Telangana High Court
M/S Platina Properties And Projects ... vs The State Of Telangana And 2 Others on 31 July, 2024
Author: T.Vinod Kumar
Bench: T.Vinod Kumar, P.Sree Sudha
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
AND
THE HON'BLE SMT JUSTICE P.SREE SUDHA
Writ Petition No.20212 of 2019
ORDER:
(per Hon'ble Sri Justice T.Vinod Kumar)
This Writ Petition is filed with the following prayer:
'... to issue an appropriate writ, order or direction; more
particularly one in the nature of writ of mandamus,
declaring G.O.Rt.No.120 dated 09.03.2018 issued by
Respondent No.1 Granting relaxation of rules issued in
G.O.Ms.No.63 Finance (EXPR.PW) Department dated
18.04.2011 from 01.03.2018, instead of the agreed period
of 01.04.2016 to 31.03.2019, as illegal, arbitrary and
unconstitutional and violative of the petitioner's rights
under Art.14 and 19(1)(g) of the Constitution apart from
being contrary to the rental agreement dated 01.04.2003
and subsequent amendment agreements and to set aside
the same and consequently direct Respondent No.2 and 3
to forthwith make payment of rental arrears due @Rs.25/-
per sq/feet per month From 01.04.2016 to 31.03.2019 for
the schedule premises which has been calculation to be
1,18,03,094/- plus an interest of 18% percent and pass
such order or other orders as Hon'ble Court deems fit and
proper in the circumstances of the case.'
2. Heard Sri A. Venkatesh, learned Senior Counsel
appearing for Ms. Sri Ranga Poojitha, learned counsel
appearing for the petitioner, and Sri L. Venkateshwar Rao,
learned Special Standing Counsel appearing for the
respondents and perused the record.
Contentions of the petitioner:
3. Petitioner contends that it is an Infrastructure
Company engaged in the business of construction, real
estate and infra projects; that it is the owner of a premises
bearing Door No.5-4-435, Nampally Station Road,
Hyderabad, comprising of 5 floors in an area of 49,003.34
square feet; that the 2nd respondent during the year 2003
approached the petitioner to lease out the aforesaid
premises to it; that in pursuance thereto a rental
agreement dated 01.04.2003 was entered into with the 2nd
respondent; that the initial lease period was for a period of
10 years viz., till 30.04.2013; that the rent payable was
agreed to be in a sum of ₹12/- per square feet (Rs.7/- per
square feet towards rentals and Rs.5/- per Square feet
towards fixtures and fittings); and that as per the terms of
the rental agreement, the rent payable would be enhanced
at the rate of 5% for every 2 years.
4. Petitioner further contends that during the currency
of the rental agreement entered into by the 2nd respondent
with it, whereunder the 2nd respondent was paying rent at
Rs.12/- per square feet with the proportionate
enhancement by 5% for every 2 years, the State
Government had issued G.O.Ms.No.63 dated 18.04.2011,
whereunder the rents payable to private buildings occupied
by Government Departments fixed under G.O.Ms.No.35
dated 27.02.1997 had been revised and in respect of
buildings within the Greater Hyderabad Municipal
Corporation limits has been fixed at Rs.10/- per square
feet.
5. Petitioner further contends that on the issuance of
G.O.Ms.No.63 and seeking to make it applicable to the
rental agreement entered into by the 2nd respondent with
the petitioner, it had approached the 3rd respondent
authority and sought for relaxation of the application of
G.O.Ms.No.63 to the rental agreement dated 01.04.2003
entered into with the 2nd respondent, which was valid for a
period of 10 years; and that after deliberations, the same
was agreed to by the respondents and relaxation from the
application of G.O.Ms.No.63 was granted, as a result of
which, the 2nd respondent continued to pay the rent for the
subject premises at the approved rate, as enhanced by 5%
for every 2 years.
6. Petitioner further contends that on expiry of the
rental agreement of 10 years i.e. 30.04.2013, the term of
the rental agreement dated 01.04.2003 was extended for a
further period of one year from 01.05.2013 to 30.04.2014,
on the same terms and conditions contained in the rental
agreement dated 01.04.2003; and that similar extensions
were granted from 01.05.2014 to 30.04.2015, 01.05.2015
to 30.09.2015 and 01.10.2015 to 31.03.2016.
7. Petitioner contends that since the rent of the
similarly situated commercial buildings in the vicinity was
higher, it had approached respondent authorities and
submitted representation on 20.02.2015 seeking
enhancement of rent to Rs.26/- per square feet; and that
the same was followed up by letters dated 14.08.2015 and
20.10.2016.
8. Petitioner further contends that though the term of
the rental agreement was extended from 01.04.2016 to
31.03.2017 and again from 01.04.2017 to 31.03.2018 with
the rent payable at the rate of Rs.16/- per square feet, the
said rate was the rent payable as per the terms of the
rental agreement dated 01.04.2003 with the enhancement
of 5% every 2 years; and that while renewing the rental
agreement, it had been specifically agreed that the renewal
of rental agreement for the period from 01.04.2016 to
31.03.2019 is pending before the 3rd respondent for
approval with a request for enhancement of rent at the rate
of Rs.26/- per square feet; and that the petitioner as lessor
is entitled to give a revised agreement for the complete
period and is entitled to claim the difference rate of rent
from the 2nd respondent.
9. Petitioner contends that notwithstanding the renewal
of rental agreement from 01.04.2016 onwards year-on-year
basis with the clear understanding that the petitioner is
seeking for enhancement of rent payable at the rate of
Rs.26/- per square feet, the 1st respondent while granting
relaxation of rules issued in G.O.Ms.No.63, in respect of
the petitioner's building occupied by the 2nd respondent,
vide G.O.Rt.No.120 dated 09.03.2018, however, had given
it prospective effect w.e.f. 01.03.2018 as against the claim
of the petitioner of his entitlement to receive the rent at the
rate of Rs.26/- per square feet, w.e.f. 01.04.2016.
10. Petitioner further contends that the respondents, in
particular the 2nd and 3rd respondents, while seeking
renewal of the rental agreement from 01.04.2016 had
promised to the petitioner of getting relaxation as to the
applicability of G.O.Ms.No.63 with enhanced rental payable
at the rate of Rs.26/- per square feet, are thus, estopped
from issuing G.O.Rt.No.120 from a prospective date; that
there is no basis for the respondents to make the
G.O.Rt.No.120 applicable from 01.03.2018; and that the
aforesaid action of the respondent in changing its position,
is causing loss to the petitioner, apart from the petitioner's
fundamental rights under Articles 14 and 19(1)(g) of the
Constitution of India being violated.
11. Petitioner, by contending as above, has formulated
the following proposition of law for consideration of this
Court:
"I. Where one party has by his words or conduct made
to the other a clear and unequivocal promise which is
intended to create legal relations or affect a legal
relationship to arise in the future, knowing or intending that
it would be acted upon by the other party to whom the
promise is made and it is in fact so acted upon by the other
party, the promise would be binding on the party making it
and he would not be entitled to go back upon it, if it would
be inequitable to allow him to do so having regard to the
dealings which have taken place between the parties, and
this would be so irrespective of whether there is any pre-
existing relationship between the parties or not. [paras 8 &
14]
II. For attracting the doctrine of promissory estoppels
what is necessary is only that the promisee should have
altered his position in relying on the promise. It is not
necessary that he should suffer any detriment as well.
[para 33]
III. In applying doctrine of promissory estoppels to the
Government, no distinction can be made between the
exercise of a sovereign or governmental function and a
trading or business activity of the Government. [paras 27,
29 & 33]
...
IV. The Government is not exempt from liability to carry
out the representation made by it as to its future conduct
and it cannot on some undefined and undisclosed ground of
necessity or expediency fail to carry out the promise
solemnly made by it, nor claim to be the judge of its own
obligation to the citizen on an ex parte appraisement of the
circumstances in which the obligation has arisen.
...
V. Public bodies are as much bound as private
individual to carry out representations of facts and promises
made by them, relying on which other persons have altered
their position to their prejudice. [para 12]
VI. A Public body is not exempt from liability to carry out
its obligation arising out of representations made by it
relying upon which a citizen has altered his position to his
prejudice.
...
VII. Conditions required to be satisfied, for invocation of
promissory estoppels against Government - (i) When it would
be unconscionable on the part of Government to get away
without fulfilling its promise; and (ii) when no other
consideration of overwhelming public interest exists in order
that Government be justified in resiling from its promise.
...
VIII. Alternative Remedy not to operate as a bar in cases,
where the writ has been filed for the enforcement of any
Fundamental Rights or where there has been a violation of
the principle of natural justice or where the order or
proceedings are wholly without jurisdiction or the vires of an
Act is challenged.
...
IX. If a governmental action even in the matters of
contract, fails to satisfy the test of reasonableness, the same
would be unreasonable and subject to Judicial Review.
...
X. Every action of the State, must be informed by
reason. In appropriate cases, actions uninformed by reason
may be questioned as arbitrary in proceedings under Article
226 or Artile 32 of the Constitution.
...
12. In support of the above contentions urged and the
propositions raised, reliance is placed on the decisions of
the Hon'ble Supreme Court in M/s. Motilal Padampat
Sugar Mills Co.Ltd. v/s. State of Uttar Pradesh 1; Union
of India v/s. Godfrey Philips India Ltd. 2; Union of India
v/s. Indo-Afghan Agencies Ltd. 3; Century Spinning and
Manufacturing Company Ltd. v/s. The Ulhasnagar
Municipal Council 4; Manuelsons Hotels Private Limited
v/s. State of Kerala 5; Whirlpool Corporation v/s.
1 (1979) 2 SCC 409
2 (1985) 4 SCC 369
3 (1968) 2 SCR 366
4 1970 (1) SCC 582
5 (2016) 6 SCC 766
Registrar of Trade Marks, Mumbai 6; Mahabir Auto
Stores v/s. Indian Oil Corporation 7; and
M/s.Dwarkadas Marfatia and Sons v/s. Board of
Trustees of the Port of Bombay 8.
Contentions of the respondents:
13. Counter affidavit on behalf of 2nd respondent is filed.
14. By the counter affidavit filed the respondent denied
the writ averments, except those which are specifically
admitted. It is contended by the 2nd respondent that the
clause in the original rental agreement dated 01.04.2003
under which the respondent had agreed to pay rent @ Rs.
12/- per Square Feet, itself mentions that the agreed rent
was subject to revision of rent by the Government from
time to time, as indicated in clause 1 of the rental
agreement; that the agreement also provided that
enhancement was also subject to rules framed by the
Government from time to time; and that having regard to
6 (1998) 8 SCC 1
7 (1990) 3 SCC 752
8 (1989) 3 SCC 293
the covenants of the agreement, it was clearly agreed that
Government may revise the rent leaving discretion to the
Government, with respect to authority and power to fix the
rent without participation of the petitioner.
15. By the counter affidavit, it is also contended that the
petitioner should not be permitted to invoke the
extraordinary jurisdiction of this Court under Article 226 of
the Constitution of India without taking recourse to the
alternative remedy and should not be permitted to
circumvent the said alternative remedy available in law.
16. The 2nd respondent further contended that though
the petitioner originally sought for enhancement of rent to
Rs.26/- per square feet, it had agreed for enhancement of
rent of Rs.25/- with the condition of the respondent taking
on rent the additional area of 4,200 square feet also, as a
result of which, the terms of the rental agreement dated
01.04.2003 stood modified. On behalf of respondents, it is
further contended that as the petitioner had agreed for rent
of Rs.25/- per square feet, with the additional area of
4,200 square feet, the same was subject to approval of 1st
respondent and by considering the proposal sent by the 3rd
respondent, G.O.Rt.No.120 was issued, w.e.f. 01.03.2018
including the additional area and as such no reliance can
be placed on the terms of the rental agreement initially
entered into, nor can it be stated that the petitioner had
altered or changed its position on account of promise made
by the respondent. On the other hand, on account of the
respondent taking additional area of 4,200 square feet, it
had benefited the petitioner and the principle of promissory
estoppel does not stand attracted.
17. Learned standing counsel further contended that the
petitioner having initially sought for enhancement of rent
for the period 01.04.2016 to 31.03.2019, however on the
respondent authority issuing G.O.Rt.No.120 dated
09.03.2018 had entered into fresh agreement for the period
commencing from 01.03.2018 and thus, a new contract
has come into force, by giving up his claim for the earlier
period and had issued the notice dated 05.08.2019 (sent
on 09.08.2019) only as an afterthought.
18. The petitioner by the reply affidavit filed denied the
contention and claim made by the respondents by their
counter.
Consideration by the Court:
19. On the basis of the pleadings and the contentions
urged before us, the following questions arise for
consideration:
1. Whether a writ petition filed questioning the action of the 1st
respondent in issuing G.O.Rt.No.120 dated 09.03.2018
effective from 01.03.2018, is maintainable or whether the
petitioner should be relegated to avail the alternate remedy as
contended by the respondents?
2. Whether the respondents being a "State" can be allowed to
resile out of promise made by it?
20. From the writ averments, it is evident that the
dispute relates to rental agreement entered into between
the petitioner and the 2nd and 3rd respondents. It is not in
dispute that the 2nd and 3rd respondents are "State", as per
Article 12 of Constitution of India. The rental agreement
entered into by and between the petitioner and the 3rd
respondent represented by the 2nd respondent
dt.01.04.2003 is a contract and would have to be
construed as contract entered into in terms of Article 299
of the Constitution of India.
21. Further, it is to be noted that when the respondents
entered into rental agreement with the petitioner to take on
monthly rent its building consisting of 5 floors with an area
of 49,344 square feet, with rent payable at the rate of
Rs.12/- per square feet, consisting of 2 elements, viz.,
Rs.7/- per square feet, towards rent of the building and
Rs.5/- per square feet towards furniture and fixture,
G.O.Ms.No.35 dated 27.02.1997 was in force, which
specified the rate of rent payable for private building taken
on lease by the Government departments to be in a sum of
Rs.5/- per square feet, with enhancement of 5% for every 2
years.
22. Further, by G.O.Ms.148 Finance & Planning
dt.21.10.2000, full power has been granted to the Head of
Department, insofar as rent for office building is concerned
with plinth area values and rent assessment by R & B
Department. It is in furtherance of such conferment of
power, the 3rd respondent had authorized the 2nd
respondent to enter into contract with the petitioner for
taking the petitioner's premises on rent with R & B
certifying the area available, as noted in the recitals of the
rental agreement dt.01.04.2003.
23. Further, since the petitioner claims that as the
covenants of the agreement provide for a specific amount
agreed to be paid as rent, the respondents on the other
hand contend that the incorporation and existence of the
clause in the rental agreement clearly shows that the rent
agreed is subject to revision and as per rules of the
Government, as otherwise there was no need to mention
the said condition, it is necessary to peruse relevant
clauses of the rental agreement for adjudicating the said
issue. The relevant clauses are as under:
'(i) Agreement dt. 01.04.2003
Clause 1. That in consideration............. To hold the said
premises for period of ten years from 1st May, 2003 to 30th
April, 2013 till an alternate accommodation is provided by
the Government of Andhra Pradesh whichever is earlier,
subject to revision of rent by the Government from
time to time irrespective of the expiry of lease period
(emphasis supplied by court) to hold the said premises and
renewable from time to time for such further period as the
Lessor agrees but subject to sooner determination at any
time by either of the parties giving to the other part ninety
days clear notice in writing.
Clause 3(iii): The Lessee shall pay monthly amount of rent
as agreed by the Government, which includes the rent and
also the rent for fixtures, amenities such as enjoyed. This
amount shall be paid on or before 5th day of succeeding
month.
Clause 3(vii): The rent would be enhanced at the rate of 5%
for every two years subject to rules framed by the Government
of Andhra Pradesh from time to time in this regard.'
(emphasis supplied)
24. A reading of the above clauses clearly show that
parties have entered into contract being fully conscious of
the fact that agreed rent was subject to revision and as per
the rules issued by the Government.
25. Further, it is to be noted that, firstly, the above
condition incorporated in the rental agreement would show
that the parties were not contemplating of having a fixed
rent with agreed rate and periodicity of enhancement, but
agreed to be flexible. Secondly, in normal circumstances
though revision of rent would only be upwards, it is to be
seen that the covenants of the rental agreement do not
restrict a downward revision. However, the same is a highly
disputed question of fact, more so when the words
'irrespective of the expiry of lease period' are used in the
agreement. Therefore, this Court is of the view that the
same cannot be adjudicated in a summary manner without
the parties adducing evidence (See: Shubhas Jain Vs.
Rajeshwari Shivam and Ors, 2021 SCC OnLine SC
562).
26. Further, a reading of the rental agreement entered
into by the petitioner with the respondents dated
01.04.2003 with its periodic extension from time to time
including the representation submitted by the petitioner on
20.02.2015 seeking relaxation of G.O.Ms.Nos.63 dated
18.04.2011 for enhancement of rent at the rate of Rs.26/-
per square feet from 01.04.2016 to 31.03.2019, would also
indicate that the same is specific to the petitioner's
property given on rent to the respondents. It is based on
the specific request made in relation to the petitioner's
property, the 1st respondent had issued G.O.Rt.No.120
dated 09.03.2018 with effect from 01.03.2018. Therefore,
the mere act of issuing G.O.Rt.No.120 dated 09.03.2018
approving the rent payable by the petitioner herein by the
respondent 'State' herein, does not by itself convert the
nature of the transaction from the realm of private law to
public law, which would in-turn enable the petitioner herein
to bypass the remedy provided under Civil Law.
27. Though on behalf of the petitioner it had been
emphatically contended that the respondent being a State
having given an impression to the petitioner that the
proposal for enhancement of rent from Rs.16/- per square
feet to Rs.26/- per square feet for the period from
01.04.2016 onwards is being processed, thus the doctrine
of promissory estoppel or equitable estoppel would be
applicable for the petitioner to seek relief by way of present
writ petition, it is to be noted that, the petitioner upon the
1st respondent issuing G.O.Rt.No.120 dated 09.03.2018
whereby the 1st respondent had granted relaxation of the
condition specified in G.o.Ms.No.63 dated 18.04.2011,
agreeing to pay rent at the rate of Rs.25/- per square feet
per month, had entered into an agreement on 15.05.2018
for a period of 3 years commencing from 01.04.2018 to
31.03.2021, goes to show that the claim of the petitioner is
in the nature of recovery of arrears of rent for the period
01.04.2016 to 31.03.2018.
28. It is trite law that the doctrine of promissory estoppel
would not be applicable where the State is acting in its
public or sovereign capacity. Further, though promissory
estoppel arising out of contractual obligations may apply
against the State acting in the private law realm, it is well
settled that the said doctrine cannot be pressed into
service for maintaining a writ petition for enforcement of a
contract. In order to seek enforcement of the said doctrine,
one needs to fall back on Section 115 of Indian Evidence
Act, 1872 by initiating proceedings under civil law.
29. The Hon'ble Supreme Court in K.K. Saksena vs.
International Commission on Irrigation and
Drainage 9, held that contractual obligations arising
between individuals, are only enforceable through ordinary
remedies. The relevant observations are as under:
"38. What follows from a minute and careful reading of the
aforesaid judgments of this Court is that if a person or
9 (2015) 4 SCC 670
authority is a 'State' within the meaning of Article 12 of the
Constitution, admittedly a writ petition Under Article 226
would lie against such a person or body. However, we may
add that even in such cases writ would not lie to
enforce private law rights. There are catena of judgments
on this aspect and it is not necessary to refer to those
judgments as that is the basic principle of judicial review of
an action under the administrative law. Reason is obvious.
Private law is that part of a legal system which is a
part of Common Law that involves relationships
between individuals, such as law of contract or torts.
Therefore, even if writ petition would be maintainable
against an authority, which is 'State' Under Article 12
of the Constitution, before issuing any writ,
particularly writ of mandamus, the Court has to
satisfy that action of such an authority, which is
challenged, is in the domain of public law as
distinguished from private law.
39. Within a couple of years of the framing of the
Constitution, this Court remarked in Election Commission of
India v. Saka Venkata Subba Rao MANU/SC/0060/1953 :
AIR 1953 SC 210 that administrative law in India has been
shaped in the English mould. Power to issue writ or any
order of direction for 'any other purpose' has been held to be
included in Article 226 of the Constitution 'with a view
apparently to place all the High Courts in this country in
somewhat the same position as the Court of the King's Bench
in England. It is for this reason ordinary 'private law
remedies' are not enforceable through extraordinary
writ jurisdiction, even though brought against public
authorities (See-Administrative Law; 8th Edition;
H.W.R. Wade & C.F. Forsyth, page 656). In a number of
decisions, this Court has held that contractual and
commercial obligations are enforceable only by
ordinary action and not by judicial review."
(emphasis supplied)
Thus, from a reading of the above judgment it can be
deduced that since contractual obligations are rights in
personam affecting two individuals, as opposed to a larger
influence in rem, they fall under the private law realm,
which are ordinarily to be redressed under Civil Law, even
if one of the contracting parties is the State.
30. A Three-Judge Bench of the Hon'ble Supreme Court
in the case of Indian Oil Corporation Ltd v/s. Amritsar
Gas Service 10, had considered the enforceability of a
contract in private law realm and held that -
11. We may at the outset mention that it is not necessary in
the present case to go into the constitutional limitations of
Article 14 of the Constitution to which the appellant-
Corporation as an instrumentality of the State would be
subject particularly in view of the recent decisions of this
Court in Dwarkadas Marfatia and Sons v. Board of
Trustees of the Port of Bombay [(1989) 3 SCC 293]
, Mahabir Auto Stores v. Indian Oil Corporation [(1990) 3
SCC 752 : JT (1990) 1 SC 363] and Shrilekha
Vidyarthi v. State of U.P. [(1991) 1 SCC 212 : JT (1990) 4 SC
211] This is on account of the fact that the suit was
based only on breach of contract and remedies
flowing therefrom and it is on this basis alone that
the arbitrator has given his award. Shri Salve is,
therefore, right in contending that the further
questions of public law based on Article 14 of the
Constitution do not arise for decision in the present
10 (1991) 1 SCC 533
case and the matter must be decided strictly in the
realm of private law rights governed by the general
law relating to contracts with reference to the
provisions of the Specific Relief Act providing for non-
enforceability of certain types of contracts.
(emphasis supplied)
31. Further, the Apex Court in the case of Kerala State
Electricity Board v/s. Kurien E. Kalathil 11, dealing with
maintainability of writ petition involving implementation
and interpretation of contract even though entered into by
a statutory body and held -
10. We find that there is a merit in the first contention of Mr
Raval. Learned counsel has rightly questioned the
maintainability of the writ petition. The interpretation
and implementation of a clause in a contract cannot
be the subject-matter of a writ petition. Whether the
contract envisages actual payment or not is a
question of construction of contract. 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.
A contract would not become statutory simply
because it is for construction of a public utility and it
has been awarded by a statutory body. We are also
unable to agree with the observation of the High Court that
11 (2000) 6 SCC 293
since the obligations imposed by the contract on the
contracting parties come within the purview of the Contract
Act, that would not make the contract statutory.
11. A statute may expressly or impliedly confer
power on a statutory body to enter into contracts in
order to enable it to discharge its functions. Dispute
arising out of the terms of such contracts or alleged
breaches have to be settled by the ordinary
principles of law of contract. The fact that one of the
parties to the agreement is a statutory or public body will
not by itself affect the principles to be applied. The
disputes about the meaning of a covenant in a contract or
its enforceability have to be determined according to the
usual principles of the Contract Act. Every act of a
statutory body need not necessarily involve an exercise of
statutory power. Statutory bodies, like private parties,
have power to contract or deal with property. Such
activities may not raise any issue of public law. In the
present case, it has not been shown how the contract is
statutory. 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. Whether any amount is due
and if so, how much and refusal of the appellant to pay it
is justified or not, are not the matters which could have
been agitated and decided in a writ petition. The
contractor should have relegated to other remedies.
(emphasis supplied)
32. In the facts of the present case, though the petitioner
is claiming that there is no basis for the 1st respondent
issuing G.O.Rt.No.120 dt.09.03.2018 w.e.f. 01.03.2018, as
noted above, the issuance of above G.O. relaxing the Rules
notified under G.O.Ms.No.63 is specific to the petitioner
property given on rent to the 3rd respondent, does not
involve any public law, and on the other hand involves
interpretation and implementation of the contract, for
which the petitioner has to avail civil remedies as held by
the decisions of the Apex Court in Indian Oil Corporation
Ltd (9 supra) and Kerala State Electricity Board (10
supra).
33. Further, a Three-Judge Bench of the Apex Court in
Rapid Metro Rail Gurgaon Ltd. v/s. Haryana Mass
Rapid Transport Corpn. Ltd. 12, speaking through the
Hon'ble Dr. Justice. Dhananjaya. Y. Chandradchud, (as his
lordship then was) had referred with approval, the view
12 (2021) 17 SCC 533
taken in Mrs. Sanjana M. Wig v/s. Hindustan Petro
Corporation Ltd. 13, where in it was held that -
"12. The principal question which arises for consideration is
as to whether a discretionary jurisdiction would be refused
to be exercised solely on the ground of existence of an
alternative remedy which is more efficacious. ...
13. However, access to justice by way of public law remedy
would not be denied when a lis involves public law
character and when the forum chosen by the parties would
not be in a position to grant appropriate relief.
***
18. It may be true that in a given case when an action of
the party is dehors the terms and conditions contained in
an agreement as also beyond the scope and ambit of the
domestic forum created therefor, the writ petition may be
held to be maintainable; but indisputably therefor such a
case has to be made out. It may also be true, as has been
held by this Court in Amritsar Gas Service [Indian Oil
Corpn. Ltd. v. Amritsar Gas Service, (1991) 1 SCC 533]
and E. Venkatakrishna [E. Venkatakrishna v. Indian Oil
Corpn., (2000) 7 SCC 764] that the arbitrator may not have
the requisite jurisdiction to direct restoration of
distributorship having regard to the provisions contained in
Section 14 of the Specific Relief Act, 1963; but while
entertaining a writ petition even in such a case, the
court may not lose sight of the fact that if a serious
disputed question of fact is involved arising out of a
contract qua contract, ordinarily a writ petition
would not be entertained. A writ petition, however, will
13 (2005) 8 SCC 242
be entertained when it involves a public law character or
involves a question arising out of public law functions on
the part of the respondent."
34. Further, a Division Bench of this Court in the case of
Smt. S Sai Priya vs The State Of Telangana 14, through
the Hon'ble Chief Justice. Ujjal Buyan (as his Lordship
then was) while dealing with the enhancement of rent as
per G.O.Ms.No.63, in relation to a contract entered under
G.O.Ms.No.35, had held-
'10................ According to us, the writ petition
ought not to have been entertained at the first
instance itself since the same pertains to not only
disputed questions of fact but also for recovery of
rental arrears, which is purely within the domain
of the civil courts. Matters such as these are not to
be agitated and entertained in proceedings
under Article 226 of the Constitution of India only
because there is a government office
memorandum.'
35. A conspectus of the aforesaid judgments, would
clearly show that by the present writ petition, the petitioner
is seeking to remedy an action of the State, which clearly
falls in the realm of private law, more so when it is not
shown to this Court of involvement of any public law
resulting in infringement of fundamental rights of the
petitioner under Articles 14 and 19(1)(g) of the Constitution
of India, in order to maintain the writ petition under Article
226 of the Constitution. Thus, this Court is in agreement
with the submission of the respondents that the petitioner
should be relegated to avail the alternative remedy, which
in the considered view is the civil remedy.
36. The reliance placed by the learned Senior Counsel for
the petitioner on the judgment of the Supreme Court in the
case of Mahabir Auto Stores (7 supra) and Dwarkadass
Marfatia Sons (8 supra) would not advance the case of
the petitioner, as the same have been distinguished by the
Apex Court in the case of Indian Oil Corporation Ltd (9
supra).
37. In so far as the reliance placed by the leaned Senior
Counsel for the petitioner on the decisions in the case of
M/s. Motilal Padampat Sugar Mills Co.Ltd. (1 supra);
Godfrey Philips India Ltd. (2 supra); & Manuelsons
Hotels Private Limited (5 supra), dealing with Promissory
Estoppel are concerned, as noted herein above, the said
doctrine would be applicable both in public and private law
and since, this Court had now held that the present writ
petition filed does not involve any element of public law
and the matter under consideration in those cases dealt
with statutory and public law, the same are of no
assistance to the case of the petitioner.
38. The reliance placed on the other decisions in the case
of Indo-Afghan Agencies Ltd.(3 supra), Century
Spinning and Manufacturing Company Ltd.(4 supra)
are concerned, the same would not advance the case of the
petitioner, as this Court relying on the law as enunciated
by the Supreme Court had come to a conclusion, that the
Rental Agreement is a contract in private law domain and
the petitioner has to work out his remedies in civil law.
39. In so far as the decision of the Hon'ble Supreme
Court in the case of Whirlpool Corporation (6 supra),
dealing with alternative remedy, it is settled position of law
that not exercising writ jurisdiction when an efficacious
remedy is available, is a self-imposed restraint and writ
petition can be entertained in four exceptions as carved.
However, present facts of the case do not fall under any of
the exceptions carved out for this Court to entertain the
present writ petition, even though there is alternative
remedy.
40. Further, as the writ petition involves highly disputed
question of facts and also interpretation of contractual
terms the writ petition is not maintainable. [See National
Highway Authority Of India v/s. Ganga Enterprises 15 &
Mrs. Sanjana M. Wig vs Hindustan Petro Corporation
Ltd 16, as approved in Rapid Metro Rail Gurgaon Ltd. (11
supra)]
41. In so far as the contention of the respondent that the
petitioner having entered into an agreement on issuance of
G.O.Rt.No.120 dated 09.03.2018 from 01.04.2018 to
31.03.2021, by giving up his claim for the earlier period is
15 (2003) 7 SCC 410
16 (2005) 8 SCC 242
concerned, Firstly, it is to be noted that there is no specific
pleading to that effect in the counter affidavit filed by the
respondent. Secondly, since this Court is now relegating
the petitioner to avail the appropriate Civil Remedy, it
would be inappropriate for this Court to delve into the said
issue as the same requires collection of evidence and thus,
any view expressed by this Court would cause prejudice to
the claim of the Petitioner.
42. However, taking note of the fact that the present Writ
Petition is pending on the file of this Court from
16.09.2019 till its disposal today and as this Court is now
relegating the petitioner to avail the civil remedy, in the
event of the petitioner approaching the Court of Civil
jurisdiction by filing a suit, the period from 16.09.2019 till
the date of the order, on the petitioner filing application for
condonation of delay, the same may be considered.
43. Subject to above direction, the Writ Petition is
disposed of.
Pending miscellaneous petitions, if any, shall stand
closed in the light of this final order. No order as to costs.
_____________________
T. VINOD KUMAR, J
Date: 31.07.2024
___________________
P.SREE SUDHA, J
GJ
