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2013 DIGILAW 494 (JK)

Shabir Hussain Bhat v. State

2013-08-30

DHIRAJ SINGH THAKUR

body2013
1. The petitioner appears to have been allotted a car parking contract at State Motor Garages Parking near press enclave at Srinagar vide letter dated 19-06-2012. This letter was issued by the Deputy Director (R&R), Land Management, SDA, informing the petitioner that his bid for an amount of Rs. 5.65 lacs being the highest has been accepted. 2. The parking contract was for a period of one year from July 3, 2012 to July 2, 2013. 3. The grievance of the petitioner is that even when the contract was for one year, the State Motor Garages car parking area was handed over to the petitioner on July 24, 2012. 4. The petitioner's further contention is that since the State Motor Garages car parking area was near the press enclave, the said area for that reason used to experience a lot of processions, dharnas and protests leading to disruption of his business. His further contention is that because of curfew restrictions and other civil unrest, losses were caused to the petitioner in the month of February-March, 2013. 5. It was further contended that one of the gates in the parking lot was promised to be kept open, which promise was belied, leading to further losses. 6. Finally, the learned counsel for the petitioner urged that with a view to make good his losses, this court should issue an appropriate direction to the respondents for continuing his contract, which was otherwise to expire on July 2, 2013. 7. The extent of applicability of Article 14 in contractual matters, where the State was a party, came up for consideration in the case of M/s Radhakrishna Agarwal v. State of Bihar & ors, (1977) 3 SCC 457 , wherein the Apex Court held as under: "10. It is thus clear that the Erusian Equipment & Chemicals Ltd.'s case (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, no doubt, the State acts 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. At this stage, no doubt, the State acts 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 Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this filed, 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." 8. Subsequently, however, in Verigamto Naveen v. Govt. of A.P & ors, (2001) 8 SCC 344 , the Apex Court held that if the breach of contract involved breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action even when arising out of contract brought it within the sphere of public law. It was held in paragraph 21 as under: "21..... In cases where the decision-making authority exceeded its statutory power or committed breach of rules or principles of natural justice in exercise of such power or its decision is perverse or passed an irrational order, this Court has interceded even after the contract was entered into between the parties and the Government and its agencies. We may advert to three decisions of this Court in Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, Mahabir Auto Stores v. Indian Oil Corpn. And Shrilekha Vidyarthi (Kumari) v. State of U.P. Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of or pertains to contract, brings it within the sphere of public law because the power exercised is apart from contract......." 9. From the facts narrated in the writ petition, as noticed in the preceding paragraphs above, it is seen that no part of the terms of the contract had any statutory force or flavour, a breach whereof could entitle the petitioner to maintain a petition under Article 226 of the Constitution of India to question the breach as being violative of Article 14 of the Constitution of India. The matter at hand pertains to a pure contract between the parties and enforcement or violation thereof cannot give any cause of action to the petitioner to maintain a petition under Article 226 of the Constitution of India. 10. The petition for the aforementioned reasons is misconceived and is accordingly dismissed along with interim application No. 1545/2013.