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2005 DIGILAW 538 (ALL)

Bank of Baroda v. State of U. P.

2005-03-21

B.S.CHAUHAN, DILIP GUPTA

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( 1 ) THE grievance sought to be raised in the present petition is that the petitioner Bank is not being permitted by the respondent Landlords to collect the documents from the premises which had been leased to it since the landlords have locked the premises. ( 2 ) WE have heard learned Counsel for the petitioner Shri Ashok Trivedi; learned Standing counsel appearing for respondent Nos. 1 to 5 and Shri Umesh Vats for respondent Nos. 6 and 7. ( 3 ) FROM the records it transpires that the petitioner Bank executed a lease agreement with respondent Nos. 6 and 7 for opening its branch in the First Floor of House No. 106, Mohalla ruhatta, Jaunpur City. Pursuant to the aforesaid agreement, the petitioner Bank too possession of the property on a monthly rent of Rs. 6000/- and started its business. However, in the year 2002, the Government of India took a decision to merge the petitioner Bank with Bank of Baroda and a notification in this regard was issued on 19th June, 2002. The petitioner Bank, therefore, took a decision to close the aforesaid branch and then gave a notice to the respondent landlords regarding its interim to determine the lease. However, a notice was also sent by the respondent landlords to the petitioner Bank. ( 4 ) LEARNED Counsel for the petitioner submitted that there are certain documents of the petitioner bank which are locked in the premises, but the landlord are not permitting the Bank authorities to enter the premises and collect them and for this purpose, the Bank authorities have written various letters to the District Magistrate and the Police authorities for providing help, but no action has been taken. It is in these circumstances, the present petition has been filed for the relief mentioned above. ( 5 ) TO us, the dispute sought to be raised appears to be primarily a dispute between the Landlord and a Tenant and as to whether the said issue can be agitated in a writ petition has been decided by the Honble Apex Court in Mohan Pandey and Ors. v. Usha Rani Rajgaria (Smt.) and Ors. , (1992) 4 SCC 61 : 1992 SCFBRC 318, wherein the Apex Court held that a regular suit is the appropriate remedy for settlement of dispute relating to property rights between the private person and not the writ jurisdiction. v. Usha Rani Rajgaria (Smt.) and Ors. , (1992) 4 SCC 61 : 1992 SCFBRC 318, wherein the Apex Court held that a regular suit is the appropriate remedy for settlement of dispute relating to property rights between the private person and not the writ jurisdiction. The Honble Apex Court rejected the contention on behalf of the landlord that it was not a case against a tenant but a direction was sought to the administration and police authorities to take appropriate action against the tenant and, therefore, the writ was maintainable. The Apex Court held as under:" There is no doubt that the dispute is between two private persons with respect to an immovable property. . . . . . . . . . . . . The respondent justifies the step of her moving the High Court with a writ petition on the ground of some complaint made by the appellants and the action by the police taken thereon. We do no agree that on account of this development, the respondent as entitled to maintain a writ petition before the High Court. It has repeatedly been held by this Court as also by various High Courts that a regular suit is the appropriate remedy for settlement of disputes relating to property rights between the private persons and that the remedy under Article 226 of the Constitution of India shall not be available except where violation of some statutory duty on the part of a Statutory Authority is alleged. . . . . . . . . . . . . . The High Court cannot allow the constitutional jurisdiction to be used by deciding the disputes for which remedies, under the general law, civil or criminal, are available. It is not entitled to replace the ordinary remedies by way of a suit or application available to as litigant. The jurisdiction is special and extraordinary and should not be exercised casually or lightly. " ( 6 ) SIMILAR view has been reiterated in Bharat Petroleum Corporation Ltd. and Ors. v. N. R. Vairamani and Ors. , (2004) 8 SCC 579 : 2004 SCFBRC 454. In that case, there was a dispute regarding the renewal of the lease deed between the dealer and the tenure holder. High Court had allowed the writ petition issuing direction to the tenure holder to renew the lease. v. N. R. Vairamani and Ors. , (2004) 8 SCC 579 : 2004 SCFBRC 454. In that case, there was a dispute regarding the renewal of the lease deed between the dealer and the tenure holder. High Court had allowed the writ petition issuing direction to the tenure holder to renew the lease. However, the apex Court held that such a remedy could not be given by the High Court in exercise of its jurisdiction under Article 226 of the Constitution, as it was a matter between two private parties and, though the Bharat Petroleum Corporation etc. had been involved but it was merely a tenant. The Apex Court set aside the judgment of the High Court and directed the party to approach the civil Court for appropriate remedy. ( 7 ) UNDOUBTEDLY, in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti mahotsav Smark Trust and Ors. v. V. R. Rudani and Ors. , AIR 1989 SC 1607 , the Supreme Court explained the meaning of word "person" contained in Article 226 of the Constitution of India and held that the writ jurisdiction can be exercised by the High Courts against a person if he is performing any public duty. While deciding the said case, reliance had been placed on various judgments, particularly, Dwarkanath v. Income-tax Officer, AIR 1966 SC 81 ; Praga Tools corporation v. C. V. Imanual and Ors. , AIR 1969 SC 1306 . The Supreme Court held that if the rights are purely of a private character, no mandamus can be issued. However, if a person performs public duty, writ can be issued. The Apex Court has consistently held that writ can be issued against a person only when if he has some public duty to perform. Writ may also lie provided the fundamental rights of the citizens are infringed by a private individual. (Vide Shri sohan Lal v. Union of India and Anr. , AIR 1957 SC 529 ; Peoples Union for Democratic Rights v. Union of India and Ors. , AIR 1982 SC 1473 ; and U. P. State Coop. Land Development Bank ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753 ). ( 8 ) A Seven Judges Bench of the Honble Apex Court considered the issue in detail in Pradeep kumar Biswas v. Indian Institute of Chemical Biology and Ors. , AIR 1982 SC 1473 ; and U. P. State Coop. Land Development Bank ltd. v. Chandra Bhan Dubey, AIR 1999 SC 753 ). ( 8 ) A Seven Judges Bench of the Honble Apex Court considered the issue in detail in Pradeep kumar Biswas v. Indian Institute of Chemical Biology and Ors. , (2002) 5 SCC 111 , wherein the honble Supreme Court explained the meaning of "state instrumentalities", "state Agency", "quasi Government Agency" and "authority", and held that writ may lie if the order has been passed by a Statutory Authority or the respondent was involved in performance of public duty. ( 9 ) IN General Manager, Kisan Sahkari Chini Mills, Ltd. , Sultanpur U. P. v. Satrughan Nishad and ors. , (2004) 1 U. P. L. B. E. C. 7, the Honble Supreme Court held that a writ of mandamus can be issued under Article 226 of the Constitution of India only when the authority or the person performs a public function or discharges a public duty. ( 10 ) IN the present case, it cannot by any stretch of imagination, be held that the private respondent landlords are performing public duty. The jurisdiction of the High Court under article 226 of the Constitution of India, therefore, cannot be invoked. ( 11 ) IN view of the aforesaid, the present petition is not maintainable and is dismissed. The petitioner may, if so advised, file a suit in the appropriate Court for redressal of its grievance. . .