# Hardik Trading v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 152
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-20
- **Case number:** Writ C No. 30 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hardik-trading-v-state-of-u-p-ors-49600
- **Pages:** 6

## Headnote

C.S.C.,
Neerav
Chitravanshi,
Puneet
Chandra, Rani Singh, Samanvya Dhar
Dwivedi

Constitution of India, 1950 - Art. 226 -
Writ Petition - maintainability - locus -
nature of the prerogative remedy of a
mandatory order to perform a public duty
by the public authorities arising from law
and contract are distinct - For binding the
State under the obligation of performance
of a contract, firstly the State ought to be
a party expressly and secondly there
ought
not
to
be
a
situation
of
determination of disputed questions of
facts - In the present case, the petitioner,
a firm, was awarded work by the U.P.
Rajya
Karamchari
Kalyan
Nigam
(respondent no. 3) - Neither the State of
U.P. nor the Mission Director, National
Health Mission were privy to the contract -
writ petition filed by the petitioner, who is
just subcontractor / agent of opposite
party no.3 praying for direction to the
States to make payment of amount to him
for work done by it - opposite party no. 3
for meeting the obligation of making
payment to the petitioner chose not to
institute
any
proceeding
against
the
State/Center - Held - petitioner for the
purpose
of
excecuting
the
work
of
opposite party no. 3 was not more than a
selective choice
& that too without
following any tender process
- real
contract
remains
enforceable
at
the
instance of opposite party no. 3 who has
chosen to remain dormant against the
State - writ petition dismissed (Para 14,
15)

Dismissed. (E-5)

List of Cases cited:

## Text

152 INDIAN LAW REPORTS ALLAHABAD SERIES
aside and are hereby set aside. Sale
proceeding / auction held on 8.10.1975 and
its confirmation on 17.10.1975 are held to
be null and void. Respondents are directed
to re-sale the property in dispute in
accordance
with
law.
Sale
held
on
8.10.1975 and the subsequent proceeding
will not confer any right on respondent
no.5.

12. The writ petition stands allowed.

13. No order as to costs.
----------
(2023) 1 ILRA 152
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.01.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ C No. 30 of 2022

Hardik Trading ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akhilesh Kumar Kalra, Avinash Chandra,
Narendra Shanker Shukla, Pooja SIngh

Counsel for the Respondents:
C.S.C.,
Neerav
Chitravanshi,
Puneet
Chandra, Rani Singh, Samanvya Dhar
Dwivedi

Constitution of India, 1950 - Art. 226 -
Writ Petition - maintainability - locus -
nature of the prerogative remedy of a
mandatory order to perform a public duty
by the public authorities arising from law
and contract are distinct - For binding the
State under the obligation of performance
of a contract, firstly the State ought to be
a party expressly and secondly there
ought
not
to
be
a
situation
of
determination of disputed questions of
facts - In the present case, the petitioner,
a firm, was awarded work by the U.P.
Rajya
Karamchari
Kalyan
Nigam
(respondent no. 3) - Neither the State of
U.P. nor the Mission Director, National
Health Mission were privy to the contract -
writ petition filed by the petitioner, who is
just subcontractor / agent of opposite
party no.3 praying for direction to the
States to make payment of amount to him
for work done by it - opposite party no. 3
for meeting the obligation of making
payment to the petitioner chose not to
institute
any
proceeding
against
the
State/Center - Held - petitioner for the
purpose
of
excecuting
the
work
of
opposite party no. 3 was not more than a
selective choice
& that too without
following any tender process
- real
contract
remains
enforceable
at
the
instance of opposite party no. 3 who has
chosen to remain dormant against the
State - writ petition dismissed (Para 14,
15)

Dismissed. (E-5)

List of Cases cited:

1. Joshi Technologies International Inc. Vs
U.O.I. & ors. (2015) 7 Supreme Court Cases 728

2. Bio Tech System Vs St. of U.P. & ors. 2021(1)
AWC 92

3. Lalloo Ji Rajiv Chandra and Sons Vs
Meladhikari Prayagraj, Mela Authority & ors.
2019(2) AWC 1750

(Delivered by Hon'ble Om Prakash Shukla, J.)

1. This is a writ petition instituted by
the sub-contractor or agent of opposite
party no.3 praying for the relief as under :-

"(i) Issue an appropriate writ,
order or direction in the nature of
mandamus directing the respondents to
make payment of the admitted amount to
the petitioner for work done by it, which
1 All. Hardik Trading Vs. State of U.P. & Ors.
153
stand admitted by the respondent in their
various correspondences, particularly in
annexure nos. 22 & 23 of the writ petition.

(ii) Issue an appropriate writ,
order or direction in the nature of
mandamus directing the respondents to
make payment of 18% interest over the said
amount for a period of two and a half
years."

2. Briefly stated facts of the case are
that the central government for reducing the
consumption of tobacco launched a scheme
in the year 2019 to commemorate ''No
Tobacco Day' on ''World No Tobacco Day'
by taking appropriate steps as mentioned in
D.O. letter dated 03.05.2019. The drive of
no-tobacco movement under the scheme
was to be implemented by each State/U.T. as
per the guidance of the central government
in the letter dated 03.05.2019 which for
ready reference is reproduced below :

"Respected Madam/Sir,

As you are aware that every year,
31st May is observed as World No Tobacco
Day(WNTD), highlighting the health and
other risks associated with tobacco use, and
advocating for effective policies to reduce
tobacco consumption. This year, the theme
of 'World No Tobacco Day 2019 is
"Tobacco and lung health". World No
Tobacco Day 2019 will focus on the
multiple ways the exposure to tobacco
affects the health of people's lungs
worldwide, which includes Lung cancer,
chronic
respiratory
disease,
maternal
smoking or matenral exposure to secondhand smoke, onset and exacerbation of
asthma, pneumonia and bronchitis, and
frequent lower respiratory infection among
young children and Tuberculosis. A soft
copy of the poster developed for WNTD
will also be sent to you in a short while for
further dissemination.

2. In order to raise awareness on
risks posed by tobacco smsoking and
second hand smoke exposure, especially
awareness on the particular dangers of
tobacco smoking to lung helath and
emerging evidence on the link between
tobacco smoking and tuberculosis deaths,
State/UT is requested to commemorate this
year's World
No Tobacco
Day. An
enforcemnt drive on tobacco control laws
for at least 15 days conversion and
declaration of all Government building as
Tobacco Free Pemise/Building;awareness
activities like road shows, street plays etc;
training of health staff in NCD clinics and
starting Tobacco Cesation Services in the
NCD
clinics;integration
of
Tobacco
Cessation Services with NCD clinics, are
some of the suggested actities that may be
carried out during this time.

3. I solicit your intervention and
support to project together to the World our
strong
commitement
towards
tobacco
control.

With Warm regards"

3. The State of U.P. in the light of
aforesaid
letter
held
a
meeting
on
09.05.2019 under the aegis(Chairmanship)
of the department of medical health &
family welfare and it was decided that the
work of information, communication and
education of ''No Tobacco Day' be carried
out by U.P. State Employees Welfare
Corporation which shall provide brochures,
posters, banners, pamphlets, community
awareness and leaflet etc at the level of
each district to the health department. The
corporation i.e. opposite party no.3 for
providing the printed material is stated to
have been chosen in the meeting held on
09.05.2019 to which the petitioner was not
a party. Looking to the paucity of time due
to the ongoing election process, the
corporation as understood to have a
154 INDIAN LAW REPORTS ALLAHABAD SERIES
mechanism of receiving e-tenders was thus
chosen by the State to provide printed
material at the respective districts without
following any tender process. It is in this
background that the U.P. State Employees
Corporation
stepped
into
the
implementation of the ''No Tobacco Day'
project floated by the Central Government
in the year 2019. Undisputedly the U.P.
State
Employee
Corporation
is
an
instrumentality of the State within the
meaning of Article 12 of the Constitution of
India and this position is well settled in the
judgment
reported
in
(2005)1
SCC
149(Virendra Kumar Srivastava versus U.P.
Rajya Karamchari Kalyan Nigam and
Another). The petitioner, however, is
merely a firm registered with the U.P. State
Employees Corporation under the terms
and conditions set out in the office
memorandum dated 8.10.2015. Likewise
other firms are also registered with the
Corporation on the like terms.

4. The petitioner was awarded work
by the U.P. Rajya Karamchari Kalyan
Nigam and there is no document on record
to show that the State of U.P. or Mission
Director, National Health Mission were in
any manner privy to the contract awarded
to the petitioner through work orders. It is
also not the case of the petitioner that the
opposite party no. 3 before issuance of the
work orders to the petitioner had obtained
prior approval of the State as regards his
engagement to perform the contract. The
averments made in the writ petition also do
not show that the opposite party no. 3
before issuing the work order to the
petitioner has adopted any tender process
and undertaken any competitive exercise
for the award of contract. The sole premise
upon which the claim rests is a simple
averment that the petitioner was issued
work orders by opposite party no. 3 which
on its implementation deserve to be
honored by all other opposite parties
including
the
State
government
and
Director National Health Mission U.P.
being a representative of the Central
Government.

5. Parties were heard. The petitioner
reiterated the contention that once the work
orders were issued to him and the same
have
been
carried
out
successfully,
therefore, there is no reason as to why the
payment payable may not be released by
the opposite parties.

6. The opposite party no. 3 while
disputing the liability has laid emphasis on
the point that the very registration of the
petitioner with the opposite party no. 3 is
subject to the condition that unless the fund
is released by the State, there is no question
of releasing the payment as has been
claimed by the petitioner. Clause 7 of the
office
memorandum
dated
8.10.2015
stipulating conditions of registration has
specifically been referred to and the same
reads as under :-

"7. सामग्रिय ों की आपूग्रति ग्रकये जाने
वाले ग्रवभाग से ग्रनगम क भुगतान प्राप्त ह ने के
पश्चात सोंबोंग्रित आपूग्रतिकताि फमि/ट्रेडसि के पक्ष में
ग्रनयमानुसार भुगतान ग्रकया जायेगा।"

7. This Court may note that the
petitioner apart from its registration with
the opposite party no. 3 has not placed any
material or document according to which a
legitimate right of contractual liability viz a
viz the opposite party no. 3 was created.
There is a difference between choosing a
person selectively and through a legitimate
process. The petitioner for the purpose of
excecuting the work of opposite party no. 3
was not more than a selective choice that
1 All. Hardik Trading Vs. State of U.P. & Ors.
155
too without following any tender process,
therefore, whether the work order issued to
the petitioner constitutes a valid contract or
not is by itself too doubtful. To classify the
relationship between the petitioner and
opposite party no. 3 as that of master and
agent would not be legally wrong and this
alone would not enable the petitioner to sue
against the State even if the services have
been utilized. The observation is made as
there is no written document binding the
petitioner and opposite party no. 3 for the
performance of any project.

8. Interestingly, the opposite party no.
3 does not dispute the issuance of work
order in favour of the petitioner but what is
disputed is the release of payment. In order
to defend the liability, the opposite party
no. 3 has heavily relied upon clause-7 of
the memorandum of registration dated
8.10.2015 reproduced above. The opposite
party no. 3 for meeting the obligation of
making payment to the petitioner has
however not chosen to institute any
proceeding
whatsoever
against
the
State/Center. The petitioner not being a
participant in the meeting held on 9.5.2019
can not take any such recourse unless the
work awarded to him was based on a
legitimate procedure of tender. Even if
there was any contract, it was confined
between the petitioner and opposite party
no. 3 of which there is no disclosure. The
business is for profit, therefore, disclosures
must be neat and clean between the parties.
It is in these circumstances that the matter
has come up before us. The question that
crops up is as to whether the petitioner who
was engaged by opposite party no. 3 for
execution of work at its sole discretion has
a right to pray for the release of money
against the State (Opposite party nos. 1 and
2 & 5) as well as the Director National
Health Mission U.P. i.e. opposite party no.
4.

9. The Court called upon all the
opposite parties for filing a counter
affidavit as well as written submissions.
Two specific arguments in the light of pleas
taken in the counter affidavits have been
advanced by learned counsel for the State
as well as by opposite party no. 4. Firstly,
that the case involves determination of
disputed questions of facts, therefore, the
lis between the parties is not amenable to
writ jurisdiction. The argument putforth is
substantiated on the strength of case law
reported as under :-

1. (2015) 7 Supreme Court Cases
728; Joshi Technologies International Inc.
versus Union of India and others

2. 2021(1) AWC 92; Bio Tech
System versus State of U.P. and others

3. 2019(2) AWC 1750; Lalloo Ji
Rajiv
Chandra
and
Sons
versus
Meladhikari Prayagraj, Mela Authority and
others

10. The second submission putforth
by both the respondents i.e. State and
Director National Health Mission, U.P. is to
the effect that none of these two parties are
privy to the contract entered into between
the petitioner and opposite party no. 3. The
specific argument putforth in para 9 of the
written submissions filed by the State
(opposite party nos.1, 2 & 5) reads as under
:-

"9. That in the present case the
claim sought to be set up by the petitioner
has strongly disputed, and the petitioner has
not been able to place on record any
material to demonstrate that it was a party
to any agreement in terms of which it
156 INDIAN LAW REPORTS ALLAHABAD SERIES
would be entitled to raise any claim against
the respondents."

11. The issue before us does not
substantially hinge on the first argument
rather it is the second argument that
requires consideration for setting the
controversy at rest.

12. In order to appreciate the
argument putforth, it is to be noted that on
raising every demand for the realization of
bills by opposite party no. 3, the State had
required the opposite party no. 3 to discose
the name of the firm and its Bank account
for the purposes of release of amount to the
opposite party no. 3. The disclosure to the
above extent, in our humble consideration,
does not qualify the relationship of the
State qua the petitioner to be a party to the
work contract awarded to opposite party
no. 3. Therefore, institution of the present
petition in the pursuit of exclusive rights
against the State and Director National
Health Mission is wholly misconceived and
suffers from mis-joinder of parties. The
impleadment of opposite party no. 3 in the
writ petition is nothing but an attempt on
the part of the petitioner to institute a proxy
or collusive proceeding. The opposite party
no. 3 may have engaged the petitioners as
an agent but any such deal would not
entitle the petitioner to bring about a legal
proceeding against the State government or
the Central government so long as the
obligation of performance of contract or
indemnity offered, if any, to make up the
deficiency was direct. The disclosures
made by the opposite party no. 3 as regards
the name of the firm or its account were
merely to streamline its independent
relationship between the Corporation and
the State for its own interest and a tripartite
agreement in the circumstances of the case
was never arrived at expressly or by
implication, the mere acknowledgment of
the name of the firm and its Bank account
would not bind the State for performance of
financial obligations towards the petitioner
directly and exclusively.

13. In a situation where the
performance of public duty is interwoven
between
the
two
parties
for
its
implementation, the entry of a third party in
absence of a privity of contract is
unrecognized under law, the scope whereof,
remains undefined. Any interpretation in
the light of the conduct of parties that too
for consuming public money would be a
dangerous preposition. It is this reason for
which the rule of privity of contract was
rigidly propounded in the case of Tweddle
versus Atkinson reported in [1861] EWHC
J57(QB).

14. The nature of the prerogative
remedy of a mandatory order to perform a
public duty by the public authorities arising
from law and contract are distinct. For
binding the State under the obligation of
performance of a contract, firstly the State
ought to be a party expressly and secondly
there ought not to be a situation of
determination of disputed questions of
facts. In the present case, however, the
petitioner does not appear to have assumed
any better position except to remain an
agent for the opposite party no. 3. The
locus and identity of the petitioner has
remained merged with the opposite party
no. 3 for any claim whatsoever. The
opposite party no. 3 has not putforth any
claim before this Court, therefore, the legal
hurdles in the way of the petitioner to lay a
claim independently besides other legal
obstacles coming in the way of locus do not
enable this Court to step in, the reason
being, that the real contract remains
enforceable at the instance of opposite
1 All. C/M, Azad Cooperative Housing Society Ltd., Bareilly & Ors. Vs. State of U.P. & Ors.
157
party no. 3 who has chosen to remain
dormant against the State.

15. In the circumstances stated above,
we are not convinced that the writ petition
for the relief prayed herein can be
entertained and it is open to opposite party
no. 3 to lay his claim as may be permissible
under law. The writ petition is accordingly
dismissed with no order as to cost.
----------
(2023) 1 ILRA 157
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2022

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE AJIT SINGH, J.

Writ C No. 3298 of 2022

C/M, Azad Cooperative Housing Society
Ltd., Bareilly & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prabhakar Awasthi, Sri Dhiresh Kumar,
Sri Hiresh Tiwari, Sri K.M. Mishra, Sri H.R.
Mishra (Senior Counsel)

Counsel for the Respondents:
C.S.C., Sri Lal Chandra Sahu, Sri Narendra
Kumar Giri, Sri Nirankar Singh, Sri Sunil
Kumar Misra

A. Civil Law - U.P. Cooperative Societies
Act, 1965 - Sections 29 (4-B), 35 & 38 -
U.P. Co-operative Societies Rules, 1968 -
Rules 437 & 438 - Term of interim
committee appointed by Registrar - six
months - Under section 29 (4-D), the
interim Committee appointed under subsection 29(4-B) shall cease to exist after
the expiry of six months from the date of
its appointment or reconstitution of the
Management Committee after election
thereof
whichever
is
earlier
-
Reconstitution - mere change of any
member of the interim Committee of
Management, would not mean that the
term of the Committee of Management
would commence from that date (Para 11,
12)

B. Civil Law - U.P. Cooperative Societies
Act, 1965 - U.P. Co-operative Societies
Rules, 1968 - Removal of secretary - by
interim committee appointed by Registrar,
after expiry of its term - Effect - the
election of the C/m of the Society was
held on 15.10.2016, for a period of 5 yrs,
term was to expire on 14.10.2021 -
However, before the term expired, on
17.6.2021,
the
Additional
Housing
Commissioner
superseded
the elected
C/m & appointed a four member interim
Committee - on 13.8.2021, the A.C.M. -II
was
transferred
and
the
ACM,
was
substituted in his place - On 2.1.2022,
under the orders of the Chairman of the
interim C/m, the ACM-1, on the basis of
the resolution dated 20.12.2021, removed
the Secretary - Held - term of the interim
Committee of Management which was
constituted on
17.6.2021
expired
on
17.12.2021, on the expiry of the six
months,
from
the
date
from
its
appointment - On the date when the ACM
II was replaced by the ACM, there was no
fresh
reconstitution
of
the
interim
Committee of Management but it was only
a change which had been brought in to
make
the
interim
Committee
of
Management functional - therefore the
resolution dated 20.12.2021 and 1.1.2022,
passed by the interim committee, after
expiry
of
its
term,
were
without
jurisdiction & the order of removal of
secretary passed on 2.1.2022 was also
without any jurisdiction - resolutions
dated 20.12.2021 and 1.1.2022 and the
order dated 2.1.2022 quashed & set-aside
- Court directed to hold election forthwith
in accordance with law (12, 13, 15)

Allowed. (E-5)

(Delivered by Hon'ble Siddhartha Varma, J.