Shiv Mohan Lal v. State of U. P. — 1992 DIGILAW 1330 (ALL)

JUDGMENT R. A. Sharma, J. 1. A Division Bench of this Court has referred the following questions to the Full Bench for its decision: "1-Whether the agreements under which the petitioners have been authorised -to work as agents for the sale of scheduled commodities are statutory agreements in view of the fact that the agreements are executed in view of the statutory order notified by the State Government under Sec 3/7 of the Essential Commodities Act, i.e. U. P. Scheduled Commodities Distribution Order, 1990 ? 2-Whether the decision given in the case of Gopal Das Sahu v. State of U. P. 1991 ALJ 498, holding that even after the coming into force of the statutory Order, 1990, the termination or suspension of the agreement will not give a cause of action to the petitioner to challenge the said Order by means of a petition under Article 226 of the Constitution of India, as neither Article 14 of the Constitution nor the principles of natural Justice are attracted, requires reconsideration in view of the decision given by the Supreme Court in the case of Kumari Shrilekha Vidyarthi v. State of U. P. 1990 (2) UP LB EC 1174, and the Division Bench of this court in the case of M/s. Shyam Das Company v. State of U. P., AIR 1991 Alld. 129 ?" 2. This Full Bench has accordingly been constituted for deciding the aforesaid questions. In exercise of powers under Section 3 of the Essential Commodities Act, 1955 (here-in-after referred to as the Act) read with Notifications of the Government of India, the Government of U. P. has promulgated an order known as U. P. Scheduled Commodities Distribution Order, 1990 (here-in- after referred to as the 'Order). Clause 2 (c) of the Order defines 'agent' "as a person authorised to run a fair price shop". According to sub-clause (e) of Clause 2, 'fair price shop' "means a shop set up under these orders of the State Government for distribution of scheduled commodities." 'Scheduled Commodity' has been defined by sub-clause (m) as follows J "Scheduled Commodity" means a commodity specified in the scheduled appended to this order, products thereof and includes such other commodities which the State Government directs to be sold through a fair price shop". The commodities, which have been specified in the schedule are wheat, rice pulses, sugar, edible oil, kerosene oil, soft coak and controlled cloth. The commodities, which have been specified in the schedule are wheat, rice pulses, sugar, edible oil, kerosene oil, soft coak and controlled cloth. Clauses 3 and 4, which provides for setting up and running of fair price shop are reproduced below :- "3. With a view to effecting fair distribution of Scheduled Commodities the State Government may issue directions to set up such number of fair price shop in an area as it deems fit. 4. (1) A fair price shop shall be run through such person and in such manner as the Collector subject to the direction of the State Government, may decide. (2) A person appointed to run a fair price shop under sub-clause (1) shall operate it as the agent of the State Government." 3. According to Clause 4 of the Order a fair price shop is required to be run through such person and in such manner as the Collector subject to the direction of the State Government, may decide and the person, who is authorised to run the fair price shop, shall operate it as the agent of the State Government. By a letter dated 3-7-1990 written by its Secretary, the Government has issued instructions to all the District Magistrates of the State laying down procedure for Selection of agents for rural areas and by clause 6 thereof the District Magistrate have been directed to get contracts executed in the prescribed proforma by the agents for running fair price shops. By Clause 11 of the said letter, provision has been made for appeal against the order of appointment, suspension, cancellation or non renewal of the contracts. In Clause 12, it has mentioned that the letter has been issued under clause 4 of the order. The copies of this letter have been sent for information and necessary action in accordance therewith to all the Additional District Magistrates, Civil Supply Officers, Commissioner, Food and Civil Supply, Divisional Commissioners and Regional Food Controllers. It has been stated by the learned counsel that similar instructions have been issued by the Government for establishment of fairprice shops in urban area. 4. Petitioners are the authorised agents of the Government of U. P. for running the fair price shops for sale of scheduled commodities and in connection therewith they have entered into contracts with the District Magistrates. 4. Petitioners are the authorised agents of the Government of U. P. for running the fair price shops for sale of scheduled commodities and in connection therewith they have entered into contracts with the District Magistrates. Their contracts having been cancelled, suspended or supply of scheduled commodities having been (stopped by the State, they have filed these writ petitions for appropriate relief. A contract entered into a Govt. with another person in exercise of power conferred by Statute or Rules framed thereunder is a statutory contract. Such a contract is different from the ordinary contract, which is made by the Govt. or authority in exercise of their executive/administrative power. 5. The first question, which has been referred is as to whether the contracts, which the petitioners have made with the District Magistrates in the proforma prescribed by the Government's letter dated 3-7-1990, are statutory contracts. The Order neither lays down the procedure for selecting an agent nor does it provide for execution of the contract and the terms thereof. Perusal of Clause 4 of the Order makes it clear that the agent is to run the fair price shop in such manner as the Collector subject to the direction of the State Government, may decide. How the agent will be selected and what will be the criteria for selecting him has not been laid down by the Order. The Order also does not provide for the manner in which the fair price shop shall be run. All this has been left to the Collector to decide subject to the direction of the State Government. As mentioned hereinbefore, the Government has issued instructions vide letter dated 3-7-1990 laying down the procedure of selection of an agent and the manner for running the fair price shop and in (that connection requirement for execution of contract between the Collector and the authorised agent has also been laid down. 6. Learned counsel for the petitioners have argued that since the letter dated 2-7-1990 has been issue)] in exercise of power conferred by Clause 4 of the Order, it is liable to be treated as "law" and the contract executed in pursuance thereof is a statutory contract. It is not possible to agree with the learned counsel. 6. Learned counsel for the petitioners have argued that since the letter dated 2-7-1990 has been issue)] in exercise of power conferred by Clause 4 of the Order, it is liable to be treated as "law" and the contract executed in pursuance thereof is a statutory contract. It is not possible to agree with the learned counsel. Merely because directions have been issued under statutory power, they cannot be treated as "law", In this connection reference may be made to the decisions of the Supreme Court in the case of M/s. Raman and Raman Ltd. v. State of Madras, AIR 1959 SC 694 , wherein it was laid down as follows: "Nor is there any basis for the argument that as the directions are issued under a statutory power, they are "laws". The source of the powers does not affect the character of the things done in exercise of that power. Whether it is a law or an administrative direction depends upon the character or nature of the orders or the directions authorised to be issued in exercise of the power conferred." The letter dated 3-7-1990 is in the form of a letter from the Secretary, Government of U. P, addressed to all the District Magistrates of the State, who have been required to take necessary action in pursuance thereof. It contains the Instructions and directions issued by the Government regarding the selection of the authorised agent and the manner for running the fair price shop. This letter is addressed to the Collectors and not to any other person Statutory Orders/laws are normally not issued in the form of letters addressed to the officials of the State only. Terms of Clause 4 and the manner of issuing the directions also lead to the same conclusion that the letter in question is not "law". As the Collector, under Clause 4, exercises the power of selecting a person and laying down the manner for tunning the fair price shop subject to the direction of the State Government, the object is to bring the Collectors within the administrative control of the Government. Further these directions are not required to be published and they can even take the form of secret communication to the officials. Such directions cannot be treated to bo "law", because law has to be published before any action can be taken under it. Further these directions are not required to be published and they can even take the form of secret communication to the officials. Such directions cannot be treated to bo "law", because law has to be published before any action can be taken under it. That apart, the Act gives legislative power to the Government under section 3. The Government, if it wanted that the letter in question be treated as "law", it could have exercised its legislative power by amending the order or could have issued a fresh order under section 3 by incorporating therein all that, which is contained in the letter. But it has not been done and instead only a letter has been sent to the Collectors. It is also not disputed that the letter is not part of the Order and it can be changed by the Government from tiros to time without any information to any one. Such a letter cannot be treated to be "law" and the contracts executed in pursuance thereof by the agents with the Collector cannot be said to be statutory contracts. We accordingly hold that the contracts made by the petitioners with the Collectors are not statutory contracts. 7. As regards the second question, it may be stated that Honourable Supreme Court has consistently taken the view that where the contract, which has been entered into between the State and the person aggrieved, is non-statutory, the rights of the parties thereto are governed by the terms of the contract and not by constitutional provisions and no writ or order can be issued under Article 226 of the Constitution of India by this Court for enforcing such a contract. In this connection reference may be made to the case of M/s. Radhakrishna Agarwal v. State of Bihar, AIR 1977 SC 1496 , paragraph 12 of which being relevant is quoted below: "The Patna High Court had, very rightly, divided the types of cases in which breaches of alleged obligation by the State or its agents can be set up into three types. These were stated as follows:- "(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where an assurance or promise made by the State he has acted to his prejudice end predicament, but the agreement is short of a contract within the meaning of Art 299 of the Constitution; (ii) Where a 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". 8. Regarding the third category where the contract made by a person with the State is non-statutory, it was laid down that no writ petition under Article 226 of the Constitution will be maintainable to remedy the breach of such a contract. It was further held in that case that after the State has entered into a contract, the relations are no longer governed by the constitutional provisions but by the terms and conditions of the contract. In this connection paragraph 10 of the judgment is reproduced below: "It is thus clear that the Erusian Equipment and Chemicals Ltd's case AIR 1975 SC 266 (supra) involved discrimination at the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all At this stage,,not doubt, the State Act purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se No question arises of violation of Art. 14 or of any other constitutional provision when the State or its agents, purporting to act within this field perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract." It was also laid down therein that the limitations imposed by the Rules of Natural Justice cannot operate upon powers which arc governed by terms of an agreement." The decision in the case of M/s. Radhakrishna Agarwal (supra) has been approved and followed by the Supreme Court in its subsequent decision in the case of Premji Bhai Parmar v. Delhi Development Authority, AIR 1980 SC 738 , relevant extracts from which is reproduced below: "But after the State or Us agents have entered into the field of ordinary contract, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se. No question arises of violation of Art. 14 or of any other constitutional provision when the State or its agents purporting to act within this field, perform any act. In this sphere, they can only claim rights conferred upon them and are bound by the terms of the contract only, unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract" See Radhkrisna Agarwal v State of Bihar, (1977) 3 SCR 249 at p. 255. Same position was reiterated by the Constitution Bench of the Supreme Court in the case of Life Insurance Corporation of India v. Excorts Ltd., AIR 1986 SC 1370 , relevant extract from which has been reproduced below :- "While we do not for a moment doubt that every action of the State or an instrumentality of the State must be informed by reason and that, in appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Art. 226 or Art. 14 of the Constitution we do not construe Art. 14 as a charter for judicial review of State actions and to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. For example, if the action of the State is political or sovereign in character, the court will keep away from it. For example, if the action of the State is political or sovereign in character, the court will keep away from it. The court will not debate academic matters or concern itself with the intricacies or trade and commerce. If the action of the State is related to contractual obligation or obligations arising out of the court, the Court may not ordinarily examine it unless the action has some public law, character attached to it. Broadly speaking, the Court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the; action, the public law or private law character of the action and host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a share holder, and dons the robes of a share holder with all the rights available to such a share holder. There is no reason why the State as a share holder should be; expected to State its reasons when it seeks to change the management, by a resolution of the Company, like any other share holder." 9. In this case the argument that the State when it purchases shares of a company cannot act like an ordinary share holder and its action must be supported by reasons, was rejected by holding that when the Government purchases a share it dons the robes of a share holder with all the rights available to such a share holder and it should not be expected to State its reason when it seeks to change the management. Again in the case of Bareilly Development Authority v. Ajay PaI Singh, AIR 1989 SC 1076 , the Supreme Court reiterated the same principles by holding as follows: "In the case before us, the contract between the respondents and the B.D.A. does not contain any statutory terms and/or conditions When the factual position is so, the High Court, placing reliance on the decisions in Ramana Dayaram Shetty's case AIR 1979 SC 1628 , has erroneously held : "It has not been disputed that the contesting opposite party is included within the term 'other authority' mentioned under Article 12 of the Constitution Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness." This finding in our view; is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty's case there was no concluded contract as in this case Even conceding that the BDA has the trappings of a State or would be comprehended in 'other authority' for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid the 'authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i e. BDA in this case) in the said contractual field. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple : Radhakrishna Agarwal v. State of Bihar (1977) 3 SCR 249 , AIR. 1977 SC 1496). 1977 SC 1496). Premji Bhai Parmar v. Delhi Development Authority (1980) 2 SCR 70 (AIR 198C SC 738) and D.F.O. v. Biswanath Tea Company Ltd. (1981) 3 SCR 662 ( AIR 1981 SC 1368 ). In view of the authoritative judicial pronouncements of the Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court; in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for." 10. It thus stands established by the Supreme Court that in the matter of non-statutory contracts rights and obligations of the parties arising thereunder are governed by the terms and conditions of the contract and constitutional provisions like Art. 14 cannot be extended and in such cases the question of violation of Art. 14 or other provisions of the Constitution by the State or its officials does not arise. Any action taken or any order passed under such a contract by the State or its official howsoever wrong or arbitrary it may be cannot be challenged under Article 226 of the Constitution. IT Is not open to this court to enforce such a contract or to remedy the breach thereof by the State in exercise of ITs extra ordinary jurisdiction under Art. 226. With regard to the contract made by the authorised agent with the Collector for the sale of scheduled commodities through fair price shops there is a line of decisions of the Courts holding that these contracts are non-statutory and the rights of the parties thereto are governed by the terms and conditions of the contracts and not by constitutional provisions such as Art. 14, and no writ can be issued under Article 226 of the Constitution for compelling the authorities to remedy the breach of such a contract. In S. C. Shekharan v. T. N. Government, AIR 1974 SC 1543 the Supreme Court held that a person who has been appointed as distributor by the Government under a contract for sale of levy sugar under Levy sugar (supply Control) Order, 1972 has no legal right to trade in levy sugar, as right of such a person is purely contractual. A Full Bench of this Court in Shitla Prasad v. M. Saidullah, AIR 1975 Alld. 344 (FB) also repealled the similar contentions which have been raised before us in the instant case, holding that no writ petition can be filed under Art 226 of the Constitution to remedy the breach of contract entered into by a dealer with the Distt. Magistrate for sale of levy Sugar. It was further laid down that if there has been breach of such a contract the only remedy is before the Civil Court, where the person aggrieved can secure specific performance of contract and can seek other necessary reliefs in connection therewith. Division Bench of this Court in M/s. Raj Kumar Ashok Kumar v. Additional Distt. Magistrate, 198i ALJ 271 and Ram Awadh v. State of U. P., 1990 ALJ 567 have also reiterated the same principle while dismissing the writ petition of the dealers. The decision of Division Bench of this Court in Gopal Das Sahu v. State of U. P., 1991 ALJ 498 deals with the cancellation of contract executed by an agent with tie Collector for sale of the Scheduled commodity under the order. This Court held that neither Art. 14 of the Constitution nor principle of natural justice are attracted when agreement to sell the Government food grains through fair price shops is terminated. It was further laid down that relationship of the agents with the Government Is contractual which is non-statutory in nature, and therefore, writ under Art 226 of the Constitution, is not maintainable to compel the Govt. to supply the quota of scheduled commodities to the petitioner therein. The decision of the Division Bench of this court in case of Gopal Das Sahu (supra) and other cases of this court mentioned hereinbefore lay down contract law. 11. The position would, however, be different in the case of Orders de-hors contract. to supply the quota of scheduled commodities to the petitioner therein. The decision of the Division Bench of this court in case of Gopal Das Sahu (supra) and other cases of this court mentioned hereinbefore lay down contract law. 11. The position would, however, be different in the case of Orders de-hors contract. Orders, which are passed by the Government or its authorities in exercise of their executive/administrative power can always be challenged before this Court under Art 226 by a person, who is aggrieved thereby. Although any action taken or any order passed by the authorities under a non-statutory contract cannot be challenged under Art 226 even if such actions or the orders are illegal and arbitrary ; but if the order of the Government/authorities is foreign to and/or is not under the contract, it can always be challenged before this Court under Art. 226 on the ground of violation of Constitutional provisions. In this connection reference may be made to the decision of the Supreme Court in the case of Kumari Shrilekha Vidyarthi v. State of U. P., AIR 1991 SC 537 , wherein the executive order of the Government of U. P. terminating the appointments of all the District Govt. Counsel in all the districts of the State of U. P. was challenged- Supreme Court held that the office or post of District Govt. Counsel has a public element :and is not purely contractual. On that basis it was observed that the validity of the impugned order can be decided on the anvil of Art. 14 of the Constitution. In that connection it was further laid down as follows: "We have no hesitation in saying that the personality of the State, requiring regulation of its conduct In all sphere by requirement of Article 14, does not undergo such redical change after making of a contract merely because some contractual rights accrue to the other party in addition. In that connection it was further laid down as follows: "We have no hesitation in saying that the personality of the State, requiring regulation of its conduct In all sphere by requirement of Article 14, does not undergo such redical change after making of a contract merely because some contractual rights accrue to the other party in addition. It is not as if requirements of Art. 14 sand contractual obligations are alien concepts which cannot exist." It was further observed that, ''Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Art. 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a publics body being undoubtedly on public Interest, the requisite public element for this purpose it present also in contractual matters. We, therefore, find it difficult and unrealstic to exclude the State actions in contractual matters after the contract has been made, from the purview of judicial review to test its validity on the anvil of Art. 14." 12. Relying on the above observations and some other similar observations in the case of Kumari Shrilekha Vidyarthi (supra), learned counsel for the petitioners have argued that the Government action under nonstatutory contract Is open to be challenged on the basis of Article 14 of the Constitution of India and the writ petition under Article 226 to remedy the breach of such contractual obligation committed by the State is maintainable. It is not possible to agree with the learned counsel. In the case of Kumari Shrilekha Vidyarthi (supra) the order, which was under challenge was not passed in exercise of any contractual rights and was in fact foreign to it. It was an order de-hors contract. In that connection Supreme Court has observed that such an order can be challenged on the ground of Article 14 of the Constitution and challenge cannot be thrown out "merely because some contractual rights accrue to the other party in addition." The controversy before the Supreme Court in that case was not about enforcement of a non-statutory contract. The law laid down by the Supreme Court has to be understood in the background of the facts of that case. The law laid down by the Supreme Court has to be understood in the background of the facts of that case. In this connection reference may be made to the case of Ambica Quarry Patel v. State of Gujrat, AIR 1987 SC 1073 , wherein it was laid down as under: "The aforesaid observations have been set in detail in order to understand the true ratio of the said decision in the background of the facts of that case. It is true that this Court held that if the permission had been granted before the coming into operation of the 1980 Act and the forest land has been broken up or cleared, CI. (ii) of section 2 of 1980 Act would not apply in such a case. But that decision was rendered in the background of the facts of that case. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically followed from it" Similarly the Supreme Court in the case of M/s. Radhakrishna Agarwal (supra) has declared that, "the proposition of Jaw laid down in the two cases must be read in the context of facts established in each case". The observations made by the Supreme Court and the law laid down by it in the case of Kumari Shrilekha Vidyarthii (supra) has to be understood in the background of the facts of that case, and as such it cannot be applied to the case of non-statutory contract. It case it is held that the law laid by the Supreme Court in the case of Kumari Shrilekha Vidyarthi (supra) is applicable to non-statutory contract also, the decision will run counter to the law laid down by it in several of the earlier decisions, reference of which have been given above. The decision in the case of M/s. Radhakrishna Agarwal, AIR 1977 SC 1496 , (supra) is a three Judges' decision and the decision of Life Insurance Corporation of India v. Escorts Ltd., AIR 1986 SC 1370 (supra), is a decision given by a Constitution Bench of the Supremo Court, whereas the decision of Kumari Shrilekha Vidyarthi (supra) is of two Judges only. It has been settled by the Supreme Court that Bench of two Judges of the Supreme Court cannot disregard the decision of a Bench of three Judges or that of the Constitution Bench and if two Honourable Judges are inclined to disagree, the case should be referred to larger Bench. Reference in this connection may be made to the case of M/s. Ujagar Prints v. Union of India, AIR 1987 SC 874 . The presumption is that had the Supreme Court intended to disagree with the law laid down in earlier cases regarding the applicability of Art. 14 of the Constitution and maintainability of writ petition under Article 226 in the matter of breach of non-statutory contract, the case would have been referred to a larger Bench What was under challenge in the aforesaid case of Srilekha Vidyarthi was an order de-hors contract. That was purely executive order passed by the Government not in exercise of the contractual rights The relationship of the parties therein was not purely contractual and element of public law was fully involved, as is clear from perusal of the judgment itself. Observation of the Supreme Court in that case cannot be applied to a case where breach is committed of nonstatutory contract where rights of the pasties thereto ate purely contractual. 13. In the case of Dwarkadas Marfatia and sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642 , action of the Board evicting a tenant was under challenge. Eviction of the tenant was not under any contract but in pursuance of the policy of the Board where under plot was to be allotted to a person holding major portion of the plot. The Supreme Court found this policy fair and reasonable. It was also a case of impugned order being foreign to outside contract. Similarly in Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 SC 1031 , there was no question about breach of non-statutory contract involved. In that case relationship between the parties was not governed by any concluded contract. In fact the Supreme Court while allowing the petition of the appellant therein has directed the respondent corporation to consider the plea of the appellant to the effect that the existing arrangement between him and the Corporation amounts to a contract. It was also a case where the order de-hors contract was challenged. 14. In fact the Supreme Court while allowing the petition of the appellant therein has directed the respondent corporation to consider the plea of the appellant to the effect that the existing arrangement between him and the Corporation amounts to a contract. It was also a case where the order de-hors contract was challenged. 14. As far as the case of Shyam Gas Company v. State, AIR 1991 Alld 129, is concerned, it may be mentioned that the main grounds on which this Court allowed the writ petition were that clause 28 of the contract between the Shyam Gas Co. and the Petroleum Co. was unconscionable and unconstitutional being violative of fair play. It was further observed that the petitioner was entitled to be given an opportunity of being heard before cancellation of his contract and granting the dealership of a third person From the judgment of this cane it is not clear as to whether the Court was dealing with a case of statutory or non-statutory contract. In fact distinction between the non-statutory and statutory contract and effect thereof on the rights of the parties thereto to maintain the writ petition does not appear to have been raised and decided. The law laid down by this Court in the above case of Shyam Gas Company cannot be applied to a case where an action is taken or an order is passed by the Government under a non-statutory contract. It is however, not necessary to deal with this case any further as is Shyam Gas Company (supra) has almost been over-ruled by the Supreme Court in IS L.P. No. 3456-59 of 1991, Bharat Petroleum Corporation Ltd v. Shyam Gas Company and others, decided on July 9, 1991 inasmuch as the Honourable Supreme Court did not approve the finding of this court regarding clause :28 of the contract being unconstitutional. The order of this court cancelling the agency created in favour of third person was also set aside. However, the order, so far as it relates to termination of the agency of the respondent no. 1 was upheld without giving any reason. This is clear from the judgment of the Supreme Court in the above case of Bharat Petroleum Corporation, which is reproduced herein below : "Heard learned counsel for the parties. However, the order, so far as it relates to termination of the agency of the respondent no. 1 was upheld without giving any reason. This is clear from the judgment of the Supreme Court in the above case of Bharat Petroleum Corporation, which is reproduced herein below : "Heard learned counsel for the parties. We are of the view that the observations made by the High Court that clause 29 of the Agency agreement is unconstitutional and would not be binding be kept open in the facts of the case, we accordingly leave that question open to be decided in an appropriate case. Having heard counsel for the parties. We are also of the view that there was no justification for the High Court to vacate the agency created in favour of Uttar Pradesh State Food and Essential Commodity Corporation. The agreement with respondent no. 1 did not create an exclusive right of agency in its favour and even with the respondent's agency agreement subsisting, it was open to the petitioner to create further agencies subject to the terms of the agreement in favour of the respondent. The High Court was, therefore, not justified in setting aside that agreement. We sustain the order in favour of; respondent no. 1 to the effect that its agency shall not be terminated. The special leave petitions are accordingly disposed of." Even though the petitioners and other authorised agents cannot challenge the breach of their contract >on the ground of violation of constitutional provisions before this Court under Article 226 of the Constitution but they are not remedyless. Government letter itself provides for appeal against some of the orders, which may be passed by the authorities. That apart, the authorised agents like the petitioners have remedy of civil suit before the appropriate Civil Court, which they can institute before filing of the appeal as well as after the appeal is decided. 15. Our answers to the two questions referred to are as follows : (1) Agreements under which the petitioners have been authorised to work as agents for the sale of scheduled commodities are non-statutory agreements (2) The decision of this Court in the case of Gopal Das Sahu v. State of U. P.. 1991 ALJ 498, lays down correct law and does not require any reconsideration. 16. Let the papers of these writ petitions be placed before the Bench concerned for deciding them.