728
2 2021 SCC OnLine SC 562
3 (2003) 7 SCC 410
4 (2006) 10 SCC 236
3
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.4125 OF 2024
ORDER:
This Writ Petition is filed with the following prayer:
"to issue Writ Order or direction more particularly
one in the nature of Writ of Mandamus declaring the
action of the respondents more particularly respondent
No 2 in passing order vide Proc Roc No 2618/A1/2022-
24 dated 03/02/2024 which was communicated to the
petitioner on 07/02/2024 and subsequently seizing the
petitioner's leased premises on 13/02/2024 ie., Anand
Bhavan Grand Restaurant Anand Bhavan Hotel Chat
Mantra (Food Stall) at TOWN HALL, admeasuring 1420.
58 Sq Yards, having carpet Area of 12,785.24 Sq feet
along with open area of 5489.99 Sq yards the total
extent of land admeasuring 6910.57 Sq. yards, situated
at opposite to Municipal Park, Jagtial Town & District,
without following due procedure of law, in contravention
to the covenants of the Lease Deed dated 26/02/2022,
as illegal arbitrary in violation of Articles 14, 21 and
300A of Constitution of India, in violation of principles of
natural justice besides being in violation of the
Municipalities Act and to consequently set aside order
passed by the respondent No.2 vide Proc Roc No
2618/A1/202224 dated 03/02/2024, including the
direction to the respondent No.2 herein to remove the
seal/seizure forthwith in respect of the petitioner's
leased premises i.e., Anand Bhavan Grand Restaurant
Anand Bhavan Hotel Chat Mantra (Food Stall) at TOWN
HALL admeasuring 1420.58 Sq Yards having carpet
Area of 12,785.24 Sq feet along with open area of 5489.
99 Sq yards the total extent of land admeasuring 6910.
57 Sq yards, situated opposite to Municipal Park Jagtial
Town and District"
2. Heard learned counsel for the petitioner, learned
Government Pleader for MA&UD, Sri Jagan Madhav Rao,
learned Standing Counsel appearing on behalf of respondent
Nos. 2 and 3 and with the consent of the Counsel appearing for
the parties, the Writ Petition is taken up for hearing and
disposal at admission stage.
3. Petitioner contends that he was granted lease of the
property which is popularly known as 'town hall' for a period of
5 years under registered rent/lease agreement dated
26.02.2022 on the terms and conditions agreed upon; that while
the petitioner is carrying on its activities in the town Hall as
agreed upon under the agreement, the 2nd respondent had
issued notice dated 22.01.2024 claiming that the petitioner has
violated various covenants of the agreement and called upon the
petitioner to submit explanation within 7 days from the date of
receipt of the notice; that the petitioner submitted his
reply/explanation dated 29.01.2024; and that the 2nd
respondent without considering the explanation/reply in its
correct perspective had issued the proceeding dated 03.02.2024
and had seized the premises/property leased to it.
4. Petitioner further contends that the action of the 2nd
respondent in seizing the subject premises leased to it on the
ground of alleged violations of the covenants of the agreement
are all invented to cause hurdles, the business activity of the
petitioner on account of change of Government; and that the
petitioner is conducting its business activities in the subject
premises as permitted under the agreement.
5. Petitioner further contends that as per the covenants of
the lease deed, he is permitted to set up stalls to reflect the
culture and traditions of Telangana and based on the existence
of such covenant in the agreement, he had set up a hotel by
obtaining trade license from the concerned Municipal
authorities. Petitioner further contends that the 2nd respondent
authority was fully aware of the petitioner carrying on the
business of opening and running of restaurant in the aforesaid
premises from the commencement of lease term itself and
initiation of the action of the present nature, all of a sudden is
motivated.
6. Petitioner further contends that though the impugned
proceeding issued states that an Appeal to be preferred there
against to the District collector, Jagtial or RDMA, Warangal, the
same would not preclude the petitioner from invoking the
extraordinary jurisdiction of this Court under Article 226 of the
Constitution of India as the illegal and high handed acts of the
present nature can be corrected in writ proceedings and mere
existence of alternate remedy is not a bar.
7. Per contra, learned Standing Counsel appearing on behalf
of respondent No.2 contends that the petitioner had breached
the covenants of the agreement in all respects and he is not
entitled to maintain the present Writ Petition.
8. Learned Standing Counsel while refuting the claim of the
petitioner of being subjected to harassment on account of
change of Government would submit that even in January 2023
much before the change of Government in December, 2023, the
authorities issued notice for violation of terms of the lease deed,
the petitioner had approached this Court by filing a Writ
Petition vide W.P. No.1079 of 2023 and thereafter once again
vide W.P. No.2725 of 2024 and the present Writ Petition is 3rd in
series, and that the said plea is taken only to cause prejudice
against the respondent.
9. Learned Standing Counsel further contends that the lease
of the town Hall was granted to the petitioner for a period of 5
years to run the same for the purpose it is meant to be used;
that the town Hall has been constructed and intended to be
used for providing a facility for holding meetings, exhibitions,
functions and also Government programs; that the petitioner
contrary to the basic object and purpose of the town Hall has
changed the total nature of the property into a restaurant by
running multiple outlets as per petitioner's own averments in
the writ affidavit; and that the petitioner is not providing any
facility for use of the town Hall as a place provided for meetings,
exhibition to showcase products of Cottage Industries,
Handlooms and in Educational matters.
10. Learned Standing Counsel further contends that going by
the writ affidavit averments the same show that the petitioner
instead of using the property leased as town Hall, had converted
the premises more into a eatery / food court.
11. I have taken note of the contentions urged.
12. Before adverting to the contentions of the parties, it would
be reminiscent to make a reference to the pre-independence
days in order to understand the importance of Town Halls,
particularly to 07.08.1905 when a formal proclamation of
"Swadeshi Movement" was made with the passing of the
'Boycott' resolution in a meeting at the Calcutta Town Hall giving
a new dimension and impetus to the freedom struggle.
13. It is also not long ago in the post-Independence era, that
the Town Halls which exist at the District or Taluq level were
used for conducting Science and Educational Fairs, whereat
young students from various schools in the District and Taluq
used to show case their talent and innovations to receive
appreciation helping them to excel in their academic pursuits.
In some places the Town Halls also housed libraries, the Asiatic
Society of Mumbai is one such Library is one such. Such
facilities had raised and honed brilliant minds, and who had in
turn shaped our country. That apart, such Town Halls also play
a major role in promoting cottage and handloom industries
along with local produce and products.
14. It is unfortunate to note that we are living in a day where
the State and its instrumentalities are oblivious to the purpose
behind creation of Town Halls, and are ignoring the Socialist
approach which it is required to adopt, in the name of revenue
generation to take up public works, are converting such
facilities into commercial hubs rampantly, while the younger
generation unmindful of the past and also what is store in
future are considering such commercial facilities created by the
State and its instrumentalities as the most happening place for
them to 'chill'.
15. Turning to the facts of the case, the grant of Lease of the
Town Hall by the 2nd respondent in favour of the petitioner
under the Agreement dt. 26.02.2022 is purely contractual and
private and does not involve any element of public law. Though
the 2nd respondent by exercising power under Section 55 of
Telangana Municipalities Act, 2019 (for short 'Act') had entered
into agreement with the petitioner, that by itself would not
automatically lead to the conclusion of involvement of public
law or public law issue.
16. Though as per Section 52(9) of the Act, it is the duty and
responsibility of the Commissioner to provide for amenities and
facilities like community halls, the agreement at hand was
neither entered into for the purpose of maintaining nor
operating the town hall on behalf of respondent municipality as
provided under section 52(9) of the Act to claim involvement of
element of public law. On the contrary it is a contract purely of
commercial nature where the municipality pursuant to a
resolution passed by the council has leased the subject property
on an agreed consideration payable by the petitioner as a lessee.
17. If the above aspect of law is taken into consideration, the
agreement under which the immovable property of the 2nd
respondent has been leased out would have to be construed as
like any commercial contract governed by the provisions of
Indian Contract Act, 1872. Once, the Agreement entered into
between the petitioner and 2nd respondent is considered as
contract like any other contract, for the enforcement of the
covenants of the contract or for any breach thereof, the parties
have to work out their remedies under civil law. Thus, a mere
allegation that the subject premises was seized by the
authorities under the capacity of the state would not by itself
convert the inherent nature of the disputes. Resultantly, the
same would not be amenable to writ jurisdiction.
18. The Supreme Court in Joshi Technologies
International Inc v. Union of India 1, had brought out the
distinction between the private and public law and held as
under:
"70.8. If the contract between private party and the
State/instrumentality and/or agency of the State is under the
realm of a private law and there is no element of public law, the
normal course for the aggrieved party, is to invoke the remedies
provided under ordinary civil law rather than approaching the High
Court under Article 226 of the Constitution of India and invoking its
extraordinary jurisdiction.
70.9. The distinction between public law and private law
element in the contract with the State is getting blurred. However, it
has not been totally obliterated and where the matter falls purely
in private field of contract, this Court has maintained the position
that writ petition is not maintainable. The dichotomy between
public law and private law rights and remedies would depend on
the factual matrix of each case and the distinction between the
public law remedies and private law field, cannot be demarcated
with precision. In fact, each case has to be examined, on its facts
whether the contractual relations between the parties bear insignia
of public element. Once on the facts of a particular case it is found
that nature of the activity or controversy involves public law
element, then the matter can be examined by the High Court in writ
petitions under Article 226 of the Constitution of India to see
whether action of the State and/or instrumentality or agency of the
State is fair, just and equitable or that relevant factors are taken
into consideration and irrelevant factors have not gone into the
decision-making process or that the decision is not arbitrary.
70.10. Mere reasonable or legitimate expectation of a citizen, in
such a situation, 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 requirements of due
consideration of a legitimate expectation forms part of the principle
of non-arbitrariness.
70.11. 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
adjudication of their rights by resort to remedies provided for
adjudication of purely contractual disputes.
71. Keeping in mind the aforesaid principles and after
considering the arguments of the respective parties, we are of the
1 (2015) 7 SCC 728
view that on the facts of the present case, it is not a fit case where
the High Court should have exercised discretionary jurisdiction
under Article 226 of the Constitution. First, the matter is in the
realm of pure contract. It is not a case where any statutory contract
is awarded."
19. Further, in the facts of the present case, while the
petitioner claims that there was no breach of the covenants of
the Agreement, the 2nd respondent on the other hand contended
that the petitioner by his own admission had stated to be
running multiple food joints in the subject premises in the name
of 'Anand Bhavan Hotel', 'Anand Bhavan Grand Restaurant',
'Chat Mantra', apart from running 'New Grand Mandi & Biryani
Barbie Que" at the entry point of the Town Hall which has not
been disclosed and running of these food outlets cannot be
considered as Telangana eateries and stalls reflecting the
culture and traditions of "Telangana". The said claims by each
of parties not only involves the expression of intent of the
parties entering into contract, but also involves factual aspects
which are in dispute between the parties.
20. It is trite law that in writ jurisdiction under Article 226 of
the Constitution of India, the Court cannot venture into
disputed questions of fact. (See: Shubhas Jain Vs.
Rajeshwari Shivam and Ors 2).
21. It is equally well settled that Courts cannot decide matters
relating to s breach of contract in exercise of powers conferred
under Article 226 of the Constitution of India. The Hon'ble
Supreme Court in National Highway Authority of India v.
Ganga Enterprises and others 3, observed as under:
"7. The Respondent then filed a Writ Petition in the High Court for
refund of the amount. On the pleadings before it, the High Court
raised two questions viz. (a) whether the forfeiture of security
deposit is without authority of law and without any binding
contract between the parties and also contrary to Section 5 of the
Contract Act and (b) whether the writ petition is maintainable in a
claim arising out of a breach of contract. Question (b) should have
been first answered as it would go to the root of the matter. The
High Court instead considered question (a) and then chose not to
answer question (b). In our view, the answer to question (b) is clear
. It is settled law that disputes relating to contracts cannot
be agitated under Article 226 of the Constitution of India. It
has been so held in the cases of Kerala State Electricity
Board v. Kurien E. Kalathil MANU/SC/0435/2000 :
AIR2000SC2573 ,State of U.P. v. Bridge & Roof Co. (India)
Ltd. MANU/SC/0969/1996 : AIR1996SC3515 andB . D . A . v .
Ajai Pal Singh MANU/SC/0058/1989 : [1989]1SCR743, This is
settled law. The dispute in this case was regarding the terms of
offer. They were thus contractual disputes in respect of which a
Writ Court was not the proper forum. Mr. Dave however relied upon
the cases of Verigamio Naveen v. Government of A. P.
MANU/SC/0570/2001 : AIR2001SC3609 and Harminder Singh
Arora v. Union of India MANU/SC/0148/1986 : [1986]3SCR63 .
These however are cases where the Writ Court was enforcing a
statutory right or duty. These cases do not lay down that a Writ
2 2021 SCC OnLine SC 562
3 (2003) 7 SCC 410
Court can interfere in a matter of contract only. Thus on the ground
of maintainability the Petition should have been dismissed."
22. This principle was reiterated in the case of Noble
Resources Ltd. Vs. State of Orissa and Ors 4.
23. On a conspectus of the aforesaid position of law and the
issue at hand the following conclusions are to be necessarily
arrived at:
1. The disputes arising under the contract of the present
nature would not be amenable to writ jurisdiction; and
2. Since the Writ Petition filed also involves disputed factual
aspect, the writ is not maintainable.
24. In view of the above, this Court is of the considered view
that the Writ Petition as filed is not maintainable and the
petitioner is not entitled for grant of any relief.
25. However taking note of the concession given by the 2nd
respondent in the impugned order by filing of appeal to the
District Collector or to RDMA, Warangal, this Court is of the
view that though an Appeal is not strictly maintainable under
the provisions of the Act, the petitioner can seek the revision of
the impugned order passed by the 2nd respondent by
approaching the District Collector since the said authority is
4 (2006) 10 SCC 236
subject to the jurisdiction of the District Collector under Section
53(5) of the Act, if he is so advised or else he is at liberty to
work-out his remedies in civil law.
26. Subject to the above observations, the Writ Petition is
disposed of. It is made clear that this Court has not expressed
any opinion on the merits of the matter.
As a sequel, miscellaneous petitions pending if any shall
stand closed.
___________________
Date: 21.02.2024 T. VINOD KUMAR, J
Note: L.R. copy to be marked.
B/o
MRKR/VSV
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION No.4125 OF 2024
21.02.2024
MRKR/VSV
