JUDGMENT N.K. Mehrotra, J.
1. This is a petition under Article 226 of the Constitution of India for issuing a writ in the nature of certiorari to quash the impugned orders dated 19.10.2002 and 31.3.2003, passed by the opposite party (Annexures-1 and 2 to the writ petition) whereby the job work awarded in favour of the petitioner, had been terminated and a writ in the nature of mandamus commanding the opposite parties to allow the petitioner to continue to work on the job work awarded to him on the same terms and conditions as mentioned in the original agreement dated 12.6.2001, Annexure-3. As alleged in the petition, the petitioner is a small scale unit engaged in Software Development and Computer Data Processing Job Work. The petitioner had been awarded the job work of computerisation of the electoral rolls of panchayat and local bodies for the division of Gorakhpur by the opposite party in pursuance of the aforesaid job work. Parties had entered into an agreement on 12.6.2001 where the terms and conditions of the said job work has been spelt out in detail. Copy of the said agreement is Annexure-3 to the writ petition. It is alleged that in pursuance of the said agreement, the petitioner started working on the same and strictly abided by the guidelines/terms and conditions stipulated in the said agreement. The petitioner was required to complete the said job work within six months from the date of the agreement or from the date of providing the voter list of the said constituency whichever was later. It is further alleged that the petitioner has not been provided the voter list of certain local bodies of the Gorakhpur district and had constantly reminded the opposite party of the same through periodic reports and also made representation to the opposite party to the above effect but to date the petitioner has not been provided with the data/voter list of the said constituency. The opposite party has not released the 60% running amount according to the agreement. On 19.10.2002, the entire job work of the computerisation of the electoral rolls of the panchayat and local bodies which had been allotted to the concerned parties including the petitioner has been terminated by the opposite party and the petitioner received the intimation on 31.3.2003. Thereafter, the petitioner made a representation to the opposite party on 19.4.2003 to the effect that it was illegal on its part to abruptly terminate the said job work without taking the petitioner into confidence without providing the opportunity to the petitioner particularly when the petitioner has already completed 95% of the said job work and the remaining job work was pending on account of the non-providing of voter list to the petitioner by the opposite party. Thereafter, the petitioner sent a reminder to the aforesaid representation on 25.4.2003 but of no avail. It is contended that the petitioner has also spent a considerable money of many in setting up the infrastructure for the completion of the said job work.
2. With the aforesaid averments, in the petition, the impugned orders dated 19.10.2002 and 31.3.2003 have been assailed on the grounds that the impugned order dated 19.10.2002 is a non-speaking ; that both the impugned orders are violative of Articles 14 and 16 of the Constitution of India ; that every policy decision of the Government has to pass the test of Articles 14 and 16 of the Constitution of India ; that no opportunity of hearing had been given to the petitioner before passing the impugned orders ; that the impugned orders have been passed in patent violation of the principles of natural justice, equity, fair play and reasonableness, that before passing the order, the petitioner should have been taken into confidence ; that it is the fundamental rule that every citizen is protected against exercise of arbitrary authority by the State and the impugned orders are nullity in the eyes of law.
3. We have heard the learned counsel for the petitioner and the learned standing counsel for the opposite party at the admission stage at length.
4. Learned standing counsel for the respondents has opposed this writ petition on the ground that parties have entered into an agreement and the contract is non-statutory and the rights and liabilities of the parties to the contract ought to be governed by the terms of the contract and if the petitioner has any grievance against the so-called breach of contract, he can seek his remedy under the contract.
5. Learned counsel for the petitioner has submitted that the decision through orders dated 19.10.2002 and 31.3.2003, whereby the job work awarded in favour of the petitioner had been abruptly terminated without assigning any reason and without giving an opportunity of hearing, is arbitrary and violative of Article 14 of the Constitution of India and even if the rights and liabilities ought to be governed by the contract between the parties even then the respondent being the State, cannot be permitted to act arbitrarily without following the principle of natural justice. In support of his contention, the learned counsel for the petitioner has referred a number of decisions of the Hon'ble Supreme Court.
6. Learned counsel for the petitioner has referred Ramana Dayaram Shetty v. International Airport Authority of India and Ors., (1979) 3 SCC 489. It was a case where the finalisation of the tenders was challenged and it was held by the Hon'ble Supreme Court that relaxation of the standard of eligibility at the time of considering the tenders or applications will amount to a denial of opportunity to those who considered themselves ineligible and did not apply. So this is not a case in which there was any contract between the parties as in the instant case.
7. Learned counsel for the petitioner has further referred Tata Cellular v. Union of India. (1994) 6 SCC 651. In this case, the Hon'ble Supreme Court has laid down the scope of judicial review in the cases of Government contracts. It has been held that only the decision making process and not the merits of the decision itself is reviewable as court does not sit as appellate court while exercising power of review.
8. The petitioner's counsel has further referred Kumari Shrilekha Vidyarthi and Ors. v. State of U. P. and Ors., (1991) 1 SCC 212. It was a case where Government law officers were removed from their posts in mass and this removal of Government law officers was challenged. It was held by the Hon'ble Supreme Court that arbitrary State action against the persons holding post of public nature is sufficient to attract the power of judicial review for contesting validity of the action on the anvil of Article 14.
9. Further learned counsel for the petitioner has referred L.I.C. of India and Anr. v. Consumer Education and Research Centre, AIR 1995 SC 1811, in which the Hon'ble Supreme Court has held that the term policy by Life Insurance Corporation confining only to salaried class from Government, semi-Government or reputed commercial firms, is violative of Article 14.
10. Learned counsel for the petitioner has further relied on M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and Ors.. 1999 (3) AWC 2508 (SC) : (1999) 6 SCC 464. In this case, an agreement to construct a market in the public park between the Lucknow Municipal Corporation and a private party was challenged. There were two distinguished areas of challenge in that case : (i) the agreement is a fraud on power prime land has been given for a song by the Mahapalika, and (ii) construction is in contravention of the provision of law as contained in U. P. Urban Planning and Development Act, 1973. So this petition was decided by the Hon'ble Supreme Court after applying the doctrines of Public Trust and it was found that the corporation's act was unreasonable, arbitrary, unfair and in opposition to public policy, public interest and public trust doctrines.
11. The next case relied on by the petitioner is Verigamto Naveen v. Government of A. P. and Ors., (2001) 8 SCC 344. It was a case of termination of special lease granted under Mines and Minerals (Regulations and Development) Act, 1957 and this termination was challenged as illegal. The Hon'ble Supreme Court has held that it was a contract which is subject to terms of the statutory provisions. Therefore, it cannot be said that the matter falls purely in a contractual field. So it was a case of statutory contract.
12. Further reliance has been placed on Kailash Chand Sharma v. State of Rajasthan and Ors., (2002) 6 SCC 562. It was a case in which the weightage on the basis of place of residence in the recruitment of teachers in panchayat schools was challenged. It was held by the Hon'ble Supreme Court that such Circular of the Government containing policy decision must pass the test of Articles 14, 16 and 15 of the Constitution of India.
13. In Haji Abdul Shakoor & Co. v. Union of India and Ors., (2002) 9 SCC 760, relied on by the petitioner, it was a case where a class 'A' contract was converted into class 'B' contract by a non-speaking order and without affording the opportunity of being heard. The Hon'ble Supreme Court has held that the order affect civil rights of the appellant without affording it any opportunity of being heard, is violative of principles of natural justice and was arbitrary.
14. In Onkar Lal Bajaj and Ors. v. Union of India and Anr., (2003) 2 SCC 673, relied on by the petitioner, it was a case of mass cancellation of allotments of retail outlet dealerships and distributorship of petroleum products. This enmass cancellation order was passed on certain complaints and those selected on merits and those who were in the reserved category of different classes were also covered in the enmass cancellation of allotment orders. In view of these circumstances, it was held by the Hon'ble Supreme Court that clubbing of those against whom there was no allegation with the handful of those against whom there were allegations of political connections and patronage resulted in treating unequals as equals.
15. After hearing the learned counsel for the writ petitioner and in view of the decisions cited above, there is no quarrel about the principles laid down by the Supreme Court in those cases but the question remains to be seen is whether the legal propositions as laid down in the Supreme Court could be applied in the facts and circumstances of the present case. In our opinion, the facts of this case are that there is an agreement between the parties and if that agreement has been terminated or there is a breach of the agreement, then the parties have their rights and liabilities under that agreement only. In the instant case under judgment State Election Commission had decided to computerize the electoral rolls of the constituencies of 3 Tier Panchayats and Local Bodies and for that purpose, the contracts were awarded to the nine firms including the writ petitioner. Later on the State Election Commission reconsidered the earlier decision of getting the separate electoral list computerised and took a decision that the State Election Commission will adopt the electoral list got prepared by the Election Commission of India for the purposes of the elections in 3 Tier panchayats and the Local Bodies and by adopting the electoral rolls got prepared by the Election Commission of India, there will be a uniformity in the electoral list in the elections of Parliament, State Legislature, Panchayat and Local Bodies. In view of this changed decision, it was decided by the respondent State Election Commission that there is no utility of getting the computerisation of separate electoral lists for panchayat and local bodies completed and, therefore, the contracts were terminated because the State Election Commission did not find its utility to get this work completed because it will be a mere duplication. So this decision of the State Election Commission has been challenged. Parties have entered into an agreement which is on record.
16. Learned counsel for the respondent has relied on Radhakrishna Agarwal and Ors. v. State of Bihar and Ors.. (1977) 3 SCC 457. It was a case of cancellation of the list of 'sal seeds'. The petitioner raises the question of breach of contract and mala fides for the action taken as is in the instant case. The Hon'ble Supreme Court categorised such type of cases in which breaches of alleged obligations by the State or its agents can be set up and observed as follows :
"The types of cases in which breaches of alleged obligation by the State or its agents can be set up are three :
(a) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Article 299 of the Constitution.
Cases such as Union of India v. Anglo-Afgan Agencies, AIR 1968 SC 718 : (1968) 2 SCR 366 and Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council, (1970) 1 SCC 582 : (1970) 3 SCR 854 and Roberson v. Minister of Pensions. (1949) 1 KB 227, belong to this category where it could be held that public bodies or the State are as much bound as private individuals and public bodies or the State are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities.
(b) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State.
Cases belonging to this category are : K.N. Guruswamy v. State of Mysore, AIR 1954 SC 592 : (1955) 1 SCR 305 ; D.F.O. South Kheri v. Ram Sanehi Singh, (1971) 3 SCC 864 and Shree Krishna Gyanoday Sugar Ltd. v. State of Bihar, AIR 1975 Pat 123.
(c) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.
The present case falls under this category where questions of pure alleged breaches of contract are involved. No writ or order can be issued under Article 226 of the Constitution in such cases "to compel the authorities to remedy a breach of contract pure and simple."
The proposition that whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of a contract between the parties, there is a dealing between the State and the citizen which involves performance of "certain legal and public duties", is too wide to be acceptable. The remedy of Article 226 is not open for such complaints.
It is very much doubtful whether the doctrine of discrimination can at all be availed against the State's action purporting to be taken solely within the contractual field when no aspect of any statutory or constitutional obligation appears either from incontrovertible facts or applicable legal provisions.
17. It was further held as follows :
"It is true that Article 14 of the Constitution imports a limitation or imposes an obligation upon the State's executive power under Article 298 of the Constitution. All constitutional powers carry corresponding obligations with them. This is the rule of law which regulates the operation of organs of Government functioning under a Constitution.
But the discrimination complained of must be involved right at the threshold or at the time of entry into field of contract regarding consideration of person with whom the Government would contract. 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 field, 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."
18. In the instant case, under judgment, a contract entered into between the State Election Commission and the petitioner is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract. The petitioner alleges the breach of contract. The dispute whether there is or there is not a breach of contract should be determined by civil courts.
19. In view of the above, the writ petition has no force. Therefore, after hearing both the, parties, the writ petition is dismissed.