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2019 DIGILAW 131 (UTT)

Baldev Raj Thukral v. State of Uttarakhand

2019-02-26

R.C.KHULBE, RAMESH RANGANATHAN

body2019
JUDGMENT : RAMESH RANGANATHAN, J. 1. The delay of 08 days in preferring this appeal is not opposed by the learned counsel for the respondents and the delay is, therefore, condoned. 2. This appeal is preferred against the order passed by the learned Single Judge in Writ Petition (M/S) No. 126 of 2019 dated 11.01.2019. 3. Facts, to the limited extent necessary, are that an agreement was executed, between the appellant-writ petitioner and the second respondent on 08.08.2016, allotting the subject land in favour of the appellant-writ petitioner for a period of 5 years w.e.f. 01.09.2016 to 30.08.2021. Clause 14 of the said agreement dated 08.08.2016 stipulates that the period of lease would be for a period of 5 years. In terms of the agreement, the appellant-writ petitioner was running a poly-house over the subject land. Thereafter, by letter dated 12.09.2017, the subject land was allotted by the State Government to the Uttarakhand Transport Corporation for construction of a bus station and a workshop; and the subject land was transferred in favour of the Uttarakhand Transport Corporation. The appellant-writ petitioner has invoked the jurisdiction of this Court, contending that the period of lease of 5 years has not yet expired; and, therefore, the Government letter dated 12.09.2017, and the consequential letter dated 24.12.2017, are liable to be set aside as they are arbitrary and illegal. 4. In the order under appeal, the learned Single Judge observed that the agreement was unregistered; Section 17(1)(d) of the Registration Act stipulates that a document, whereby lease of immovable property is granted from year to year or for any term exceeding one year, is compulsorily registrable; no advertisement was published in the news-papers inviting applications from those who were willing to get the lease; the agreement made no reference to any advertisement inviting applications for allotment; no notification to this effect had also been filed; the subject land was public property; public property cannot be settled to any individual without an invitation for submission of applications from prospective allottees; and public property cannot be settled in a secret manner to an individual. The writ petition was dismissed on the grounds that no applications were invited from the public at large for allotment of the subject land; the subject land had been allotted in favour of the Uttarakhand Transport Corporation for constructing a bus station, which was for a public purpose; and the order, allotting the subject land to the Uttarakhand Transport Corporation on 12.09.2017, was challenged more than a year thereafter. 5. Mr. Siddhartha Sah, learned counsel for the appellant-writ petitioner, would submit that the question, whether or not applications were invited for allotment of the subject land, was not in issue in the writ petition; it was wholly unnecessary for the appellant-writ petitioner, therefore, to have pleaded, in the affidavit filed in support of the writ petition, that allotment was made pursuant to an advertisement being issued inviting applications; in fact, the lease was granted to the appellant-writ petitioner only after an advertisement was issued inviting applications for allotment of the subject land; the only question which necessitated examination was whether the respondents could have, even during the currency of the lease period, allotted the very same land to the Uttarakhand Transport Corporation; and since the action of the respondents is arbitrary, the appellant-writ petitioner is entitled to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. 6. Exercise of jurisdiction, under Article 226 of the Constitution of India, is discretionary, and a Writ is not issued as of right or as a matter of course. (C.R. Reddy Law College Employees’ Association, Eluru W.G. District vs. Bar Council of India, New Delhi : 2004 (5) ALD 180 ). The Court has to weigh public interest vis-à-vis private interest while exercising its discretionary powers. (Ramniklal N. Bhutta v. State of Maharashtra : AIR 1997 SC 1236 ; Manohar Lal v. Ugrasen & others : (2010) 11 SCC 557 ; Master Marine Services Pvt. Ltd v. Metcalfe and Hodgkison Pvt. Ltd : (2005) 6 SCC 138 ; and Air India Ltd. v. Cochin International Airport Ltd. : (2000) 2 SCC 617 ). This Court would refrain from interference save larger public interest. A writ of mandamus and a writ of certiorari are discretionary, unlike a writ of habeas corpus which can be sought as a matter of right. (State of Maharashtra v. Prabhu reported in (1994) 2 SCC 481 ). This Court would refrain from interference save larger public interest. A writ of mandamus and a writ of certiorari are discretionary, unlike a writ of habeas corpus which can be sought as a matter of right. (State of Maharashtra v. Prabhu reported in (1994) 2 SCC 481 ). Among the grounds on which this Court would refrain from interference, in the exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, is if the appellant-writ petitioner, who has invoked the jurisdiction of this Court, has an effective alternative remedy. 7. In the present case, the appellant-writ petitioner is seeking enforcement of obligations under a non-statutory contract. While this Court is not barred from entertaining non-statutory contractual disputes, involving either the State or its instrumentalities, under Article 226 of the Constitution of India, it is not as if this Court is obligated to entertain such disputes in each and every case, for the appellant-writ petitioner can always question allotment of the subject land to the Uttarakhand Transport Corporation, which, in effect, would result in the termination of the lease granted in their favour, before a competent Civil Court. 8. As disputes, involving non-statutory contractual disputes, are better adjudicated, on evidence being adduced by both the parties, before a competent Civil Court, we see no reason to exercise discretion to interfere. Suffice it to make it clear that, in case the appellant-writ petitioner avails the remedy of filing a suit before the Civil Court of competent jurisdiction, the learned Judge shall examine the appellant-writ petitioner’s claim on its merits, uninfluenced by any observations made by the learned Single Judge in the order under appeal, or by us in this order. 9. Subject to the aforesaid observations, the special appeal fails and is, accordingly, dismissed. No costs.