# New Tech Imports Pvt. Ltd v. Union Of India & Ors

- **Citation:** (2019) 3 ILRA 1199
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-01
- **Case number:** Writ C No. 8225 of 2019
- **Bench:** Sudhir Agarwal, Rajendra Kumar-Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-tech-imports-pvt-ltd-v-union-of-india-ors-44645
- **Pages:** 11

## Headnote

A. Constitution of India, Article 226 -
Scope; Indian Contract Act, 1872 -
Private Contract - Principles of Natural
Justice do not apply to termination. It is
not a quasi-judicial Act. Contract cannot
be enforced by Writ Court.

Writ Petition dismissed (E-9)

Cases referred: -

1.Bareilly Development Authority Vs Ajai Pal
Singh, AIR (1989) SC 1076

2.Kerala St. Electricity Board & anr. Vs Kurian
E. Kalathil & ors., (2000) (6) SCC 293

3.St. of U.P. & anrs. Vs Bridge & Roof Co.
(India) Ltd., AIR (1996) SC 3515

4.The Rajasthan St. Industrial Development &
Investment Corp. & anr. Vs Diamond & Gem
Development Corporation Ltd. & anr., (2013)
(5) SCC 470

## Text

3 All. New Tech Import Pvt. Ltd. Vs. Union of India & Ors.
1199
The writ petition was filed in 2017. In the
short counter affidavit filed on behalf of the
respondent nos.1, 2 and 3 on 10.2.2017 it is
not at all stated that any show cause notice as
contemplated under clause (a) of section 124 of
the Customs Act has been issued. It is only
alleged in the counter affidavit that the
investigation with regard to the fraudulent
drawback is being going on. Even no
justification has been given for not taking steps
in accordance with the provisions contained in
Sub Section (2) of Section 110 and proviso
thereto, as such, it is obligatory on part of the
respondent customs authority to defreeze the
bank account of the petitioner but the
respondents customs authority have not yet
defreeze the bank account of the petitioner.

23. In view of the facts stated above,
it is clear that the bank account cannot be
remained freeze during investigation for
the period as contemplated under Subsection (2) of Section 110 of the Customs
Act, 1962. The respondents have failed to
pass appropriate order for defreeze of the
bank account of the petitioner, therefore, a
mandamus
is
issued
directing
the
respondent nos. 3 & 4 to defreeze the
bank account of the petitioner being
Account No. 16250200002619 at Federal
Bank Ltd., Ground Floor, Gandhi Nagar,
Rampur Road, Moradabad.

24. In the facts and circumstances of
the case a mandamus is issued to the
respondents to permit the petitioners
forthwith to operate his current account
no. 16250200002619 held at Fedral Bank
Limited, Ground Floor, Gandhi Nagar,
Rampur Road, Moradabad.

25. With the aforesaid observations,
the writ petition is allowed to the extent
indicated above.
----------
(2019)11ILR A1199

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ C No. 8225 of 2019

New Tech Imports Pvt. Ltd. ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Nandan, Sri Udayan Nandan,
Sri Sondhi Narula Dalal

Counsel for the Respondents:
Sri Rajnish Kumar Rai

A. Constitution of India, Article 226 -
Scope; Indian Contract Act, 1872 -
Private Contract - Principles of Natural
Justice do not apply to termination. It is
not a quasi-judicial Act. Contract cannot
be enforced by Writ Court.

Writ Petition dismissed (E-9)

Cases referred: -

1.Bareilly Development Authority Vs Ajai Pal
Singh, AIR (1989) SC 1076

2.Kerala St. Electricity Board & anr. Vs Kurian
E. Kalathil & ors., (2000) (6) SCC 293

3.St. of U.P. & anrs. Vs Bridge & Roof Co.
(India) Ltd., AIR (1996) SC 3515

4.The Rajasthan St. Industrial Development &
Investment Corp. & anr. Vs Diamond & Gem
Development Corporation Ltd. & anr., (2013)
(5) SCC 470

5. Zonal Manager, Central Bank of India Vs
Devi Ispat Ltd. & ors., (2010) (11) SCC 186
1200 INDIAN LAW REPORTS ALLAHABAD SERIES
6.St. of Gujarat & ors. Vs Meghji Pethraj Shah
Charitable Trust & ors., (1994) (3) SCC 552
7. Pimpri Chinchwad Municipal Corp. & ors. Vs
Gayatri Construction Co. & anr., (2008) (8)
SCC 172
8.Michigan Rubber (India) Ltd. Vs St. of
Karnataka & ors. (2012) 8 SCC 216
9. MAA Binda Express Carrier Vs North East
Frontier Railway (2014) 3 SCC 760

(Delivered by Hon'ble Sudhir Agarwal, J)

1. Heard Sri Shashi Nandan, Senior
Advocate assisted by Sri Udayan Nandan,
learned counsel for petitioner and Sri Rajnish
Kumar Rai, learned counsel for respondents.

2. This writ petition under Article
226 of Constitution of India has been
filed by sole petitioner M/s New Tech
Imports Pvt. Ltd, registered Office at
1/778 Nicholson Road, Kashmere Gate,
Delhi praying for issue of writ of
certiorari to quash order dated 15.01.2019
which is a counter offer (Annexure-18 to
the writ petition) and also to quash order
dated 22.01.2019 (Annexure-22 to the
writ petition) whereby Purchase Order
dated 24.12.2018 for supply of "Turbo
Wheel Impeller Balance Assembly" has
been cancelled. Petitioner has also prayed
for issue of writ of certiorari to quash Etender No.101810202 dated 22.02.2019
(Annexure-25 of the writ petition) issued
by respondent 3 , Principal Chief
Materials Manager (hereinafter referred to
as "PCMM"), at Diesel Locomotive
Works, Varanasi (hereinafter referred to as
"DLW"). Lastly, a writ of mandamus has
been prayed for commanding respondents
to strictly comply with terms and
conditions
of
Purchase
Order
no.101810201.18115719 dated 24.12.2018
and to issue Modification Advice for 116 units
in Purchase order no.101710860.17119450
dated 14.10.2017.

3. Facts in brief giving rise to
present writ petition are, that, petitioner is
a Private Limited Company registered
under the provisions of Companies Act,
1956 (hereinafter referred to as "Act,
1956") vide certificate of Incorporation
dated 19.04.1995 issued by Additional
Registrar of Companies, National Capital
Region of Delhi and Haryana. Petitioner
2, Manish Gupta has been authorized by
Board of Directors of Company to file
and pursue this litigation vide Resolution
dated 27.02.2019.

4. DLW, Varanasi is a production unit
owned by Union of India and Ministry of
Railways. It manufactures Diesel-Electric
Locomotives and its spare parts. For the
aforesaid production it needs various materials
and goods and for purchase thereof it issues
tenders for various services, supply of
spare/goods of different description and
quantities, from time to time. Respondent 3 is
the
Officer
of
DLW
authorized
for
procurement and supply of goods, works and
services, sale of materials and leasing of items
etc, for the purpose of production and
manufacture of Diesel-Electric Locomotives.
Respondent 3 is Tender Accepting Authority
(hereinafter referred to as "TAA"). Respondent
3 heads the Material Management Department
(Stores Organization) of respondent 2 assisted
by Chief Materials Manager (hereinafter
referred to as "CMM"), Deputy Chief
Materials Manager (hereinafter referred to as
"Dy.CMM"),
Senior
Materials
Manager
(hereinafter referred to as "SMM")), Assistant
Materials Maintenance (hereinafter referred to
as "AMM")) and Secretary to PCMM at SMM
level.
Additionally,
Stores
Headquarters
discharges
function
of
overseeing
the
administration of Stores set up in the field units
3 All. New Tech Import Pvt. Ltd. Vs. Union of India & Ors.
1201
and purchase function on behalf of Office of
respondent 2.

5. Respondent 3, on 26.04.2018, at
16.33 hours, invited E-bids against Tender
no.101810200 with closing date/time
27.06.2018
till
15.00
hours
for
procurement of supply of "Turbo Wheel
Impeller Balance Assembly". During
subsistence of E-tenders closing date/time
was extended till 02.08.2018, 15.00 hours
and same was published on website. Later
on tender was cancelled by order dated
21.07.2018. This was done by office of
respondent 4 (i.e. Dy. C.M.M.) to benefit
unduly and unjustly to M/s Bharat Forge
Ltd. which was making attempt to
become a vendor at the relevant time.

6. Another E-tender was floated by
respondent 3 on 16.10.2018 at 15.45 P.M.
vide Tender no.101810201, with closing
date/time on 23.11.2018 at 15.00 hours
for procurement and supply of 551
numbers of 'Turbo Wheel Impeller
Balance Assembly'. One of the vital
condition to tender E-bids/quotation was
that builder must be an 'approved vendor'
in 'Part-1 category' on the date of opening
of E-tenders. Relevant Clause 1.26 of
tender document reads as under :

"1.26 Items sourced from RCF/
RDSO/ ICF/ CLW/ DLW/ DLMW/ CORE
approved vendors.

1.26.1. Wherever necessary as
per policy of procurement and is so
indicated in the tender schedule, regular
purchase order for bulk quantity will be
normally placed only on those firms who
have been approved in Part-I category by
the authorised vendor approving unit for
respective items viz.:-

a. DLW,

b. RDSO,

c. DLMW,

d. CLW,

e. RCF/KXN,

f. ICF,

g. CORE

1.26.2. The approval status of
the firm will be reckoned as on the date
of the tender opening and not thereafter
except
in
case
of
downgrading/removal/suspension/bannin
g etc. after opening of tender, when
changes shall be taken into account while
considering the offer."

(emphasis added)

7. M/s Walbar LLC, Mexico
(hereinafter referred to as "Principal
Vendor") is an "Approved Vendor" in
Part-1 Category. The Principal Vendor
appointed petitioner, M/s New Tech
Imports Pvt. Ltd. (hereinafter referred to
as "petitioner-agent") as its Exclusive
Tender
Specific
Authorized
Vendor/Supplier
vide
letter
dated
17.10.2018, and authorized petitioner to
tender bid to the subject tender dated
16.10.2018. Petitioner submitted digitally
signed
indigenous
E-bid
dated
22.11.2018. M/s Bharat Forge Ltd. was
not an 'Approved Vendor' as per Clause
1.26.1 of bid document on the date of
opening of tender hence, its bid was
rejected by respondent 2. The bid of
petitioner-agent was accepted. During
negotiation petitioner also discounted its
bid by 1 % on the insistence by
respondents.
Respondent
2
issued
Purchase
Order
dated
24.12.2018
(Annexure-7 to the writ petition) for
supply of 529 units of 'Turbo Wheel
Impeller Balance Assembly' and rate per
unit was Rs.987525.00. The delivery was
to start by 14.01.2019 and to be
completed by 31.12.2019. On 26.12.2018,
1202 INDIAN LAW REPORTS ALLAHABAD SERIES
however, petitioner received an E-mail
from respondent 4 instructing it not to
take any action on the basis of Purchase
Order dated 24.12.2018 as the same was a
'System Generated E-mail' and petitioner
was directed to wait till 'Ink Signed
Purchase Order' was received by him.
Petitioner sent E-mail dated 27.12.2018
acknowledging thanks with respect to
issue of Purchase Order and protesting
against E-mail dated 26.12.2018. It
requested to withdraw E-communication
dated 26.12.2018. Respondent 4 again
issued another E-mail on 28.12.2018
reiterating that Purchase Order being a
'System
Generated
E-mail'
sent
on
24.12.2018 is not to be accepted open,
since, it has no legal validity. Petitioner
sent letter dated 31.12.2018 claiming that
Purchase Order dated 24.12.2018 was
legally
valid
executed
instrument/document. Petitioner then sent
a letter dated 08.01.2019 for immediate
resolution of the matter.

8. Thereafter respondent 4 issued
counter offer on 15.01.2019 (Annexure18 to the writ petition) reducing quantity
to 423 and per unit rate as Rs.829540.00.
Petitioner got aggrieved and disgraced by
counter offer and sent letter dated
17.01.2019 requesting urgent hearing and
meeting with officials of respondent 3. It
also sent letter dated 24.01.2019 seeking
time till 11.02.2019 to reply counter offer.
This time was allowed by respondent 4
vide letter dated 25.01.2019. However,
without waiting to the extended time i.e.
11.02.2019, Modification Advice dated
22.01.2019 was issued in which Purchase
Order dated 24.12.2018 was shown as
cancelled. Against above illegal action,
petitioner protested vide letter dated
18.02.2019 but unilaterally respondent 3
proceeded to float fresh tender notice
inviting
E
tenders
against
Tender
no.101810202 with closing date/time
dated 25.03.2019 at 15.00 hours vide
tender notice dated 22.02.2019.

9. The counter offer, cancellation
order and fresh tender notice have been
challenged by petitioner on the ground
that on issue of purchase order dated
24.12.2018, contract was concluded and it
could not have been cancelled or
modified; the entire exercise is malicious
to give benefit to M/s Bharat Forge Ltd; it
has never been the practice of respondents
to
issue
Purchase
Order/Acceptance
Orders in Ink Signed letters, but same
were always issued digitally signed and
for the first time exception has been made
showing apparent malice on the part of
respondents; Petitioner has already acted
upon purchase order and shipment of
goods
had
commenced,
therefore,
respondents cannot withdraw the same;
without
addressing
petitioner's
representation and grievance, it was not
open to respondents to cancel purchase
order and thereafter proceed for fresh
tender exercise; the entire exercise is in
utter violation of principles of natural
justice, malafide and discretionary to
favour M/s Bharat Forge Ltd. and even
otherwise illegal; act of respondents is
against contractual principles and there is
no justified ground either to modify
earlier purchase order or to cancel the
same.

10. On behalf of respondents a short
counter affidavit sworn by Mohammad
Hussain,
Senior
Material
Manager
D.L.W., Varanasi on 12.03.2019 has been
filed
stating
that
Global
Tender
No.101810201 opened on 23.11.2018 for
procurement of Turbo Wheel Impeller to
DLW Part No.16080385 for quantity 515.
3 All. New Tech Import Pvt. Ltd. Vs. Union of India & Ors.
1203
On
tender
opening
date,
following
approval sources were available in the
item :

(i) M/s Walbar Inc./USA

(ii) M/s Electro Motive Diesel
Inc./USA

(iii) M/s GE Transportation
Parts LLC/USA

(iv)
M/s
Walbar
Engine
Components LLC/Mexico

11. Details of offers received against
aforesaid tender shows 6 tenderers, out of
which 3 were unapproved/unsuitable and
one was unapproved/suitable for extended
trial
order
and
rest
2
were
approved/suitable. Details given in para 5
of Supplementary Counter Affidavit are
as under :-
Sl.
No.
Name of
Tenderer
(M/S)
All incl.
unit rate
Approval Status/Technical
Suitability.
L-1
Flesh
Forge
Pvt.
Ltd./Raig
arh
Rs.6825
00.80
Unapproved/Unsuitable
L-2
Press
Comp.
Internatio
nal
Pvt.
Ltd./Ban
glore
Rs.6982
50.00
Unapproved/Unsuitable
L-3
Shakthite
ch
Manufact
uring
India Pvt.
Ltd.
Coimbat
ore
Rs.7497
00.00
Unapproved/Not suitable
for further ordering
L-4
Bharat
Forge
Ltd./Pun
e
Rs.8295
40.00
Unapproved/Suitable
for
Ext. Trial order
L-5
New
Tech
Imports
Pvt.
Ltd./Delh
Rs.1047
375.00
Approved/Suitable
i
(On
behalf of
M/s
Walbar
Engine
Compone
nt/USA)
L-6
EMD
Locomoti
ve
Technolo
gies Pvt.
Ltd./Noi
da
Rs.1067
561.39

Approved/Suitable Subject
to confirmation of various
point.

12. The matter was considered by
SAG
level
Tender
Committee
and
recommendation was accepted by 'Tender
Acceptance Authority' on 22.12.2018, as
follows :

"(i) To place extended trial
order for 106 nos.(20 % of NPQ) inside
tendered quantity on M/s Bharat Forge
Ltd./Pune at their quoted rates i.e.
703000.00+
GST@
18%,
TUR
Rs.829540.00 each.

(ii) To place regular order for
423 nos.(80 % of NPQ) on M/s New Tech
Imports Pvt. Ltd./Delhi at their negotiated
rates i.e. @ Rs.987525.00 each +GST @
5 % TUR Rs.1036901.25 each."

13. Accordingly, purchase orders
were prepared on 24.12.2018. It is said
that after generation of purchase order in
MMIS, as per existing scheme of things,
System Generated mail along with soft
copies of these unsigned purchase orders
were automatically sent to vendor's mail
box (through e-mails by MMIS), the
purpose of which is just to give advance
intimation to the vendor. It was not signed
or digitally signed document since it was
issued just for information. It did not
result in concluded contract. There has to
be a signed hard copy of purchase order
issued by Purchase Officer and send
1204 INDIAN LAW REPORTS ALLAHABAD SERIES
through
normal
channel
of
communications.
Chief
Design
Engineer/DLW (CDE/DLW) vide note
no.CDE/DLW dated 22.12.2018, received
on 24.12.2018 informed that M/s Bharat
Forge Ltd. Pune has been enlisted as
'Approved Vendor' for this item in DLW
Composite Vendor Director. Thereafter,
'Tender
Accepting
Authority'
on
24.12.2018 instructed to review the case
in
the
light
of
Chief
Design
Engineer/DLW's note dated 22.12.2018.
Subsequently,
both
vendors
were
intimated on 26.12.2018 (25.12.2018
being a gazetted holiday) directing not to
take any action against these System
Generated E-mails till formal Ink Signed
Purchase Orders is not received by them.
Tender
Committee
thereafter
has
reviewed the case and recommended to
cancel purchase order. It issued counter
offer to petitioner for the price quoted by
M/s Bharat Forge Ltd., Pune. Counter
offer,
consequently,
was
issued
to
petitioner
on
15.01.2019.
Modification/amendment for cancellation
of both purchase orders were issued on
22.01.2019. Petitioner by letter dated
24.01.2019 requested to extend time for
submission of their reply to counter offer
up to 11.02.2019 which was accepted
vide office letter dated 25.01.2019.
Petitioner against requested to extend
time up to 18.02.2019 vide letter dated
11.02.2019 with a clear stand that they
shall not seek any further extension.
Again this request was accepted by
respondent vide letter dated 14.02.2019
and petitioner was informed that if no
reply is received by 18.02.2019, it will be
treated as non-acceptance of counter
offer. Petitioner did not submit reply by
18.02.2019, hence, case was discharged
and Global Tender has been re-invited for
above item. Basic reason for cancellation
of Global Tender was huge difference in
rates of petitioner and M/s Bharat Forge
Ltd., Pune. Decision was taken by Tender
Committee in the best interest of
Railways to protect loss to Government
Exchequer to the extent of Rs.15 crores,
approximately, and also keeping in view
Government of India's policy giving boost
to "Make in India".

14. Petitioner has filed a short
rejoinder
affidavit
wherein
it
has
reiterated its stand as pleaded in the writ
petition. It is also reiterated that once
offer was expected and purchase order
was issued, thereafter Tender Committee
had no power to review the case or
modify any terms of already concluded
contract. It is also said that on 18.02.2019
a meeting was held and petitioner found
that some more matter needs to be
discussed and therefore, sent letter dated
18.02.2019 informing that petitioner shall
come to DLW on Thursday/Friday to
meet Chief Material Manager subject to
his availability, and therefore, contention
that petitioner did not submit reply on
18.02.2019 is not correct. It is also said
that M/s Bharat Forge Limited, Pune
being ineligible on the date of opening of
tender, could not have been brought in
and for its benefit earlier contract could
not have been cancelled.

15. Respondents have filed a short
counter affidavit which is also sworn by
Mohammad Hussain, Senior Material
Manager. It is said therein that Global
Tender No.101810201 was opened on
23.11.2018. Tender Committee held its
meeting on 05.12.2018 to consider offers
received against Global Tender opened on
23.11.2018. The
recommendation of
minutes were signed on 06/07.12.2018
and
recommendation
of
Tender
3 All. New Tech Import Pvt. Ltd. Vs. Union of India & Ors.
1205
Committee was approved on 07.12.2018.
A Supplementary Tender Committee's
meeting was held on 10.12.2018 and
20.12.2018 to discuss the final negotiated
offer of petitioner i.e. M/s New Tech
Import
Pvt.
Limited
submitted
on
08.12.2018.
Supplementary
Tender
Committee's minutes were put up to
Tender
Accepting
Authority,
which
approved the same on 21.12.2018 with
certain modifications. As per decision of
Tender Accepting Authority an extended
trial order of 106 number was to be
placed on M/s Bharat Forge Ltd., Pune
and regular order of 529 numbers on
petitioner i.e. M/s New Tech Import Pvt.
Limited. In the light of new development
of enlistment of M/s Bharat Forge
Limited (hereinafter referred to as "BFL")
as an Approved Source for subject item
on 22/24.12.2018, supplementary Tender
Committee meeting held on 28.12.2018
and
07.01.2019.
Tender
Committee
submitted its revised recommendations
for issue of counter offer to petitioner i.e.
M/s New Tech Import Pvt. Ltd. for 423
units at the rate of Rs.8,29,540/- per unit
at all-inclusive rate of M/s BFL, in supersession to its earlier recommendation.
Counter offer issued vide letter dated
15.01.2019
to
petitioner
Company.
Petitioner visited DLW on 23.01.2019 and
submitted
a
letter
on
24.01.2019
requesting respondent for extension of
time limit for submitting reply against
counter offer by 11.02.2019. Petitioner
failed to take final decision on counter
offer
and
again
vide
letter
dated
11.02.2019
requested
for
further
extension in time up to 18.02.2019 and
this was also accepted. Since, up to
18.02.2019 petitioner did not submit any
reply earlier counter offer was cancelled.
With regard to purchase order it is said
that purchase order was neither Digitally
Signed nor Ink Signed, therefore, no valid
purchase order was communicated to
petitioner,
hence,
question
of
any
concluded contract does not arise. It is
also said that enforcement of contractual
obligation in a writ petition under Article
226 of the Constitution, does not lie.
Reliance has been placed on Supreme
Court's judgment in Michigan Rubber
(India) Ltd. vs. State of Karnataka and
Ors. (2012) 8 SCC 216 and MAA Binda
Express
Carrier
Vs
North
East
Frontier Railway (2014) 3 SCC 760. It
is reiterated that decision has been taken
in public interest to protect public revenue
and also to give boost to "Make in India"
policy and, therefore, no interference
would be justified under Article 226 of
the Constitution.

16.

On
behalf
of
respondents
preliminary objection has been raised and
submitted that it is a pure and simple case of
enforcement of contract, by means of writ
petition under Article 226 of the Constitution,
hence, it is not maintainable. Petitioner has
remedy in common law. It is also contended
that there was no 'concluded contract' and in
any case even if there is concluded contract
and the same has been wrongly cancelled, by
way of writ petition under Article 226 of the
Constitution,
petitioner
cannot
seek
enforcement of contract and remedy lies, at
the best, for claiming damages for alleged
breach of contract. Lastly, it is contended that
respondents were well within their rights to
modify their offer so long as contract has not
concluded, also since petitioner did not
respond within time which was duly extended
twice as per own case of petitioner himself,
and thus it has rightly been cancelled.

17.

First
question
up
for
consideration is "whether present writ
petition for enforcement of a simple
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
commercial contract be entertained under
Article 226 of Constitution or be declined
so as to relegate petitioner to avail
remedy in common law".

18. It is true that remedy under Article
226 of the Constitution of India is not
absolutely barred but it has been held
repeatedly that in the matter of pure and
simple commercial contract, extraordinary
constitutional remedy under Article 226 is
not a substitute for getting the contract
executed or for allowing damages to a party
for alleged breach of contract since remedy
lies in common law by filing suit for
enforcement of contract wherever it is
permissible or for damages/ compensation
for alleged wrongful breach of contract.
Reason being that such matters involves
recording of evidence, oral and documentary,
and remedy under Article 226 of the
Constitution cannot be made a substitute of
common law civil proceedings and parties
must avail such remedy.

19. An exception has been carved
out however in cases where contract is
"statutory contract" but it has not been
disputed before us by counsel for parties
that agreement/ contract, in the case in
hand, is not a statutory contract.

20.

In
Bareilly
Development
Authority vs. Ajai Pal Singh, AIR 1989 SC
1076 Court held that if a person is aggrieved
in respect of non statutory and purely
contractual rights flowing from a contract,
remedy under Article 226 of the Constitution
is not available. Court said that no writ or
order can be issued under Article 226 so as to
compel the authorities to remedy a breach of
contract, pure and simple.

21. In Kerala State Electricity
Board and another Vs. Kurian E.
Kalathil and others, 2000(6) SCC 293
Court said that if a term of contract is
violated, ordinarily remedy is not the writ
petition under Article 226. Disputes
arising out of terms of such contract or
alleged breaches have to be settled by
ordinary principles of law of contract.
Court said that such case is a matter for
adjudication by a Civil Court or in
arbitration if provided for in the contract.

22.

Referring
to
Bareilly
Development Authority vs. Ajai Pal
Singh (supra), and State of U.P. and
others vs. Bridge & Roof Co. (India)
Ltd., AIR 1996 SC 3515, Court in The
Rajasthan
State
Industrial
Development
and
Investment
Corporation and Anr. vs. Diamond and
Gem Development Corporation Ltd.
and Anr., 2013(5) SCC 470 observed as
under:

"There can be no dispute to the
settled
legal
proposition
that
matters/disputes relating to contract
cannot be agitated nor terms of the
contract can be enforced through writ
jurisdiction under Article 226 of the
Constitution. Thus, writ court cannot be a
forum to seek any relief based on terms
and conditions incorporated in the
agreement by the parties." (Emphasis
added)

23. In Rajasthan State Industrial
Development
and
Investment
Corporation (supra), Court further said:

"It is evident from the above,
that generally the court should not
exercise its writ jurisdiction to enforce the
contractual
obligation.
The
primary
purpose of a writ of mandamus, is to
protect and establish rights and to impose
3 All. New Tech Import Pvt. Ltd. Vs. Union of India & Ors.
1207
a corresponding imperative duty existing
in law. It is designed to promote justice
(ex debito justiceiae). The grant or refusal
of the writ is at the discretion of the court.
The writ cannot be granted unless it is
established that there is an existing legal
right of the applicant, or an existing duty
of the Respondent. Thus, the writ does
not lie to create or to establish a legal
right, but to enforce one that is already
established. While dealing with a writ
petition,
the
court
must
exercise
discretion, taking into consideration a
wide variety of circumstances, inter-alia,
the facts of the case, the exigency that
warrants such exercise of discretion, the
consequences of grant or refusal of the
writ, and the nature and extent of injury
that is likely to ensue by such grant or
refusal. " (Emphasis added)

24. In State of U.P. and others vs.
Bridge & Roof Co. (supra) Court said:

"Firstly, the contract between
the parties is a contract in the realm of
private law. It is not a statutory contract.
It is governed by the provisions of the
Contract Act or, may be, also by certain
provisions of the Sale of Goods Act. Any
dispute relating to interpretation of the
terms and conditions of such a Contract
cannot be agitated, and could not have
been agitated, in a writ petition. That is a
matter either for arbitration as provided
by the contract or for Civil Court, as the
case may be."
(Emphasis added)

25. In Zonal Manager, Central
Bank of India vs. Devi Ispat Ltd. and
Ors., 2010(11) SCC 186 Court said:

"It is settled law that the
disputes relating to interpretation of terms
and conditions of a contract could not be
examined/challenged or agitated in a
petition filed under Article 226 of the
Constitution.
It
is
a
matter
for
adjudication by a civil court or in
arbitration, if provided for in the contract
or before the DRT or under the
Securitization Act. "

26. Counsel for petitioner further
contended that fault entirely lay upon
respondents
without
giving
any
opportunity of hearing and notice to
parties neither any condition of contract
could
have
been
changed
nor
contract/offer could have been cancelled
and it is in violation of principles of
natural justice.

27. We find that Railway issued
contract on certain conditions wherein it
also offers some changes to which
petitioner did not agree. Firstly, in these
circumstances cannot be said that any
concluded
contract
has
come
into
existence and in any case in the matter of
termination of contract, principles of
natural justice, are not applicable.

28. It has been held time and again
that principles of natural justice are not
applicable when a contract in private law
is terminated. Cancellation of contract in
private law is not a quasi judicial act
hence observance of principles of natural
justice are not required and atleast
cancellation of contract by either party
cannot be challenged on the ground that it
is in violation of principles of natural
justice.

29. In State of Gujarat and Ors.
vs. Meghji Pethraj Shah Charitable
Trust and Ors., 1994(3) SCC 552, it has
been held:
1208 INDIAN LAW REPORTS ALLAHABAD SERIES

"We are unable to see any
substance in the argument that the
termination
of
arrangement
without
observing the principle of natural justice
(audi alteram partem) is void. The
termination is not a quasi-judicial act by
any stretch of imagination; hence it was
not necessary to observe the principles of
natural justice. It is not also an executive
or administrative act to attract the duty to
act fairly. It was - as has been repeatedly
urged by Sri Ramaswamy - a matter
governed
by
a
contract/agreement
between the parties. If the matter is
governed by a contract, the writ petition
is not maintainable since it is a public
law remedy and is not available in
private law field, e.g., where the matter is
governed by a non-statutory contract."
(emphasis added)

30. Following aforesaid decision in
Pimpri
Chinchwad
Municipal
Corporation and Ors. vs. Gayatri
Construction
Company
and
Anr.,
2008(8) SCC 172 Court has held that in
the matter of non-statutory contract, High
Court should not have entertained writ
petition
under Article
226
of
the
Constitution.

31. Counsel for petitioner has
vehemently contended that a concluded
contract has come into existence and
thereafter it was not permissible for
respondents to change or alter the same.
This fact has been denied by respondents
on the ground that E-mail communication
did not result in a concluded contract,
particularly since petitioner was informed
immediately thereafter that unless an Ink
Signed communication is given, contract
is assumed in the realm of consideration,
petitioner
should
not
act
upon
communication made through on-line
communication. What was the condition
subject whereof the contract could have
been said to be a concluded contract, is
disputed fact requiring investigation into
facts relating to terms and conditions and
communication between parties with
respect to contract in question.

32. We assume that a concluded
contract came into existence after On-line
communication by respondents, still no
appropriate provision has been shown to
us whether a party can cancel or modify
such a contract. At the best such an
attempt on the part of a party modifying
or terminating a concluded contract may
come
within
mischief
or
illegal
termination of contract or breach of
contract, but under the provision of "The
Contract Act, 1872" (hereinafter referred
to as "Act, 1872") in such a case, affected
party is entitled for damages, for which
remedy in common law is available. The
enforcement of contract have been
allowed only in cases where such a
contract prevails into realm of statutory
contract and not otherwise. Respondents
have
pleaded
that
conditions
were
amended for the reason that there was a
huge gap in the prices offered by
petitioner
and
same
offered
by
indigenized namely, M/s BFL, hence for
protecting huge amount of public revenue
and also with an intention that policy of
Government i.e. "Make In India" to the
extent it is practicable to be followed,
action in question has been taken by
respondents. Above averments, ex facie,
cannot be said to be wholly impermissible
in law and in our view, has some merit,
but for the purpose of present case, we are
not expressing any definite opinion on the
matter, since in our view, enforcement of
contract by way of writ petition, is not an
appropriate remedy but petitioner must
3 All. Katwaru Vs. Addl. Commissioner Administration & Ors.
1209
avail remedy in common law by filing a
suit with appropriate relief.

33. In view of above, we are clearly
of the view that it is not a fit case where
this Court must exercise its public law
remedy
available
under
Constitution
which is extraordinary, discriminatory
remedy and instead petitioner must be
relegated to avail its alternative remedy
by invoking arbitration clause in the
agreement or avail common law remedy
in Civil Court.

34. Writ petition is, accordingly,
dismissed.
----------

(2019)11ILR A1209

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.08.2019

BEFORE
THE HON'BLE YASHWANT VARMA, J.

Writ C No. 9013 of 2003

Katwaru ...Petitioner
Versus
Addl. Commissioner Administration &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Shashi Prakash Mishra

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar, Sri D.D. Chauhan,
Sri M.S. Haq, Sri Pradeep Narain Pandey,
Sri Ramanand Pandey

A. U.P. Zamindari Abolition & Land
Reforms Act, 1950 - Section 117, 122-B
(4-F) - land of Gaon Sabha - possession
of agricultural labourer of SC or ST class
since 30.06.1985 i.e. before the cut-off
date
u/s
122B(4F)
-
Rights
are
bhumidhari with non-transferable rights
- No need to get declaration from the
competent
authority
-
private
respondents do not claim benefit of sub
Section (4F).

Held: - Viewed in light of the above, it is
manifest that the Additional Commissioner has
clearly erred in holding that the petitioners
were liable to obtain a declaration from a
competent court in respect of their status or
their eligibility to the benefits introduced by
sub-section (4F). The findings as returned by
the Additional Commissioner on this aspect
clearly
run
contrary
to
the
principles
enunciated by the Supreme Court in Manorey.
(Para 13)

Writ Petition allowed (E-9)
List of cases cited : -
1. Barendra & anr. Vs St. Of U.P. & 3 ors. -
W.P. No.-29430/2018 (distinguished)
2. Manorey@ Manohar Vs Board of Revenue
(U.P.) & ors., (2003) 5 SCC 521

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard learned counsel for the
petitioner, the learned Standing Counsel
for the State respondents as well as Sri
Ramanand Pandey, who has appeared for
the respondents 2 to 5. Although the
Gram Panchayat is represented, none has
appeared on its behalf even in the revised
call.

2. This petition impugns the orders
dated 7 April 1999 and 23 December
2002. In terms of the order of 7 April
1999, the Additional Commissioner has
set aside the orders dated 4 December
1992 and 22 December 1995 in terms of
which the petitioner was extended the
benefits comprised in Section 122-B(4-F)
of the U.P. Zamindari Abolition and
Land Reforms Act, 1950 [hereinafter to
be referred as "the Act"]. The petitioner