# Ram Dhyan Singh v. The State of U.P. and others

- **Citation:** (2004) 2 ILRA 434
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-23
- **Case number:** Special Appeal No. 323 of 2004
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dhyan-singh-v-the-state-of-u-p-and-others-40395
- **Pages:** 6

## Headnote

Constitution of India, Articles 226- Writ
Petition-
Maintainability-Contractual
matters- Writ will lie where the parties
to contract is State or an instrumentality
of State- To hold that only a suit will lie
in cases of non statutory contracts may
make relief nugatory-matter referred to
be larger Bench.

In other words, in the case of a nonstatutory contract, a writ will only lie on
constitutional grounds, but in the case of
a statutory contract, a writ will lie on
both grounds viz. constitutional as well
as statutory grounds. This is really the
essential distinction between the cases
of
a
statutory
and
non-statutory
contract. Hence it cannot be said that no
writ will lie in the case of a non-statutory
contract.

Para 16
Case law discussed:
2003 UPLBEC 496
1994 ACJ 180
1993 (21) ALR 121
1992 (2) EFR 655
W.P. 48296 of 2003, decided on 16.3.2004
2004 ALJ 951
AIR 1978 SC 597
AIR 1979 SC 1628
(1997) 7 SCC 89 (Pr. 12)
(2004) 3 SCC 214 (pr. 17)
AIR 1996 SC 11 (Pr. 85, 86)
(1993) 1 SCC 445
(1999) 6 SCC 464
(2000) 5 SCC 287
AIR 1993 SC 929
JT 2003 (10) SC 300

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
434
hence the property did not vest in the state
of U.P. or in respondent no. 4. He has
relied on Khasra entries and irrigation
slips which have been annexed with the
rejoinder affidavit. He has also submitted
that the Master Plan was not approved by
the State Government.

11. In Balmokand vs. State of
Punjab JT 1996 (3) SC 60 it was held by
the Supreme Court that the normal mode
of taking possession and giving delivery
to the beneficiaries in the accepted mode
of
taking
possession
of
the
land.
Subsequent thereto the retention of
possession would tantamount only to
illegal or unlawful possession. Hence
merely because the appellant subsequent
to 7.8.2001 retained actual possession of
the acquired land the acquisition cannot
be said to be bad in law.

12. An Awadh Bihari Yadav vs.
State of Bihar, JT 1995 (6) SC 248 (vice
paragraph 11) following the earlier
decision in Balwant Narayan Bhagde vs.
M.D. Bhagwat and others, AIR 1975 SC
1767 it was held that once possession of
the land was taken by the Government
even if thereafter the owner of the land
entered upon the land and resumed
possession such act does not have the
effect of obliterating the consequences of
vesting.

13. In the present case it has been
clearly stated by the respondents in
paragraph 4,9,11,14,16 and 18 of the
counter affidavit that the possession was
taken over by the respondents on
7.8.2001. The possession memo which is
Annexure CA 2 to the counter affidavit
clearly supports the contention of the
respondents. It is stated therein that the
possession has been taken over by the
respondent on 7.8.2001 and handed over
to the Vice Chairman of Saharanpur
Development Authority. In the counter
affidavit filed by the respondents in
relation to the application under Order 41
Rule 22 CPC the respondent no. 4 has
annexed copies of the Khasra showing
possession of the said respondent. In view
of the aforesaid Supreme Court decisions
we cannot accept the contention of the
petitioner that possession was not taken
by the respondents. Even if subsequently
possession was retaken by the petitioner
that will be immaterial.

14. In fact due to the pendency of
this petition the entire scheme for setting
up a Transport Nagar has been delayed
and this is not in the public interest.

15.

The
petitioner
will
get
compensation for the land which has been
acquired (including constructions or trees
thereon) as per the provision of the Land
Acquisition Act.

The petition is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.4.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Special Appeal No. 323 of 2004

Ram Dhyan Singh

...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Appellant:
Sri Ramendra Asthana

Counsel for the Respondents:
S.C.
http://www.allahabadhighcourt.nic.in
2 All] Ram Dhyan Singh V. The State of U.P. and others
435
Constitution of India, Articles 226- Writ
Petition-
Maintainability-Contractual
matters- Writ will lie where the parties
to contract is State or an instrumentality
of State- To hold that only a suit will lie
in cases of non statutory contracts may
make relief nugatory-matter referred to
be larger Bench.

In other words, in the case of a nonstatutory contract, a writ will only lie on
constitutional grounds, but in the case of
a statutory contract, a writ will lie on
both grounds viz. constitutional as well
as statutory grounds. This is really the
essential distinction between the cases
of
a
statutory
and
non-statutory
contract. Hence it cannot be said that no
writ will lie in the case of a non-statutory
contract.

Para 16
Case law discussed:
2003 UPLBEC 496
1994 ACJ 180
1993 (21) ALR 121
1992 (2) EFR 655
W.P. 48296 of 2003, decided on 16.3.2004
2004 ALJ 951
AIR 1978 SC 597
AIR 1979 SC 1628
(1997) 7 SCC 89 (Pr. 12)
(2004) 3 SCC 214 (pr. 17)
AIR 1996 SC 11 (Pr. 85, 86)
(1993) 1 SCC 445
(1999) 6 SCC 464
(2000) 5 SCC 287
AIR 1993 SC 929
JT 2003 (10) SC 300

(Delivered by Hon'ble M. Katju, J.)

1. This Special Appeal has been
filed against the impugned judgement of
the learned Single Judge dated 10.3.2004.

2. Heard Sri Ramendra Asthana
learned counsel for the appellant and the
learned
Standing
Counsel
for
the
respondents.

3. Sri Ramendra Asthana learned
counsel has informed that the respondent
no. 4 has been served through registered
post.

4. There is an office report that the
Special Appeal is not maintainable in
view of the decisions of this Court in
Vajara Yojna Seed Farm, Kalyanpur M/s
and others Vs. Presiding Officer, Labour
Court-II, UP, Kanpur and another-2003
UPLBEC 496 and Sita Ram Lal Vs.
District Inspector of Schools, Azamgarh
and others- 1994 ACJ 180. These
decisions have referred to Chapter VII
Rule 5 of the Allahabad High Court Rules
which states that an appeal lies against the
judgment of a learned Single Judge under
Article 226 of the Constitution except
when the writ petition was filed against
such judgment or order or award (a) of a
tribunal court or statutory arbitrator- (b)
of the Government or any officer or
authority, made or purported to be made
in the exercise or purported exercise of
appellate or revisional jurisdiction 'under
any such Act' mentioned in Chapter VIII
Rule 5. In this case, the writ petition filed
before the learned Single Judge was
against the order of the Commissioner
who decided the appeal provided for
under the Government Order dated
3.7.1990. Thus the impugned judgment
before the learned single Judge, was not
against an order of a Tribunal or Court or
Statutory Arbitrator. It was also not
against an order passed in exercise of
appellate
or
revisional
jurisdiction
'conferred by some Act'. In fact, the
appellate jurisdiction was conferred by a
Government order and not by an act.
Hence in our opinion this Special Appeal
is maintainable.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
436

5. Coming to the merits of the case,
we have carefully perused the impugned
judgment of the learned Single Judge
dated 10.3.2004. The learned Single
Judge was of the view that the writ
petition was not maintainable as it was in
respect of a contractual matter. The
learned single Judge has referred to
several decisions of this Court and the
Supreme Court e.g. Shiv Mohan Lal Vs.
The State of U.P. and others 1993 (21)
ALR 121 and U.P. Sasta Galla Vikreta
Parishad Vs. State of U.P. and others
1992 (2) EFR 655. There is also a
subsequent decision of a division bench of
this Court in Har Charan Sharma Vs.
Nagar Panchyat and others, writ petition
no. 48296 of 2003 decided on 16.3.2004
which supports the view taken by the
learned Single Judge.

6. In our opinion, there is a
distinction between a contract between
two private persons and a contract where
one of the parties is the State or an
instrumentality of the State. In case of a
contract where both the parties are private
individuals no writ will lie in relation to
such a contract (though a suit or other
remedy may lie). However, where one of
the parties to the contract is the State or
an Instrumentality of the State, the
position becomes totally different. In such
a case, Article 14 and other provisions of
the
Constitution
will
clearly
apply
because
the
Government
can
not
discriminate or act arbitrarily in respect of
grant
of
contracts.
Nowadays
the
Government or instrumentality of the
State
grants
contracts
often
worth
hundreds of crores of rupees, and
therefore, it is essential that there should
be totally transparency in such contracts,
otherwise the public confidence will be
eroded. For example, it has often been
held by the Court that such contracts are
ordinarily to be awarded after advertising
the same in well known newspapers
having wide circulation and thereafter a
public auction or public tender should be
held vide Zauddin v. Commissioner, 2003
A.L.J., V.K. Jaiswal vs. State of U.P.;
2004
ALJ
951
etc.
The
position
individuals and here there is no need to
advertise the contract or to hold public
auction or tender. If we hold that even
contracts where one of the parties is the
State or the instrumentality of the State
can be granted at the sweet will of the
authorities to whomever they like, in
whatever manner, and at whatever rate it
will open the flood gates to corruption
and
gross
financial
irregularities.
Moreover, it will also violate Article 14
and / or other provisions of the
Constitution. It is well settled that the
State Government cannot act arbitrarily
vide Maneka Gandhi vs. Union of India
and others AIR 1978 SC 597, Ramana
Dayaram Shetty vs. International Airport
Authority of India and others, AIR 1979
SC 1628 etc. Hence even in the matter of
grant of contract the Government cannot
act arbitrarily and its action can be
challenged in writ jurisdiction if it does
so.

7. In Style (Dress Land) Vs. Union
Territory, Chandigarh, and another (1997)
7 SCC 89, the Supreme Court has
observed (vide para 12):

"Action of renewability should be
gauged not on the nature of function but
public nature of the body exercising that
function and such action shall be open to
judicial review even if it pertains to the
contractual field. The State action which
is not informed by reason cannot be
protected as it would be easy for the
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2 All] Ram Dhyan Singh V. The State of U.P. and others
437
citizens to question such an action as
being arbitrary. '

8. In Jamshed Hormusji Wadia Vs.
Board of Trustees, Port of Mumbai (2004)
3 SCC 214 vide para 17 the Supreme
Court has observed:

"It is not as if the requirements of
Article 14 and contractual obligations are
alien concepts which cannot coexist. Our
Constitution does not envisage or permit
unfairness or unreasonableness in State
action in any sphere of activities contrary
to the professed ideals in the Preamble.
Exclusion of Article 14 in contractual
matters
is
not
permissible
in
our
constitutional scheme."

9. In Tata Cellular Vs. Union of
India and others AIR 1996 SC 11 (vide
paras 85 and 86) it has been observed:

"It cannot be denied that the
principles of judicial review would apply
to the exercise of contractual powers by
Government bodies in order to prevent
arbitrariness or favouritism. However, it
must be clearly stated that there are
inherent limitations in exercise of that
power of judicial review. Government is
the guardian of the finance of the State. It
is expected to protect the financial
interest of the State. The right to refuse
the lowest or any other tender is always
available to the Government. But, the
principles laid down in Article 12 of the
Constitution have to be kept in view while
accepted or refusing a tender. There can
be no question of infringement of Article
14 if the Government tries to get the best
person or best quotation. The right to
choose cannot be considered to be an
arbitrary power. Of course, if the said
power is exercised for any collateral
purpose the exercise of that power will be
struck down.

10. Judicial quest in administrative
matters has been to find the right balance
between the administrative discretion to
decide matters whether contractual or
political in nature or issues of social
policy; thus, they are not essentially
justiciable and the need to remedy any
unfairness. Such an unfairness is set right
by judicial review."

11. In Sterling Computers Ltd. Vs.
M/s M & N. Publications Ltd., and others,
1993 (1) SC 445 it has been held that
"State action in commercial/contractual
transaction with private parties must be in
consonance with Article 14 of the
Constitution." In para 14 of the said
judgment the Supreme Court observed:

"That
action
or
the
procedure
adopted by the authorities which can be
held to be State within the meaning of
Article 12 of the Constitution, while
awarding
contracts
in
respect
of
properties belonging to the State can be
judged and tested in the light of Article 14
of the Constitution, is settled by the
judgments of this Court in the cases of
Ramana
Dayarama
Shetty
vs.
International Airport Authority India,
Kasturi Lal Lakshim Reddy Vs. State of J
& K, Fertilizer Corpn. Kamagar Union
(Regd.) Sindri Vs. Union of India, Ram
and Shyam Co. Vs. State of Haryana,
Hazi T.M. Hassan Rawther V. Kerla
Financial Corpn., Mahabir Auto Stores
Vs. Indian Oil Corpn. and Shrilekha
Vidyarthi Vs. State of U.P. It has been
said by this Court in Kasturi Lal: (SCC p.
13, para 14)
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
438

"It must follow as a necessary
corollary from this proposition that the
Government cannot act in a manner which
would benefit a private party at the cost of
the State, such an action would be both
unreasonable and contrary to public
interest.
The
Government,
therefore,
cannot for example, give a contract or sell
or
lease
out
its
property
for
a
consideration less than the highest that
can be obtained for it, unless of course
there are other considerations which
render it reasonable and in public interest
to do so."

12. In M.I. Builders Pvt. Ltd. Vs.
Radhey Shaym Sahu and others (1999)
6SCC 464, the Supreme Court has held
that 'even in contractual matters the
Municipal
Corporation
cannot
act
unreasonably or arbitrarily and there can
be judicial review of its decision based on
Wednesbury unreasonableness principles'
A similar view was taken in Monarch
Infrustructure
Pvt.
Ltd.,
Vs.
Commissioner
Ulhasnagar
Municipal
Corporation and others (2000) 5 SCC
287.

13. In Y. Srinivasa Rao Vs. J.
Veeraiah AIR 1993 SC 929 it was held
that a writ will be lie in relation to fair
price shops. In ABL International Ltd. Vs.
Export Credit Guarantee Corporation of
India Ltd., JT 2003 (10) SC 300 the
Supreme Court observed (vide para 10):

"On a given set of facts if a State acts
in an arbitrary manner even in a matter of
contract, an aggrieved party can approach
the Court by way of writ under Article
226 of the Constitution. 'In this decision
the Supreme Court considered several
earlier decisions and held that Article 14
applies to govt. contracts, and a writ will
lie if it is violated."

14. Thus, there are a plethora of
decisions holding that even in contractual
matters a writ will lie where one of the
parties to the contract is the State or is an
instrumentality of the State. In our
opinion, to hold otherwise would mean
that the State can grant contracts to only
members of one particular religion, race,
caste, sex or place of birth, thus violating
the mandate of Article 15 (1) of the
Constitution. To hold that only a suit will
lie in cases of non-statutory contracts may
well make the relief nugatory as it is well
known that in our country suits take 10 or
even 20 years to decide and by that time
the period of the contract may well expire.

15. In Shiv Mohan Lal Vs. The State
of U.P. and others (supra), and U.P. Sasta
Galla Vikreta Parishad Vs. State of U.P.
and others (supra), however, Full Bench
decisions of this Court have taken the
view that where the contract which has
been entered into between the State and
the person aggrieved is non-statutory, no
writ under Article 226 will lie. In our
opinion the aforesaid decisions and the
decision of the Division Bench in Har
Charan Sharma Vs. State of U.P. and
others (supra) have not been correctly
decided as they are inconsistent with the
decisions of the Supreme Court referred
to above. Hence they require to be
reconsidered by a larger bench. In our
opinion the distinction between cases of
statutory
contract
and
non-statutory
contract is really this:

16. In the case of a non-statutory
contract a writ will lie if there is violation
of Article 14 or some other provision of
the Constitution. However, in the case of
http://www.allahabadhighcourt.nic.in
2 All] Dr. Ravindra Kumar Goel and others V. State of U.P. and another
439
a statutory contract, a writ will lie not
only
on
the
above
mentioned
(constitutional) ground but will also lie on
the ground that there is violation of the
statutory provisions relating to that
contract. In other words, in the case of a
non-statutory contract, a writ will only lie
on constitutional grounds, but in the case
of a statutory contract, a writ will lie on
both grounds viz. constitutional as well as
statutory grounds. This is really the
essential distinction between the cases of
a statutory and non-statutory contract.
Hence it cannot be said that no writ will
lie in the case of a non-statutory contract.

17. It may be noticed that the
decisions of Supreme Court referred to
above in which it was held that a writ will
lie in contractual matters do not appear to
relate to a statutory contract. They appear
to be related to non-statutory contracts, or
at least no distinction was made in those
decisions between statutory and nonstatutory contracts but yet it was held that
a writ will lie. We are of the considered
opinion, therefore, that the decisions of
the Full Bench of this Court in Shiv
Mohan Lal Vs. The State of U.P. and
others (supra) and U.P. Sasta Galla
Vikreta Parishad Vs. State of U.P. and
others (supra) and the decision in Har
Charan Sharma Vs. Nagar Panchayat
(supra) require reconsideration by a larger
Bench of this Court as we are of the
opinion
that
they
were
incorrectly
decided. Let the papers of this case be laid
before Hon'ble the Chief Justice for
constitution of a larger Bench of this
Court for the deciding the following
questions:

"1. Whether a writ will lie even in
the matter of non-statutory contract?

2. Whether a writ will lie in cases
relating to fair price shops e.g. grant,
cancellation, suspension, etc. of fair price
shops."
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.4.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Special Appeal No. 320 of 2004

Dr. Ravindra Kumar Goel and others

 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Appellants:
Sri Chandan Sharma
Sri Suneet Kumar

Counsel for the Respondents:
C.S.C.

(A) Constitution of India, Article 21Right to life- Includes right to get
medical treatment- Right to practice
medicine-Mere registration with Medical
Council of India or with Board of Indian
Medicine, UP or Homoeopathic Medical
Council etc. not sufficient to allow to
practice- Medical degree from a genuine
and recognized Medical College also
necessary- Medical Councils directed to
be strict to scrutinize genuine or take
medical
degree
before
registration-
quacks.

Under the law only a registered medical
practitioner who has a degree from a
recognized and genuine medical college
alone can practice medicine. Even if a
person has got himself registered with
the Medical Council of India or with the
Board
of
Indian
Medicine,
UP
or
Homeopathic Medical Council or some
other such body, he cannot be allowed to