Judgment 1. In this writ petition, the prayer is for quashing of the order contained in letter No. 3694 dated 1.8.2000 issued by the Estate Officer, Patna Regional Development Authority (hereinafter referred to as the Authority), contained in Annexure 20, whereby and whereunder the allotment of Shop No. 28 in Block A, Ground Floor, at Maurya Lok Complex, Patna in favour of petitioner no. 1 has been cancelled and money deposited by him has been forfeited with further direction to him to give possession of the same within 15 days, failing which action in accordance with the Rules would be taken. Similar prayer has been made on behalf of petitioner no. 2 against the similar action with respect to Shop No. 29 in the same Block. 2. At the outset I must state that in this matter the parties were heard and the order was reserved on 14.8.2000. Later on the request of the parties it was postponed and on 5.12.2000 it was stated on their behalf that the petitioners filed representation, soon after the order was reserved on 14.8.2000, for settlement of the matter outside the Court and the Vice Chairman deputed the Estate Officer to furnish accounts to settle the dispute. Meanwhile the Officers of the Bihar Administrative Service went on strike and thus, the matter remained without any further progress. After the strike was over the Estate Officer was assigned cadre in the newly created Jharkhand State and this Court on 5.12.2000 was informed that another Officer has been entrusted with the said duty. Since then the matter was postponed on several dates on the request of the /earned counsel for the parties and after the Vice Chairman passed the order an 19.3.2001 the matter was finally listed under the heading to be mentioned for refresher on 25.7.2001 and the parties were heard. 3. By the order dated 19.3.2001 the Vice Chairman came to the conclusion reiterating that the demand (already communicated to the petitioners in detail) shown outstanding against them is valid and hence, directed that they would be we/I advised to pay the same. 4. In short, the relevant facts are that Shop Nos. 28 and 29 in question were allotted on 17.7.1981 to the respective petitioners and they got possession over them on 10.6.1985. 4. In short, the relevant facts are that Shop Nos. 28 and 29 in question were allotted on 17.7.1981 to the respective petitioners and they got possession over them on 10.6.1985. As per the terms of the letter of allotment the petitioners were required to deposit 25% of the premium within 15 days and the next 25% within 30 days. According to the authorities, they did not deposit the said amount despite reminders and ultimately the Estate Officer handed over the possession of the shops on the condition that the remaining amount together with interest will have to be paid in 48 equal instalments within four years and in case of delayed payment, additiona late fee at the rate of Rs. 5/- per day wou/d be charged. It appears that the petitioners could not deposit the amount of the premium of the shops within the stipu/ated time and thereafter vide letter dated 4.6.1997 petitioner no. 1 was directed to deposit Rs. 7,31,152/- and petitioner no. 2 was directed to deposit a sum of Rs. 7,88,180/- as late fine besides Rs. 40,350/- being the balance amount towards instalment due against petitioner no. 2 with the threat of cancellation of shops on their failure to deposit the amount. Both the petitioners filed writ petitions bearing C.W.J.C. Nos. 5418 and 5643 of 1997 respectively challenging the validity of the said demand. On considering various contentions advanced on behalf of the parties the High Court in the order dated 21.12.1998 (Annexure 18) disposing of the said writ petitions noted that the solitary question for determination emerges as to whether the respondents are justified in their decision to realise the late fee in addition to the interest of 15% because neither in the letter of allotment nor the copy of brochure brought before the Court any such condition was imposed that in case of delayed payment, a lessee is required to pay the late fee. The Court also noticed that similar is the position with regard to the terms and conditions of the lease agreement. On the other hand, the court also found that it is not in dispute that the condition to realise the late fee was imposed as far back as on 30th May, 1985 and the petitioners got possession of the shops in the month of June, 1985 without challenging those conditions. On the other hand, the court also found that it is not in dispute that the condition to realise the late fee was imposed as far back as on 30th May, 1985 and the petitioners got possession of the shops in the month of June, 1985 without challenging those conditions. It was argued on behalf of the respondent authority that the petitioners having accepted those terms and deposited the premium should not be allowed at this stage to question the validity of such decision. 5. The High Court having noted the above facts found that such disputed facts may not be adjudicated in a writ jurisdiction because to conclude such disputed facts one is required to examine the relevant documents as also whether the Estate Officer had authority to take a decision to impose the late fee In addition to the interest of 15% which was the solitary condition prescribed under Clause 4(b) and disposed of both the writ petitions with a direction to the Vice Chairman of the authority to examine this aspect and find out whether the Estate Officer is also authorised to impose a condition for payment of late fee, although such a condition was neither. imposed in the letter of allotment or the brochure issued by the authority. Pending final decision of the Vice Chairman the High Court directed that "the demand as incorporated in the impugned letters to the extent it is for realisation of the late fee shall remain suspended, subject to the payment of ail other dues including interest within three weeks from today." Thereafter on 16.3.2000 the Vice Chairman of the authority (respondent no. 2) passed the order, contained in Annexure 19, about which the Estate Officer of the authority vide letter No. 1430 dated 22.3.2000 (Annexure I) communicated to the petitioners requiring them to deposit the remaining amount in the accounts of the authority within three weeks. The Estate Officer vide impugned letters dated 1.8.2000, contained in Annexures 20 and 21, informed the petitioners that the allotment of the shops in question has been cancelled and the security deposits have been forfeited as the remaining amount has not been paid within the stipulated time and further directed to handover the possession of the shops in question to the Executive Engineer within 15 days failing which the action in accordance with the Rules would be taken. 6. 6. The petitioners filed C.W.J.C. No. 4607/2000 assailing the validity of the order dated 16.3.2000 (Annexure 19) but after the impugned letters (Annexures 20 and 21) were issued they filed the present writ petition. After the order dated 19.3.2001 was passed by the Vice Chairman reiterating his earlier decision the petitioners filed I.A. No. 1493/2001 in C.W.J.C. No. 4607/2000 seeking withdrawal of the said writ petition with the liberty to challenge the order dated 16.3.2000 as well as the recent order dated 19.3.2001 in the present writ petition. Accordingly, I.A. No. 1497/2001 challenging the validity of the said two orders has been filed besides challenging the letters dated 4.6.1997, as contained in Annexures 8 and 15, whereby and whereunder the petitioners were directed to deposit late fine. As agreed, the learned counsel for the parties have thus also been heard on merit as regards validity of the said orders under challenge in I.A. No. 1497/2001. 7. A counter affidavit on behalf of the authority and its officials (respondents no. 1 to 4) has been fifed in which it is stated that the provisions with regard to payment of Rs. 5/- for each day of default is clearly incorporated in sub-section (iv) of the Deed of Lease Agreement which has purposely been omitted by the writ petitioners while annexing the copy of the Deed of Lease cum Agreement at Annexure 17. According to the case of the respondents, finally the draft lease was placed before the Board of Directors of the authority vide Agenda No. 7/84, who in their meeting dated 17.11.1984 thoroughly considered the different aspects of the terms of the Deed of Lease cum Agreement and approved the same vide Resolution No. 102/84. Photo copies of the said Resolution No. 102/84 dated 17.11.1984, Memorandum No. 7/84 dated 16.11.1984 and the deed of lease cum agreement have been annexed as Annexures A, B and C respectively. According to them, as per Clause (iv) of the lease deed the lessee is required to pay a sum of Rs. 5/- for each day of default from 8th day of the month in which the instalment falls due till the date when the instalment is paid in full. The respondents have not disputed regarding payment of 15% interest on instalment. However, the respondents have denied that there was any policy decision to lease out the premises for a period of 99 years. The respondents have not disputed regarding payment of 15% interest on instalment. However, the respondents have denied that there was any policy decision to lease out the premises for a period of 99 years. According to them, all shops/offices situated/ located in Maurya Lok Complex have been leased out for a period of 66 years only. The respondents have also raised objection that the petitioners having accepted the terms relating to late fee cannot dispute the same after lapse of more than 12 years. It is stated that on 14.1.1985 the petitioner in his application to the Vice Chairman while stating that 50% of the amount of premium of Shop No. 28 has already been deposited requested for instalment for payment of remaining amount and accepted that whatever the terms and conditions remain enforce in the lease deed cum agreement he will abide with the same. A copy of the said letter which was written only by petitioner no. 1 has been annexed as Annexure E. It is alleged that the authority thoroughly considered the application and in anticipation of execution of the lease the possession of the shop in question was handed over to the petitioner vide Memo No. 2193 dated 30th May, 1985 (Annexure F). It is alleged that despite request made to the petitioners time without number for depositing non-judicial stamps for execution of the lease deed they deliberately ignored the same. It is further alleged that the petitioners did not prefer to obey the orders passed by this court in the earlier writ petition in its true spirit and as such, the authority preferred to maintain status quo in not encashing the Bank draft sent by them. 8. In their supplementary counter affidavit also they besides bringing the letter of allotment dated 17.7.1981 and the petition of the petitioner dated 14.1.1985 as well as letter of the Estate Officer dated 30th May, 1985 as Annexure K, L and M respectively, have reiterated the above mentioned facts and also stated that the authority has to procure funds by borrowing money from the financers like Hudco etc. and a major portion of interest charged from the individual beneficiaries has to be paid back to the Financers and the burden of payment rises every day every hour and every minute, in case of delay in payments. and a major portion of interest charged from the individual beneficiaries has to be paid back to the Financers and the burden of payment rises every day every hour and every minute, in case of delay in payments. According to them, the Financers take recourse to charge interest, penal interest and recall of loan/advance in case the authority fails to repay the loans/instalments in time. However, neither any document has been brought on record in support of the same nor have furnished the details about repayment of alleged loan of the Fianacers. 9. Mr. Shahi, learned counsel appearing for the petitioners, has contended that the demand on late fee for delayed payment of premium is quite arbitrary and unjustified, as from a bare reference to the allotment letters and the terms and conditions and mode of settlement prescribed by the authority in its brochure show that in case of delayed payment, a lessee was required to pay a simple interest at the rate of 15%. He also referred to Condition No. 4(b) of the Terms and Conditions for long term lease with respect to those shops in question and contended that even in the form prescribed in the lease deed, there is no such condition that in case of default in payment of premium a lessee will be required to pay late fee at the rate of Rs. 5/- per day in addition to high rate of 15% interest. It is, thus, contended that once the contract stood concluded the unilateral imposition of the condition for payment of additional fee on delayed payment besides simple interest at the rate of 15% being unconscionable is wholly illegal, arbitrary and unjustified and not permissible in law. It is submitted by Mr. Shahi that unfair, untenable and irrational clause in a contract is unjust and amenable to judicial review as has been held by the Apex Court in the case of LIC of India & anr. V/s. Consumer Education & Research Centre & Ors., reported in (1995) 5 SCC 482 . It is submitted by Mr. Shahi that unfair, untenable and irrational clause in a contract is unjust and amenable to judicial review as has been held by the Apex Court in the case of LIC of India & anr. V/s. Consumer Education & Research Centre & Ors., reported in (1995) 5 SCC 482 . It is further submitted that despite the earlier order dated 21.12.1998 of this Court passed in C.W.J.C. No. 5418/97 and analogous cases the Vice Chairman has not bothered to decide as to whether the Estate Officer had authority to take a decision to impose late fee in addition to the interest of 15% for delayed payment which was the solitary condition prescribed under clause 4(b) of the long term lease and thus, the writ petition should succeed on this ground alone. 10. Mr. Singh, learned counsel appearing for the respondent authority, has submitted that the petitioners having not challenged the conditions mentioned in the letter dated 30th May, 1985 that in case of delayed payment of instalments late fee @ Rs. 5/- per day would be charged now for over 15 years cannot be allowed to raise such objection after lapse of substantial period of time on the ground that the terms and conditions of the contract have been changed in an arbitrary manner. He submitted that in fact the petitioners on the basis of the said conditions mentioned in the letter dated 30th May, 1995 took over the possession of the shops in question and did not exercise any option to object to the same. It has been contended that the petitioners are bound by their letters dated 9.4.1981 and 14.1.1985 addressed to P.R.D.A. wherein they undertook that they would accept all the terms and conditions of the P.R.D.A. regarding the allotment of the shops and thus, cannot now question the validity of terms for payment of additional fee on delayed payment. He submitted that Condition No. IV of the proposed lease deed clearly lays down that Rs. 5/- would be paid for each day of default and hence, the Vice Chairman in his impugned order (Annexure 19) has held that the Estate Officer did not impose any new condition rather he only communicated the conditions of the lease deed. 11. He submitted that Condition No. IV of the proposed lease deed clearly lays down that Rs. 5/- would be paid for each day of default and hence, the Vice Chairman in his impugned order (Annexure 19) has held that the Estate Officer did not impose any new condition rather he only communicated the conditions of the lease deed. 11. Learned counsel for the petitioners in reply submitted that clause 8 of the Brochure provides that the terms and conditions of the lease are those which are contained in the form of the 99 years Lease Agreement prescribed by the authority and that the lessee shall be deemed to have agreed to all the terms and conditions contained therein. Under the said clause the lessee is required to execute lease deed in the said form when called upon to do so. It it submitted that the prescribed form of the 99 years Lease Agreement did not provide for any such provision for imposition of fine on delayed payment. According to him, the reliance placed in this regard by the learned counsel for the respondents on Annexure C to the counter Affidavit is wholly misplaced and not tenable. It is submitted that the form of the Deed of Lease cum Agreement (Annexure C) is with respect of 66 years of lease and not 99 years of lease. It is submitted that the condition for imposition of late fine was not mentioned in the Brochure or in the offer and acceptance by the petitioners. Learned counsel for the authority has failed to show that in the Deed of Lease cum Agreement for 99 years also there was any such condition for payment of late fine. 12. This Court finds force in the submission of the learned counsel for the petitioners. The Brochure (Annexure 4) clearly provides that "the terms and conditions of the lease are those which are contained in the form of the 99 years Lease Agreement prescribed by the authority". It also provides that "in case of such lease hold space offered for shops as well as offices, the highest bidder shall on the fall of the hammer, pay to the authority through the officer conducting the auction, at least 25% of the Bid Money towards Earnest Money in cash. No other mode of payment shall be accepted. It also provides that "in case of such lease hold space offered for shops as well as offices, the highest bidder shall on the fall of the hammer, pay to the authority through the officer conducting the auction, at least 25% of the Bid Money towards Earnest Money in cash. No other mode of payment shall be accepted. The lessee shall pay another 25% of the bid money within one month from the date of acceptance of bid and the balance amount of 50% is to be paid within three months from the acceptance of the bid." Alternatively it provides that "the balance amount of the bid money can be paid by the lessee within a period of four years, in equal monthly instalments together with a simple interest of 15%. Payment of instalment is to start from the date of handing over of possession of the premises to the lessee. In case of failure to make payment on due date, the authority shall have the right to cancel the lease for re-auction and also take necessary legal steps for realisation of the outstanding dues and it also provides that in the event of the lessees failure to deposit the second and subsequent instalments within the stipulated period, the amount of initial payment (Earnest Money) shall stand forfeited. Besides the said penal consequences there is no provision for charging fine on delayed payment obviously because one of the conditions is to realise a high rate of 15% interest and the authority also reserved the right to cancel the lease for reauction as well as for forfeiture of the earnest money and taking legal action. Thus, it has rightly been submitted by the learned counsel for the petitioners that for any change in the said terms the Estate Officer was not competent to unilaterally impose the impugned condition which aspect has completely been overlooked by the Vice Chairman despite the earlier order of this Court (Annexure 18). 13. It is well settled that any contract being a bilateral one cannot be unilaterally changed by either party to the contract. In the present case, at the time when offer submitted by the petitioners were accepted there was no such condition relating to imposition of late fine in existence. Learned counsel for the respondent authority has failed to show that the petitioners ever agreed for imposition of such condition. In the present case, at the time when offer submitted by the petitioners were accepted there was no such condition relating to imposition of late fine in existence. Learned counsel for the respondent authority has failed to show that the petitioners ever agreed for imposition of such condition. He, however, has referred to Annexure E to the counter affidavit which is a letter written by petitioner no. 1 on 14.1.1985 to the Vice Chairman of the authority. In the said letter, it is only mentioned that the petitioner is agreeable to the general terms of the lease deed but it is ndt mentioned therein that he is agreeable to the terms which are not provided in the letter of offer and Brochure. This Court, thus, fails to appreciate as to how Annexure E is of any help to the (earned counsel for the respondents: 14. This Court does not find any force in the submission of the learned counsel for the respondent authority that the petitioners are bound by their letters dated 9.4.1981 and 14.1.1985 and thus, now cannot question the validity of terms for payment of additional fee on delayed payment. In fact, I have noticed above that in the letter dated 14.1.1985 there is nothing to show that petitioner no. 1 agreed for payment of additional fee on delayed payment. It is true that the petitioners took over the possession in pursuance to the letter of the Estate Officer which provided the condition that the remaining amount together with interest will have to be paid in 48 equal instalments within four years and in case of delayed payment additional late fee at the rate of Rs. 5/- per day would be charged but such condition being unfair, irrational and contrary to initial terms, in my opinion, is unjust. 15. Learned counsel for the respondents is not correct in his submission that the Vice Chairman in the impugned order has rightly held that the Estate Officer did not impose any new condition; rather he only communicated the conditions of the lease deed. 15. Learned counsel for the respondents is not correct in his submission that the Vice Chairman in the impugned order has rightly held that the Estate Officer did not impose any new condition; rather he only communicated the conditions of the lease deed. Lease deed (Annexure C to the counter affidavit) relied upon by the learned counsel for the respondents relates to the fixed period of 66 years which of course provides that in case of default in timely and punctual payment of instalments alongwith the interest due to the Lessor, besides other consequential actions mentioned therein, the lessee shall pay further sum of Rs. 5/- only for each day of default from 8th day of the month in which the instalment fell due till the date when the instalment is paid in full. The terms and conditions and mode of settlement prescribed in the Brochure, contained in Annexure 4, in response to which the allotment of shops in question have been made clearly show that the settlement in question is for 99 years renewable lease and that the terms and conditions for the lease are those which are contained in the form of the 99 years lease agreement prescribed by the authority. It provides that the lessee shall be deemed to have agreed to all the terms and conditions contained therein and shall execute the lease deed in the said form when called upon to do so. Learned counsel for the respondent authority has failed to produce the form of the 99 years Lease Agreement prescribed by the authority. According to the case of the petitioners there is no such condition for payment of late fine at the rate of Rs. 5/- only per day in case of default in the form of the 99 years Lease Agreement prescribed by the authority. 16. Under such circumstances, in my opinion, the Vice Chairman, is not correct in holding that the Estate Officer did not impose any new condition; rather he only communicated the conditions of the lease deed. To me it appears that the Estate Officer also proceeded under misconception on account of the terms and conditions of the lease in the form for 66 years which is the basis also in the pleading filed on behalf of the respondents. To me it appears that the Estate Officer also proceeded under misconception on account of the terms and conditions of the lease in the form for 66 years which is the basis also in the pleading filed on behalf of the respondents. It is true that the petitioners took over the possession in pursuance to the letter of the Estate Officer which provided the condition that the remaining amount together with interest will have to be paid in 48 equal instalments within four years and in case of delayed payment additional late fee @ 5/- per day would be charged, but such unilateral condition, in my opinion, is contrary to the initial terms besides being unfair, irrational and unjust. In the present case at the time when the offer submitted by the petitioners were accepted there was no condition relating to imposition of late fine. Moreover, the imposition of condition regarding payment of late fine in the letter of the Estate Officer, in my opinion, is unconscionable and arbitrary inasmuch as according to the terms and conditions mentioned in the Brochure (Annexure 4) the petitioners are required to pay high rate of interest @ 15% on the due amount and for the delay in payment of any instalment they are to suffer by paying more amount by way of interest. It is true that the authority could have taken legal action against them in case of default and had cancelled their allotment also on that account but, in my opinion, later by incorporating the impugned condition for imposition of late fine, which amounts to penalising the petitioners twice, the respondent authorities have acted arbitrarily. 17. It is well settled that an unfair and untenable or irrational clause in a contract is also unjust and amenable to judicial review. In common law a party was relieved from such contract. In Gillespie Bros. & Co. Ltd. V/s. Roy Bowles Transport Ltd., (1973) 1 All ER 193 : (1973) 1 OB 400, Lord Denning for the first time construing the indemnity clause in a contract questioned that are the courts to permit party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreasonably, as to be unconscionable, and stated : "When it gets to this point, I would say, as I said many years ago, ... there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused. It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so." 18. In Lloyds Bank Ltd. V/s. Bundy, (1974) 3 All ER 757, inequality of the bargaining power was enunciated by Lord Denning M.R. and held that one who enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity ... the one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconscious of the distress he is bringing to the other... One who is.in extreme need may knowingly consent to a most improvident bargain, solely to relieve the strains in which he finds himself. It would not be meant to suggest that every transaction is saved by independent advice. But the absence of it may be fatal. 19. Thus, in the present case even if it is assumed that while taking over the possession under the orders of the Estate Officer the petitioners did not object to the impugned terms and thus, impliedly accepted it, the said condition cannot have binding effect on them as their bargaining power was impaired by reason of their needs or desire to get the allotment of the shops. It is well settled that the freedom of contract must be founded on equality of bargaining power between the contracting parties. But in the present case the petitioners had no option but to take possession of the shops in question. 20. Under such circumstances, this Court does not find any force in the submission of the learned counsel for the respondents that if the conditions were not acceptable to the petitioners they could have raised objection and had the option not to take delivery of possession. This court also does not find any force in the submission of the learned counsel for the respondents that in view of Full Bench decision of this Court reported in 1994 (2) PLJR 219 this writ petition with regard to contractual obligation is fit to be dismissed. 21. This court also does not find any force in the submission of the learned counsel for the respondents that in view of Full Bench decision of this Court reported in 1994 (2) PLJR 219 this writ petition with regard to contractual obligation is fit to be dismissed. 21. It is now well settled that the action of the State or its instrumentality or public authority having public element is amenable to writ jurisdiction and even if the State/instrumentality/authority enters into contract with private persons, writ petition filed by the contracting private parties challenging the terms of the contract as being arbitrary, unjust and unfair, is maintainable. The Supreme Court in the case of LIC of India & anr. V/s. Consumer Education & Research Centre & Ors. (supra) while narrowing down the distinction between public law and private law remedy held that Court has power to mould the relief appropriately to remedy injustice. 22. In the result, the writ application succeeds. The impugned orders dated 1.8.2000, contained in Annexure 20 and 21, the order dated 16.3.2000, contained in Annexure 19, the order dated 19.3.2001, contained in Annexure 24 (wrongly mentioned as Annexure 20 in I.A. No. 1497/2001) and the letters dated 4.6.1997, contained in Annexures 8 and 15, are quashed to the extent whereby the petitioners have been required to pay iate fee @ Rs. 5/- per day in addition to high rate of 15% interest for delayed payment. However, in the facts and circumstances, this Court directs the respondent authorities to raise fresh demand with respect to the remaining amount, if any, alongwith up-to-date interest @ 15% within two weeks and the petitioners are directed to pay full amount within two weeks of the receipt of the demand, failing which the authority shall be at liberty to proceed further in the matter in accordance with law. It is further made clear that if the petitioners deposit the remaining amount with up-to-date interest within the aforesaid time the respondent authority will execute the deed of settlement of the shops in question as per the terms mentioned in the offer.