ORDER
1. The writ petition is filed by one Messers AVG Marketing Private Agencies Private Limited represented by its Managing Director Sri G. Ashok. The writ petition is filed for a writ of certiorari to call for the records in proceedings Roc No.738/98/A2 dated 3-2-199S issued by the first respondent, the Municipal Corporation of Guntur and for a consequential direction to the respondents to permit the petitioner to carry on business in the premises bearing Shop No.2 situated in Brahmananda Building, Lalapet, Guntur. The writ petition is filed on 28-12-1998 though the petitioner received the impugned proceedings on 14-2-1998.
2. The case of the petitioner is that he is engaged in the business of luggage articles. He became a successful lessee of Shop No.2 in Brahmananda building and according to him, he is also carrying on a small tea stall
by name Hotel Ashok in the stair case room with the knowledge of the respondents. He was inducted as a lessee in the year 1980 and the lease was being extended from time to time on enhancement of rent at 33 1/2% once in three years. According to the petitioner such renewal was made for the year 1997-98. The petitioner took religious Deeksha to go to Shabari Malai. After returning from the holy place, he received a cover on 14-2-1998 which contain the impugned proceedings. By the impugned proceedings, the first respondent informed that the petitioner violated the lease regulations by sub-letting the leased premises in favour of the 3rd respondent and as the petitioner failed to respond to the show-cause notice, the tease was cancelled by the first respondent. The petitioner denies receipt of any show cause notice dated 20-1-1998. The petitioner challenges this order on the ground that the first respondent passed the order in violation of principles of natural justice and without application of mind and that he has not sub-let the premises to the 3rd respondents. The petitioner also makes a complaint that his material worth Rs.2.5 lakhs is in the premises and the third respondent was inducted into the premises in question by the Municipal Corporation without allowing him to take the material. The petitioner also makes a reference to OS No.197 of 1998 on the file of the Senior Civil Judge, Guntur filed by the 3rd respondent seeking a declaration that the enhancement of rent from Rs.7,587/- to Rs.16,400/- is bad in law. Though the affidavit says that a copy of the plaint is annexed, no such copy is annexed. However, the petitioner says that he filed an application to get himself impfeaded in the said suit. The petitioner further submits that the unilateral decision of the Municipal Corporation is bad in law. In view of the fact that he is willing to pay a monthly rent of Rs. 18,018/- per month, he should be allowed to continue the lease by reinducting him as a lessee.
3. The first respondent filed counter. A reading of the counter shows that the petitioner is guilty of suppressio veri, suggestio falsi. The first respondent admits the lease in favour of the petitioner G. Ashok who claims to be the Managing Director. According to the first respondent, the premises in question was never leased out to AVG Marketing Agencies and G. Ashok never carried on business of tea stall under the stair-case and the lease was extended till 1997-98. After having come to know that the petitioner sub-let the leased premises to third respondent by taking huge amounts as good-will without the knowledge to the officials of Corporation, the Corporation issued notice and as no reply was received from the petitioner G. Ashok, the Corporation passed the impugned order cancelling the lease. It is also stated that a news item was published in Eenadu news paper on 25-2-1998 to the effect that Sri. G. Ashok left Guntur after deceiving the public to a tune of Rs.2 crores.
4. The first respondent also stated that the petitioner herein filed OS No.268 of 1998, presumably for injunction restraining the Municipal Corporation from interfering with the alleged possession. According to the first respondent when the suit filed by the petitioner was dismissed for default on 23-11-1998, the petitioner approached this Court by filing this writ petition. It is also stated that as per the notice received from the Counsel of Sri G. Ashok, he filed IA No. 1321 of 1998 in OS No.268 of 1998 to restore the suit. As to the contention that the 3rd respondent was given lease, the first respondent admits that the Standing Committee in its meeting held on 24-12-1998 took note of the fact that the 3rd respondent paid all arrears of rent and agreed to continue to pay rent at Rs. 16,4007- per month. It is contended that Sri G. Ashok is a wilful defaulter and hence he has no right for continuation of lease and therefore, the writ petition may be dismissed.
5. I have heard the learned Counsel for the petitioner and also the learned Standing Counsel for respondent Nos.1 and 2. The lessee G. Ashok who approached this Court as Managing Director of AVG Marketing Agencies has not filed any reply affidavit denying the various averments made in the counter of the first respondent.
6. The petitioner is a lessee of Shop No.2 of Brahmananda Building. He was given extension of lease from 1980 onwards. Whenever there is extension of lease, the rent was was enhanced at 33 1/2%. The petitioner inducted 3rd respondent as sublessee by taking huge amounts which is against public interest. A citizen cannot be allowed to fill up his coffers by misusing the public property. When the Corporation came to know of this, they issued notice on 20-1 -1998. Even according to the petitioner, as per Rule 9 of the relevant Rules, the Standing Committee has got power to cancel the lease. Though the petitioner says that he has not received the notice, it should be held that notice was duly served on him and he did not reply. He was in ‘Deeksha’ and he received the impugned order on 14-2-1998, then he filed a suit OS No.266 of 1998 on the file of III Additional Junior Civil Judge, Guntur. The same was dismissed for default on 23-12-1998. He filed IANo.1321 of 1998 for restoration of the suit and the same is pending. Not only this, admittedly he also filed an application to get impleaded in OS No. 197 of 1998 on the file of Senior Civil Judge, Guntur. This suit is filed by the 3rd respondent for declaration that enhancement of rent is bad in law. From all this, it is clear that the petitioner approached the Civil Court having lost the case and having failed to get any relief, he approached this Court by filing this writ petition only on 28-12-1998. The petitioner deliberately suppressed the fact of filing suit OS No.266 of 1998 and filed the present writ petition. Therefore, it should be held that this writ petition is not bona fide and it is only
a sharp practice designed to abuse the process of law. Such practice has been severely contemned by the Supreme Court in Municipal Corporation of Delhi v. Kamla Devi, . The facts in the said case are as follows:
The Delhi” Municipal Corporation determined the rental value of the property situated in Delhi. The owner filed an appeal against the assessment order. Thereafter, the owner filed a suit in Ghaziabad in the State of Uttar Pradesh on 19-4-1991. The suit was for declaration that the assessment order passed by the Assessor was illegal and void ab initio. A decree for prohibitory injunction restraining the Municipal Corporation from attaching the owners property was passed ex parte in the suit before the Ghaziabad Court. The fact that appeal against the assessment order was pending was not delibarately supressed. In these facts and circumstances the Supreme Court came to the conclusion that the frame of the suit, language and terms in which the declaration is sought suggest a clear attempt to over-ride the process of the Court.
7. The object of filing this writ petition by the petitioner is only to obtain extension of lease and direction to the Municipal Corporation, Guntur to permit the petitioner to carry on the business. Nowhere in the affidavit, the petitioner stated that his suit for injunction was dismissed by the Court of Junior Civil Judge, Guntur. The petitioner has not approached this Court with clean hands as mentioned in the beginning. The remedy under Article 226 of the Constitution of India is discretionery remedy. Therefore, this Court is not inclined to exercise the extraordinary power under Article 226 of the Constitution of India.
8. A brief discussion about the merits of the case also does not entitle the petitioner to any relief in this writ petition. It is
settled law that the rights and obligations flowing from a contract, whether it is statutory contract or non-statutory contract, are to be adjudicated in a Civil Court because they involve questions of interpretation of contract and also the conduct of the parties to the contract which require elobarate evidence. The law has been stated and restated in many cases by apex Court. In Radha Krishna Agarwal v. State of Bihar, AIR 1977 SC 1496 the law was declared thus:
“……after the State or its agents have
entered into the field of ordinary contract, the relations are no longer governed by the Contitutional provions 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 which the State or its agent purporting to act within this field, performed any act.”
9. In Assistant Excise Commissioner v. Issac Peter, the law relating to scope of writ jurisdiction in matters involving contractual obligations was again considered. The Supreme Court ruled:
“We are therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones there is no room for invoking the doctrine of fairness and reasonableness against one party to the Contract (State) for the purpose of alternate or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contract (they may be statutory in some cases) and the law relating to contracts.”
10. Therefore, the law is well settled that the High Court has no jurisdiction to
enforce the liabilities arising out of a contract in writ proceedings under Article 226 of the Constitution of India. In support of this proposition, this judgment need not be burdened with various authorities of this Court as well as the Supreme Court. But a passage from a recent judgment of the Supreme Court in State of Himachal Pradesh v. Raja Mahendra Paul, (1994) 4 SCC 43 may be usefully quoted:
“It is true that the powers conferred upon the High Court under Article 226 of the Constitution are discretionary in nature which can be invoked for the enforcement of any fundamental right or legal right but not for mere contractual right or legal right but not for mere contractual rights arising out of an agreement particularly in view of the existence of an efficacious alternative remedy. The constitutional Court should insist upon the party to avail of the same instead of invoking the extraordinary writ jurisdiction of the Court. This does not however debar the Court from granting appropriate relief to a citizen under peculiar and special facts notwithstanding the existence of an alternative efficacious remedy. The existence of special circumstances are required to be noticed before the issuance of the direction by the High Court while invoking the jurisdiction under this said Article.”
11. As already held, the conduct and circumstances of the present case do not present any circumstances which compel this Court to feel persuaded to deviate from the settled position of law regarding exercise of jurisdiction under Article 226 of the Constitution of India in enforcing the contractual obligations.
12. There is another angle to the case. The petitioner Sri G. Ashok approached the Civil Court and filed OS No.266 of 1998 on the file of III Additional Munsif
Magistrate (Now Junior Civil Judge), Guntur. The same was dismissed for default on 23-11-1998. Therefore, the ground raised in the writ petition that the notice issued by the first respondent on 20-1-1998 has not been received by the petitioner is hit by the principles of res judicata. Needless to mention that after 1976 amendment to Code of Civil Procedure, the ex parte judgment and decree and an order dismissing the suit for default also operate as res judicata. Even otherwise, the petitioner is precluded from raising the same ground because his suit before the Junior Civil Judge, Guntur was dismissed for default. Further the petitioner sub-let the premises in question to the 3rd respondent. The allegation is that the petitioner collected huge amount as goodwill and did not inform the Municipal Authorities before sub-letting the premises to 3rd respondent. Though a specific averment is made in the counter, the petitioner has not chosen to file reply affidavit therefore this averment would have to be taken as admitted.
13. All the circumstances and the findings recorded hereinabove compel this Court to come to the conclusion that the writ petition is wholly mis-conceived. It is a clear case of abuse of process of the Court. The jurisdiction under Article 226 of the Constitution of India shall not be exercised in a case like this. The writ petition is liable to be dismissed in limini.
14. For all the above reasons, the writ petition is dismissed with costs quantified at Rs.2,000/- to be paid by the petitioner to A.P. Legal Aid Service
Authority, Hyderabad.