# M/s. R.K. Road Lines Pvt. Ltd v. Uttar Pradesh Cooperative Federation Ltd. & Ors

- **Citation:** (2021) 8 ILRA 834
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-08
- **Case number:** Writ C No. 7652 of 2021
- **Bench:** Sanjay Yadav, A.C.J. Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-r-k-road-lines-pvt-ltd-v-uttar-pradesh-cooperative-federation-ltd-ors-47317
- **Pages:** 12

## Headnote

Constitution of India - Art.226, Art.226 -
Writ petition - Mandamus - to enforce
contractual
rights against
State
-
maintainability - where the rights are
purely
of
a
private
character,
no
mandamus can be claimed, even if the
relief is sought against the State or any
of its instrumentality - pre-condition for
the issuance of a writ of mandamus is a
public duty - In a dispute, which is
purely contractual in nature, there is no
public duty element, to issue a writ of
mandamus - Exception - where the
amount is admitted & there is no
disputed
question
of
fact
requiring
adjudication of detailed evidence &
interpretation
of
the
terms
of
the
contract, is an exception to general
principle (Para 12, 22, 24)
Petitioner awarded contract for carrying &
handling fertilizers - After completion of work,
petitioner gave application submitting detail bills
- no payment made - claims strongly disputed -
Held - payments in respect of which petitioner
raised
claims
pertain
to
contractual
&
commercial obligations - pleadings & material on
record, do not indicate that it is a public law
remedy which the petitioners are seeking to
invoke so as to persuade Court to exercise its
discretionary jurisdiction
Dismissed. (E-4)
List of Cases cited:
8 All. M/s. R.K. Road Lines Pvt. Ltd. Vs. Uttar Pradesh Cooperative Federation Ltd. & Ors.
835

## Text

834 INDIAN LAW REPORTS ALLAHABAD SERIES
Officer, incorporating the names of the
respondent nos. 5, 6 & 7, can also not be
sustained. Therefore, both the orders i.e.
the order dated 04.03.2020 passed by the
office of the District Magistrate and the
order dated 18.03.2020 making entries of
inclusion of names of the respondent nos.
5, 6 & 7 in the family register by the
Village
Development
Officer,
Village
Panchayat - Dostpur, are without authority
of law and are, therefore, quashed.

14. Liberty is granted to the
respondent nos. 5, 6 & 7 to move an
application in accordance with law before
the
Assistant
Development
Officer
(Panchayat). If such an application is filed
by the respondent nos. 5, 6 & 7 within three
weeks, then the Assistant Development
Officer (Panchayat) shall consider the
application of the respondent Nos. 5, 6 & 7
for inclusion of their names and after due
inquiry, pass an appropriate order, in
accordance
with
law,
expeditiously,
preferably within next six weeks, after
affording reasonable opportunity of hearing
to all the parties concerned and without
being influenced by any of the observations
made in this order.

15. It is made clear that we have not
expressed any opinion on merits of the case
of the petitioner for the respondent nos. 5, 6
& 7.

16. The writ petition is accordingly
allowed to the extent indicated above.
----------
(2021)08ILR A834
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2021

BEFORE

THE HON'BLE SANJAY YADAV, A.C.J.
THE HON'BLE PRAKASH PADIA, J.

Writ C No. 7652 of 2021

M/s. R.K. Road Lines Pvt. Ltd. ...Petitioner
Versus
Uttar Pradesh Cooperative Federation Ltd.
& Ors. ...Respondents

Counsel for the Petitioner:
Sri Bipin Lal Srivastava, Sri Liaqat Ali
Siddiqui, Sri Vinayak Verma, Sri S.K. Verma
(Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Liaqat Ali Siddiqui

Constitution of India - Art.226, Art.226 -
Writ petition - Mandamus - to enforce
contractual
rights against
State
-
maintainability - where the rights are
purely
of
a
private
character,
no
mandamus can be claimed, even if the
relief is sought against the State or any
of its instrumentality - pre-condition for
the issuance of a writ of mandamus is a
public duty - In a dispute, which is
purely contractual in nature, there is no
public duty element, to issue a writ of
mandamus - Exception - where the
amount is admitted & there is no
disputed
question
of
fact
requiring
adjudication of detailed evidence &
interpretation
of
the
terms
of
the
contract, is an exception to general
principle (Para 12, 22, 24)
Petitioner awarded contract for carrying &
handling fertilizers - After completion of work,
petitioner gave application submitting detail bills
- no payment made - claims strongly disputed -
Held - payments in respect of which petitioner
raised
claims
pertain
to
contractual
&
commercial obligations - pleadings & material on
record, do not indicate that it is a public law
remedy which the petitioners are seeking to
invoke so as to persuade Court to exercise its
discretionary jurisdiction
Dismissed. (E-4)
List of Cases cited:
8 All. M/s. R.K. Road Lines Pvt. Ltd. Vs. Uttar Pradesh Cooperative Federation Ltd. & Ors.
835
1. Ms. Biotech System Vs St. of U.P. & ors. Writ
C No.13388 of 2020
2. M/s Satish Chandra Vs St. of U.P. & ors. 2006
(2) ALJ 122 (DB)
3.The Chairman Railway Board & ors. Vs Mrs.
Chadrima & ors. JT 2000 (1) SC 426
4. Radhakrishna Agarwal & ors. Vs St.of Bihar &
ors. (1977) 3 SCC 457
5. Hindustan Petroleum Corp. Ltd. & ors. Vs
Dolly Das (1999) 4 SCC 450
6. Kerala State Electricity Board & ors. Vs Kurien
E. Kalathil & ors. (2000) 6 SCC 293
7. Joshi Technologies International Inc. Vs
U.O.I. & ors. (2015) 7 SCC 728
8. L.I.C. of India & ors. Vs Asha Goel (Smt.) &
anr. (2001) 2 SCC 160
9. M/s Lalloo Ji Rajiv Chandra & Sons Vs
Meladhikari Prayagraj Mela Authority & ors.
2019 ADJ Online 0081
(Delivered by Hon'ble Prakash Padia, J.)

1. The matter is taken up through
video conferencing.

2. Heard Sri S.K. Verma, learned
Senior Advocate assisted by Sri Bipin Lal
Srivastava and Sri Vinayak Verma, learned
counsel for petitioner. Learned Standing
Counsel accepted notice on behalf of
respondent Nos.2 & 4 and Sri Liaqat Ali
Siddiqui, learned counsel for respondent
Nos.1 & 3.

3. The petitioner has preferred the
present petition under Article 226 of the
Constitution of India with the following
prayers:-

"A. issue a suitable writ, order or
direction in the nature of mandamus
directing the respondent No.2 to pay the
amount of Rs.15,96,674.75/- with an
interest at the rate of 12% calculated from
01.12.2018 an also may be pleased to direct
to return of the security money to the
petitioner forthwith.

B. issue any other suitable order
or direction, which this Hon'ble Court may
deem just and proper in the facts and
circumstances of the case and in the interest
of justice."

4. Facts in brief as contained in the
petition are that the petitioner was awarded
a contract for carrying and handling
fertilizers
for
the
period
between
01.04.2017 to 31.03.2018. After completion
of the aforesaid work, on 30.03.2018 the
petitioner gave application for payment and
on 22.12.2018 he also gave an application
submitting detail bills. When no payment
was made, the petitioner submitted a
reminder on 08.01.2019. On 10.01.2019,
Executive Director (Fertilizer) wrote a
letter to District Manager PCF, Budaun for
stop payment due to an inquiry pending
against
the
petitioner.
Thereafter
on
26.02.2019
the
petitioner
moved
an
application to the Managing Director, Uttar
Pradesh Cooperative Federation Lucknow
for relase of amount mentioned in the Bill
and also with regard to the security money,
he stated that it may be returned after
inquiry. On 29.11.2019 the petitioner filed
application before the District Manager
PCF Badaun stating therein that S.S.P.
Badaun had given report in his favour and
prayed for payment of the bill amount. On
03.12.2019, District Magistrate, Baduan
wrote a letter to the Regional Manager,
Uttar
Pradesh,
State
Warehouse
Corporation,
Regional
Office
Bareilly
regarding non-involvement of the petitioner
in any crime. The petitioner also submitted
an application to the District Manager PCF
836 INDIAN LAW REPORTS ALLAHABAD SERIES
informing him regarding his innocence and
payment of bills and also informed the
Managing Director PCF Lucknow. On this,
Deputy
General
Manager
(Fertilizer)
sought information from District Manager
PCF Badaun regarding his innocence.
Thereafter on 06.05.2020, the District
Manager P.C.F. Badaun informed the
Deputy General Manager (Fertilizer)that
the petitioner is exonerated from all the
accusations and the petitioner was entitled
for payment but till date no payment has
been made. Hence the present writ petition.

5. It is argued by Sri S.K. Verma,
learned Senior Advocate that the petitioner is
entitled for the amount of contract namely
15,96,674.75/- along with interest @ 12% as
well as the security money deposited by him.
He relied upon a letter dated 06.05.2020
written by District Manager, P.C.F. Budanun
to Deputy General Manager (Fertlizer) U.P.
Co-operative Federation Ltd. Lucknow, copy
of which is appended as Annexure 12 to the
petition. In view of the same, it is argued that
since the claim set up by the him has been
admitted by the District Manager P.C.F.
Budanun, therefore, he is entitled for
reimbursement of the amount as claimed by
him. The aforesaid letter dated 06.05.2020 is
reproduced below:-

यू०पी०कोऑपरेष्टिव
फेडरेशन
ष्टल०,ष्टजला कायाालय बदायूूँ

पत्रांिः-
पी०सी०एफ०/उिि०/लेखा/202021 वदनांि- 06.05.2020

सेवा में,

श्रीमान उप महा प्रबन्धक (उवारक)

उ०प्र० िोऑपरेवटि फेडरेशन वल०

स्टेशन रोड, लखनऊ

विर्यः- मैससि- आर०िे० रोडलाइन्स
इंन्द्रा चौि बदायूूँ िे लखित वबलों िा

भुगतान िरने िे संबंध में।

महोदय,

आप अपने पत्रांि पी०सी०एफ०/201920/14734 वदनांि 24.02.2020 िा संदभि ग्रहण
िरने िा िष्ट िरें, जो मैससि आर०िे०
रोडलाइन्स पररिहन ठेिेदार द्वारा फरिरी 18
से निंबर 2018 ति विए गए पररिहन एिं
हैडवलंग िायि िे चौदह वबलों िी धनरावश
1596674.75िे लखित भुगतान िे विर्यि है।
बदायूं उििरि अवनयवमतता प्रिरण में भंडार
नायि जगतपाल एिं पररिहन ठेिेदारों िे
विरूद्ध थाना वसविल लाइन्स में FIR NO-003
वद० 02.01.2019 िो दजि िराई गयी थी,
तदउपरान्त श्री मान िायि
ारी वनदेशि उििरि
ने
अपने
पत्र
संख्या-
पी०सी०एफ०/उििरि/2018-19/17574-75 वद०
10.01.2019 िे द्वारा ठेिेदारो िे भुगतान पर
रोि लगा दी थी।

उक्त प्रिरण में आपिो अिगत िराना है
वि
िररष्ठ
पुवलस
अधीक्षि
बदायूं
ने
वजलावधिारी बदायूं िो भेजी अपनी अााख्या
वद० 30.11.2019 िो अिगत िराया है वि
वििेचना
से
पररिहन
ठेिेदार
मैससि-
आर०िे०रोडलाइन्स 14- िदीर मािेट इन्द्रा
चौि बदायूं िे विरूद्ध िोई साक्ष्य नहीं है।
आख्या उििरि गिन प्रिरण में उक्त फमि िा
नाम नहीं है। उक्त फमि द्वारा विए गए िायि
अिवध में फमि पर िोई चालान पेंवडंग या अन्य
बिाया नहीं है। साक्ष्य हेतु बररष्ठ पुवलस
अधीक्षि महोदय बदायूं िे पत्र वद० 30.11.2019
िी छायाप्रवत साथ में संलग्न है।

अतः आप से अनुरोध है वि मैससि
आर०िे० रोडलाइन्स, इन्द्रा चौि,बदायूं द्वारा
विए गए पररिहन एिं हैडवलंग िायि िे अिशेर्
वबलों िे भुगतान िे संबंध में मुख्यालय स्तर से
आिश्यि वदशा वनदेश देने िा िष्ट िरें।

भिदीय

वजला प्रबन्धि
8 All. M/s. R.K. Road Lines Pvt. Ltd. Vs. Uttar Pradesh Cooperative Federation Ltd. & Ors.
837

पी०सी०एफ०

बदायूूँ

प्रवतवलवप सूचनाथि एिं आिश्यि
िायिाही हेतु प्रेवर्त

1. क्षेत्रीय प्रबन्धि, पी०सी०एफ०,
बरेली िो इस वनिेदन िे साथ वि उक्त भुगतान
हेतु अपनी संस्तुवत आख्या मुख्यालय प्रेवर्त
िरने हेतु।

वजला प्रबन्धि"

6. Learned counsel for the petitioner
in support of his case relied upon following
judgments :-

1. Writ C No.13388 of 2020 (Ms.
Biotech System Vs. State of U.P. and 4
others)

2. M/s Satish Chandra Vs. State
of U.P. and two others reported in 2006 (2)
ALJ 122 (DB)

3. The Chairman Railway Board
& others Vs. Mrs. Chadrima Das and
others reported in JT 2000 (1) SC 426.

7. The principle relief sought is with
regard to payment of contractual amounts
in terms of agreements said to have been
executed between the parties. Learned
counsel appearing for respondents has
raised objections with regard to the
maintainability of the writ petition on the
ground that the petitioner seeks to enforce
certain contractual rights and obligations
for which the appropriate remedy is to
approach the civil court.

8. Insofar as the preliminary objection
regarding maintainability of the writ
petition is concerned, learned counsel for
the petitioner contended that there is no
absolute bar to the maintainability of the
writ petition even in contractual matters
where there are disputed question of fact or
even where monetary claim are sought to
be raised.

9. Heard learned counsel for the
parties and perused the record.

10. The pleadings in the writ petition
and the material on record clearly indicate
that the petitioner had executed agreement
with the respondents for completion of
certain civil works. The petitioner claims to
have completed the work as per the terms
of the agreement and submitted his bills as
per specification for which his claims have
not been paid to him. The law with regard
to the maintainability of a writ petition in
contractual matters is fairly well settled,
and it has been consistently held that
although there is no absolute bar to the
maintainability of a writ petition in such
matters, the discretionary jurisdiction under
Article 226 of the Constitution of India,
may be refused in case of money claims
arising out of purely contractual obligations
where there are serious disputed questions
of fact with regard to the claims sought to
be raised.

11. The remedy under Article 226 of
the Constitution, has been held, to be
available in a limited sphere only when the
contracting party is able to demonstrate that
the remedy it seeks to invoke is a public
law remedy, in contradistinction to a
private law remedy under a contract.

12. The legal position in this regard is
that where the rights, which are sought to
be agitated, are purely of a private
character, no mandamus can be claimed,
and even if the relief is sought against the
State or any of its instrumentality the precondition for the issuance of a writ of
mandamus is a public duty. In a dispute,
which is purely contractual in nature, there
838 INDIAN LAW REPORTS ALLAHABAD SERIES
being no public duty element, to issue a
writ of mandamus.

13. The question as to whether
jurisdiction of the High Court under Article
226 of the Constitution would be open to
resolve disputes arising out of the contracts
between the State and the citizen was
considered by the Hon'ble Supreme Court in
the case of Radhakrishna Agarwal and
others vs. State of Bihar and others reported
in (1977) 3 SCC 457 and drawing a
distinction with the case of a contract entered
into by the State in exercise of a statutory
power, it was held that in cases where the
contract entered into between a State and the
person aggrieved is non-statutory and purely
contractual and the rights and liabilities of the
parties are governed by the terms of the
contract, and the petitioner complains about
breach of such contract, the remedy of Article
226 would not be open for such complaints
and no writ or order can be issued under
Article 226 in such cases to compel the
authorities to remedy the breach of contract
by the State. The Supreme Court took note of
the three types of cases pertaining to breach
of alleged obligation by the State or its
agents, as referred to in the judgment of the
High Court against which the appeals were
before it. The three types were stated as
follows :-

"(i) Where a petitioner makes a
grievance of breach of promise on the part
of the State in cases where on assurance or
promise made by the State he has acted to
his prejudice and predicament, but the
agreement is short of a contract within the
meaning of Article 299 of the Constitution;

(ii) Where the contract entered
into between the person aggrieved and the
State is in exercise of a statutory power
under
certain Act
or
Rules
framed
thereunder and the petitioner alleges a
breach on the part of the State; and

(iii) Where the contract entered
into between the State, and the person
aggrieved is non-statutory and purely
contractual and the rights and liabilities of
the parties are governed by the terms of the
contract, and the petitioner complains about
breach of such contract by the State."

14. In respect of cases of the third
category where questions purely of alleged
breach of contract were involved, it was
observed by the Apex Court as under :-

"15. It then, very rightly, held that
the cases now before us should be placed in
the third category where questions of pure
alleged breaches of contract are involved.
It held, upon the strength of Umakant
Saran v. The State of Bihar and Lekhraj
Satramdas
v.
Deputy
Custodian-cumManaging Officer and B.K.Sinha v. State of
Bihar that no writ or order can issue under
Article 226 of the Constitution in such
cases "to compel the authorities to remedy
a breach of contract pure and simple".

17. Learned counsel contends
that in the cases before us breaches of
public duty are involved. The submission
made before us is that, whenever a State or
its agents or officers deal with the citizen,
either when making a transaction or, after
making it, acting in exercise of powers
under the terms of a contract between the
parties, there is a dealing between the State
and the citizen which involves performance
of "certain legal and public duties." If we
were to accept this very wide proposition
every case of a breach of contract by the
State or its agents or its officers would call
for interference under Article 226 of the
Constitution. We do not consider this to be
a sound proposition at all."
8 All. M/s. R.K. Road Lines Pvt. Ltd. Vs. Uttar Pradesh Cooperative Federation Ltd. & Ors.
839

15. The question of maintainability of
a writ petition under Article 226 in the case
of a money claim again came up for
consideration in the case of Hindustan
Petroleum
Corporation
Limited
and
others Vs. Dolly Das reported in (1999) 4
SCC 450 and it was held that for invoking
the writ jurisdiction, involvement of any
constitutional
or
statutory
right
was
essential and in the absence of a statutory
right, the remedy under Article 226 could
not be availed to claim any money in
respect of breach of contract, tort or
otherwise. It was reiterated that in absence
of any constitutional or statutory rights
being involved, a writ proceeding would
not lie to enforce a contractual obligation
even if it is sought to be enforced against
the State or its authorities.

16. The maintainability of writ
petition under Article 226 in disputes
relating to terms of contract with a statutory
body fell for consideration in the case of
Kerala State Electricity Board and other
Vs. Kurien E. Kalathil and others reported
in (2000) 6 SCC 293 and it was held by the
Hon'ble Supreme Court that the writ court
would not ordinarily be the proper forum
for resolution of disputes relating to terms
of contract with a statutory body and
disputes
arising
from
contractual
or
commercial activities must be settled
according to ordinary principles of law of
contract. The observations made in the
judgement in this regard are as follows :-

"10...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 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. Clearly, the High Court
fell into an error in coming to the
conclusion that the contract in question
was statutory in nature.

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 of
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 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
840 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

17. The nature of the prerogative
remedy of a mandatory order as the normal
means for enforcing performance of public
duties by public authorities has been
considered in Administrative Law by
H.W.R.
Wade
&
C.F.
Forsyth
(Administrative
Law,
Tenth
Edition,
H.W.R. Wade & C.F. Forsyth), and a
distinction has been drawn between public
duties enforceable by a mandatory order,
which are usually statutory, and duties
arising merely from contract. It has been
stated thus :-

"A distinction which needs to be
clarified is that between public duties
enforceable by a mandatory order, which
are usually statutory, and duties arising
merely from contract. Contractual duties
are enforceable as matters of private law
by the ordinary contractual remedies, such
as
damages,
injunction,
specific
performance and declaration. They are not
enforceable by a mandatory order, which in
the first place is confined to public duties
and secondly is not granted where there are
other adequate remedies."

18. We may also gainfully refer to the
judgment in the case of Joshi Technologies
International Inc. vs. Union of India and
others (2015) 7 SCC 728 wherein the legal
position in this regard has been taken note
of and summarized in the following terms
:-

"69.
The
position
thus
summarised in the aforesaid principles has
to be understood in the context of
discussion that preceded which we have
pointed out above. As per this, no doubt,
there
is
no
absolute
bar
to
the
maintainability of the writ petition even in
contractual matters or where there are
disputed questions of fact or even when
monetary claim is raised. At the same time,
discretion lies with the High Court which
under certain circumstances, it can refuse
to exercise. It also follows that under the
following circumstances, "normally", the
Court would not exercise such a discretion:

69.1. The Court may not examine
the issue unless the action has some public
law character attached to it.

69.2. Whenever a particular
mode of settlement of dispute is provided in
the contract, the High Court would refuse
to exercise its discretion under Article 226
of the Constitution and relegate the party to
the said mode of settlement, particularly
when settlement of disputes is to be
resorted
to
through
the
means
of
arbitration.

69.3. If there are very serious
disputed questions of fact which are of
complex nature and require oral evidence
for their determination.

69.4.
Money
claims
per
se
particularly arising out of contractual
obligations are normally not to be
entertained
except
in
exceptional
circumstances.

70. Further, the legal position
which emerges from various judgments of
this
Court
dealing
with
different
situations/aspects relating to contracts
entered into by the State/public authority
with private parties, can be summarised as
under:

70.1. At the stage of entering into
a contract, the State acts purely in its
executive capacity and is bound by the
obligations of fairness.
8 All. M/s. R.K. Road Lines Pvt. Ltd. Vs. Uttar Pradesh Cooperative Federation Ltd. & Ors.
841

70.2. State in its executive capacity,
even in the contractual field, is under
obligation to act fairly and cannot practise
some discriminations.

70.3. Even in cases where question
is of choice or consideration of competing
claims before entering into the field of
contract, facts have to be investigated and
found before the question of a violation of
Article 14 of the Constitution could arise. If
those facts are disputed and require
assessment of evidence the correctness of
which can only be tested satisfactorily by
taking
detailed
evidence,
involving
examination
and
cross-examination
of
witnesses, the case could not be conveniently
or satisfactorily decided in proceedings under
Article 226 of the Constitution. In such cases
the Court can direct the aggrieved party to
resort to alternate remedy of civil suit, etc.

70.4. Writ jurisdiction of the High
Court under Article 226 of the Constitution
was not intended to facilitate avoidance of
obligation voluntarily incurred.

70.5.
Writ
petition
was
not
maintainable to avoid contractual obligation.
Occurrence
of
commercial
difficulty,
inconvenience or hardship in performance of
the conditions agreed to in the contract can
provide no justification in not complying with
the terms of contract which the parties had
accepted with open eyes. It cannot ever be
that a licensee can work out the licence if he
finds it profitable to do so: and he can
challenge the conditions under which he
agreed to take the licence, if he finds it
commercially inexpedient to conduct his
business.

70.6. Ordinarily, where a breach of
contract is complained of, the party
complaining of such breach may sue for
specific performance of the contract, if
contract is capable of being specifically
performed. Otherwise, the party may sue for
damages.

70.7. Writ can be issued where
there is executive action unsupported by
law or even in respect of a corporation
there is denial of equality before law or
equal protection of law or if it can be
shown that action of the public authorities
was without giving any hearing and
violation of principles of natural justice
after holding that action could not have
been taken without observing principles of
natural justice.

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
842 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. The question of maintainability of
the writ petition under Article 226 for
enforcement of a contractual right again
came up again in the case of Life
Insurance Corporation of India and
others vs. Asha Goel (Smt.) and another
reported in (2001) 2 SCC 160, and it was
held that pros and cons of fact-situation
should be carefully weighed and the
determination of the question as to when a
claim can be enforced in writ jurisdiction
would depend on consideration of several
factors like, whether the writ petitioner is
merely
attempting
to
enforce
his
contractual rights or the case raises
important
questions
of
law
and
constitutional issues, the nature of dispute
raised; the nature of enquiry necessary for
determination of the dispute etc. It was held
that the matter would be required to be
considered in the facts and circumstances
of each case. The observations made in the
judgement in this regard are as follows :-

"10.
Article
226
of
the
Constitution
confers
extraordinary
jurisdiction on the High Court to issue high
prerogative writs for enforcement of the
fundamental rights or for any other
purpose. It is wide and expansive. The
Constitution does not place any fetter on
exercise of the extraordinary jurisdiction. It
is left to the discretion of the High Court.
Therefore, it cannot be laid down as a
general proposition of law that in no case
the High Court can entertain a writ petition
under Article 226 of the Constitution to
enforce a claim under a life insurance
policy. It is neither possible nor proper to
enumerate exhaustively the circumstances
in which such a claim can or cannot be
enforced by filing a writ petition. The
determination of the question depends on
consideration of several factors like,
whether a writ petitioner is merely
attempting to enforce his/her contractual
rights or the case raises important
questions of law and constitutional issues,
the nature of the dispute raised; the nature
of inquiry necessary for determination of
the dispute etc. The matter is to be
considered in the facts and circumstances
of each case. While the jurisdiction of the
High Court to entertain a writ petition
under Article 226 of the Constitution
cannot be denied altogether, courts must
bear in mind the self-imposed restriction
consistently followed by High Courts all
these years after the constitutional power
came into existence in not entertaining writ
petitions filed for enforcement of purely
contractual rights and obligations which
involve disputed questions of facts. The
courts have consistently taken the view that
in a case where for determination of the
dispute raised, it is necessary to inquire
8 All. M/s. R.K. Road Lines Pvt. Ltd. Vs. Uttar Pradesh Cooperative Federation Ltd. & Ors.
843
into facts for determination of which it may
become necessary to record oral evidence a
proceeding under Article 226 of the
Constitution, is not the appropriate forum.
The position is also well settled that if the
contract entered between the parties
provide an alternate forum for resolution of
disputes arising from the contract, then the
parties should approach the forum agreed
by them and the High Court in writ
jurisdiction should not permit them to by
pass the agreed forum of dispute resolution.
At the cost of repetition it may be stated
that in the above discussions we have only
indicated some of the circumstances in
which the High Court have declined to
entertain petitions filed under Article 226
of the Constitution for enforcement of
contractual rights and obligation; the
discussions
are
not
intended
to
be
exhaustive. This Court from time to time
disapproved of a High Court entertaining a
petition
under
Article
226
of
the
Constitution in matters of enforcement of
contractual
rights
and
obligation
particularly where the claim by one party is
contested by the other and adjudication of
the dispute requires inquiry into facts. We
may notice a few such cases: Mohd. Hanif
v. State of Assam (1969) 2 SCC 782;
Banchhanidhi Rath v. State of Orissa
(1972) 4 SCC 781; Rukmanibai Gupta v.
Collector, Jabalpur (1980) 4 SCC 556;
Food Corpn. of India v. Jagannath Dutta
1993 Supp (3) SCC 635 and State of H.P. v.
Raja Mahendra Pal (1999) 4 SCC 43."

20. Taking a similar view where a
contractual right was sought to be enforced
by filing a writ petition, this Court in the
case M/s Lalloo Ji Rajiv Chandra And
Sons vs. Meladhikari Prayagraj Mela
Authority and others reported in 2019
ADJ Online 0081, reiterated the legal
position that in a case of non statutory
contract, the remedy available to the
contractor, if he is aggrieved by nonpayment, would be either to file a civil suit
or if there is an arbitration agreement
between the parties, to invoke the terms of
the agreement. The writ petition was
dismissed with the following observations
:-

"10. In the present case there is
nothing to held that the contract is a
statutory contract. The remedy of the
contractor, if he is aggrieved by nonpayment, would be to either file an
ordinary civil suit or if there is an
arbitration agreement between the parties,
to invoke the terms of the agreement.

11. In our view, it will not either
be appropriate or proper for the Court
under Article 226 of the Constitution to
entertain a petition of this nature. The grant
of relief of this nature would virtually
amount to a money decree. The petitioner is
at liberty to take recourse to the remedies
available by raising such a claim either
invoking an arbitration clause (if it exists in
the contract between the parties) or if there
is no provision for arbitration, to move the
competent civil court with a money claim."

21. The general principles which may
be culled out from the aforementioned
judgments is that in a case where the
contract entered into between the State and
the person aggrieved is of a non-statutory
character and the relationship is governed
purely in terms of a contract between the
parties, in such situations the contractual
obligations are matters of private law and a
writ would not lie to enforce a civil liability
arising purely out of a contract. The proper
remedy in such cases would be to file a
civil suit for claiming damages, injunctions
or specific performance or such appropriate
reliefs in a civil court. Pure contractual
844 INDIAN LAW REPORTS ALLAHABAD SERIES
obligation in the absence of any statutory
complexion would not be enforceable
through a writ.

22. The remedy under Article 226 of
the Constitution being an extraordinary
remedy, it is not intended to be used for
the purpose of declaring private rights of
the parties. In the case of enforcement of
contractual rights and liabilities the
normal remedy of filing a civil suit being
available to the aggrieved party, this
Court may not exercise its prerogative
writ
jurisdiction
to
enforce
such
contractual obligations.

23. Insofar as the cases cited by the
learned counsel for the petitioner is
concerned in the case of The Chairman
Railway Board (supra) is concerned, in
the aforesaid case a Bangladeshi woman
was subjected to rape in Railway Yatri
Niwas Howrah. A writ petition was filed
before the High Court for compensation
by an advocate. The question raised
before the Hon'ble Supreme Court that
whether an advocate has locus standi to
file petition or not. It was held by the
Apex Court that the petition fled by the
Advocate in the facts and circumstances
of the case is maintainable. Insofar as the
case of Satish Chandra (supra) is
concerned, in this case, amount payable
towards work done was admitted by the
concerned authority. In the aforesaid
circumstances, it was held by a Division
Bench of this Court that the directions for
payment can be issued in the writ
jurisdiction. In the present case, the ratio
of this judgement will also not help the
petitioner, since in the present case
amount payable towards work done by
the petitioner was not admitted by the
authorities. Insofar as the judgment in the
case of Ms. Biotech System (supra) is
concerned, after adjudicating the issue in
great detail, the Division Bench of this
Court was pleased to decline to exercise
extra-ordinary jurisdiction under Article
226 of the Constitution of India as not
maintainable in the matter.

24. We may, therefore, add that it
cannot be held in absolute terms that a
writ petition is not maintainable in all
contractual matters seeking enforcement
of obligations on part of the State or its
authorities. The limitation in exercising
powers under Article 226 in contractual
matters is essentially a self-imposed
restriction. A case where the amount is
admitted and there is no disputed
question of fact requiring adjudication of
detailed evidence and interpretation of
the terms of the contract, may be an
exception to the aforementioned general
principle.

25. In the present case, the claims
sought to be set up by the petitioner has
been strongly disputed. The payments in
respect of which the petitioner have raised
their claims pertain to contractual and
commercial obligations, and the pleadings
and the material which are on record, do
not in any manner indicate that it is a public
law remedy which the petitioners are
seeking to invoke so as to persuade this
Court
to
exercise
its
discretionary
jurisdiction.

26. In view of the foregoing
discussions, and keeping in view the facts
of the case at hand, we are not inclined to
exercise our extraordinary jurisdiction
under Article 226 of the Constitution.

27. The writ petitions is accordingly
dismissed.
----------
8 All. Durvin Singh Vs. State of U.P. & Ors.
845
(2021)08ILR A845
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 14162 of 2021

Durvin Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Kumar Pandey

Counsel for the Respondents:
C.S.C.

Fair Price Shop - National Food Security
Act, 2013
- Uttar Pradesh Essential
Commodities (Regulation of Sale and
Distribution
Control)
Order,
2016
-
Constitution of India, Art. 226 - Locus
standi of complainant - complainant has
no Locus standi to maintain writ petition
against order of the licensing authority or
appellate
court
reinstating
fair
shop
dealership - Remedy to card holder -
Irregularities committed by the fair price
shop dealer in distribution of essential
commodities An inquiry can be initiated on
the complaint - card holder-complainant
may tender/lead evidence against the
dealer & in support of his complaint in the
enquiry - but card-holder cannot decide
the quantum of punishment to be imposed
on a defaulting fair price shop dealer -
card-holder can be granted compensation
or allowance for denial of the entitlements
under the Act of 2013
Dismissed. (E-4)
List of Cases cited:
1. Ashfaq Vs State of U.P. & ors. 2008(4) ADJ
416
2.Sriram Prasad & anr .Vs St.of U.P. & ors. 2016
(6) ADJ 122
3.Dharam Raj Vs St. of U.P. & ors. 2010 (2)
AWC 1878 (LB)
4.Gram Vikash Sewa Samiti Vs St. of U.P. & ors.
Writ C No. 19941 of 2018
5. Nazuk Vs St. of U.P. & ors. 2019 (12) ADJ
832
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Complaints were made by the
petitioner against the respondent No.4-fair
price shop dealer of village Nagla Bhagat,
Tehsil
and
District
Etah,
alleging
malpractices in distribution of essential
commodities on various dates. An enquiry
was caused to be conducted into the
aforesaid complaints. The enquiry report
indicted the fair price shop dealer on
certain
charges,
which
led
to
the
termination of his fair price shop licence.
The fair price shop licence of the
respondent No.4 was cancelled by order
dated 24.07.2020. The fair price shop
dealer took the order of cancellation in
appeal before the appellate authority. The
Deputy Commissioner (Food and Civil
Supplies), Aligarh Division, Aligarh by
order dated 08.03.2021 passed in Appeal
No. 00354 of 2020 (Computerized Case
No. C202018000000354(Anar Singh Vs.
State of U.P. and others) has reversed the
order of termination dated 24.07.2020 and
reinstated the respondent no. 4 as the fair
price shop dealer.

2. The petitioner is aggrieved by the
order dated 08.03.2021 passed by the
Deputy Commissioner (Food and Civil
Supplies), Aligarh Division, Aligarh in the
aforesaid appeal. The petitioner is the
complainant.