JUDGMENT M.C. Jain, J.
1. The petitioners seek a mandamus to command the respondents, (Varanasi Vikas Pradhikaran and its officers) to start the real construction of the multi-storied building in dispute and to allot the shops in the same to the members of the petitioner by handing over the vacant possession thereof.
2. The relevant facts may be stated briefly : There are 386 members of the petitioner which is a registered society. They were initially the tenants in the Redis Market, Dasaswamedh, Varanasi paying rent to Nagar Mahapalika. Varanasi for the respective shops under their tenancy. By sale deed dated 15.12.1988, the respondent No. 1 purchased the Redis Market from Nagar Mahapalika for reconstruction of a multi-storied building and business centre after getting the Redis Market demolished for which purpose the petitioner's members were tried to be forcibly evicted who filed Civil Misc. Writ No. 25016 of 1988 which was admitted on 22.12.1988 interim order was passed restraining the respondents from evicting the petitioners from the shops in dispute except in accordance with law. On 22.1.1990 the respondents entered into an agreement/contract/compromise with the petitioner society whereby it was agreed that the petitioners would vacate the market and in lieu thereof by way of temporary arrangement, the respondents shall give space at Rajendra Prasad Ghat, Dasaswamedh and as soon as the new multi-storied proposed marketing complex was completed, all of them would be rehabilitated by the allotment of shops there. It was also agreed that the construction and rehabilitation would take about 8-10 months from the date of start of construction and the petitioners would get their writ petition withdrawn. In pursuance thereof, the petitioners moved an application for withdrawing the writ petition on 27.1.1990 which was dismissed as withdrawn on 7.5.1990. The petitioners then voluntarily vacated the market within a week of 7.5.1990 and temporarily shifted their business to a market at Rajendra Prasad Ghat, Dasaswamedh over a very small piece of land measuring about 100 ft. x 200 ft. and the petitioners are earning their bread with great difficulty, each of them occupying space of about 8' x 8' having a temporary shed of asbestos sheet. Thereafter the Redis Market was immediately demolished in May, 1990 but no work of construction was started by the respondents. The petitioners made oral and written representations to the respondents whereafter they started digging the basement. The construction has not yet been completed, though two other projects have been completed within a span of one year. The delay on the part of the respondents is intentional and violative of Articles 14 and 16 of the Constitution of India. The necessity has, therefore, arisen to file the instant writ petition as the respondents are not fulfilling their part of obligation in terms of the agreement/compromise dated 22.1.1990 which is Annexure-2 to the writ petition.
3. The resistance from the side of the respondents is two-fold. The first and preliminary objection is that the present writ petition is barred by res Judicata and by Order II, Rule 2, C.P.C. because the earlier writ petition No. 25016 of 1988 was dismissed as withdrawn without reserving any right to file fresh writ petition. It is urged that the earlier writ petition contained the same prayer as is made in the present writ petition. The second ground of defence is that most of the shopkeepers did not vacate the premises as per agreement dated 22.1.1990 with the result that the shops which are still in their possession could not be demolished and consequently the new construction could not be started. Most of the shop-keepers are still in occupation and are causing hindrance in raising construction. Some of the shop-keepers have vacated the shops and those portions have been demolished and new construction has been raised, spending 145.51 lakhs of rupees. The meat/fish market covering an area of 800 square metres is still in the possession of the shop-keepers.
4. The submission from the side of the petitioners is that the defence is barred by promissory estoppel and the respondents cannot resile from the promise made in agreement/ compromise dated 22.1.1990. It is also submitted for the petitioners that the total area of the market was 2,700 sq. metres. The fish market was located at a corner over about 600 sq. metres. There were 100 such shops occupied by shop-holders. Over 300 sq, meters the Nirman Nigam constructed a godown for storing building material. Over 1,300 sq. metres only constructions were started. The rest of the land was left for passage, park, setback etc. When the fish/meat shops started shifting to the temporary site of Rajendra Prasad Ghat, there arose resentment and protest of general Hindu public, social workers and politicians based on religious grounds that meat and fish market would not be allowed to be shifted there. The respondents succumbed to the public pressure and persuaded the fish and meat sellers to continue their business at the present site. As such, they cannot be blamed for having not shifted to the temporary site at Rajendra Prasad Ghat.
5. The learned counsel for both the sides have been heard by us at length. To take up the first point of preliminary objection raised by the respondents about the maintainability of the present petition, we are of the considered opinion that the objection is not at all sustainable. It goes without saying that the cause of action means the bundle of facts whereupon the action is based. Obviously, the present writ petition is based on different cause of action, viz., the alleged breach committed by the respondents of the agreement/compromise entered into between the parties on 22.1.1990. The earlier Writ Petition No. 25016 of 1988 was based on different cause of action and it matters not that some relief in both the writs is the same. The test is to be based on the cause of action providing foundation for the earlier writ petition and the present one. The cause of action for the present writ petition being different, there is no question of its being barred by the principle of res judicata or by the provision or Order II, Rule 2, C.P.C.
6. Coming to the main point, the argument from the side of the petitioners, is that the respondents failed to discharge their obligation under the solemn undertaking given through the agreement/compromise dated 22.1.1990 to rehabilitate the members of the petitioner in the reconstructed multi-storied marketing complex proposed at the site of the existing market. The respondents cannot be permitted to resile back from the agreement in any manner. The respondents are 'State' within the meaning of Article 12 of the Constitution of India and a mandamus should be issued to protect the right of livelihood of the members of the petitioner as guaranteed under Article 21 of the Constitution of India. More than 3/4th of the area had already been demolished and constructions raised by the respondents without any allotment made to the members of the petitioner. Most of the shop-keepers vacated the market and shifted to the temporary sheds at Rajendra Prasad Ghat to facilitate construction. The continuance of some vendors on a very negligent small area of the marketing complex cannot be treated as breach of the agreement on the part of the members of the petitioners because of the compelling circumstances that because of public outcry and unrest, they could not shift to the temporary sheds at Rajendra Prasad Ghat and had to continue in Redis Market Area. The Nagar Mahapalika occupied the land which was earmarked for the fish and meat vendors at Rajendra Prasad Ghat by accommodating their office of Safai Vibhag. It is urged that the defence is barred by the principle of promissory estoppel. Reference has been made to the cases of Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd., AIR 1983 SC 848 : Century Spg. and Mfg. Co. v. Ujhasnagar Municipality, AIR 1971 SC 1021 ; Satrudhan Sahani v. State, AIR 1991 Pat 211 ; Shri Guru Singh Sabha v. Defence Colony Welfare Association. 1993 Supp. (1) SCC 666. The case of Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180, has been cited on the point that the right to life includes right to livelihood. Another case of M/s. Dabur, Deoghar Bihar v. Workmen. AIR 1968 SC 18, has also been cited from the side of the petitioners but it does not seem to have any relevance at all.
7. The counter argument from the side of the respondents is that the alleged rights of the petitioner are founded on the agreement dated 22.1.1990 which is not a statutory agreement and no writ can be issued for the enforcement of such private agreement. The matter does not at all involve the enforcement of any public rights. Moreover, the principle of promissory estoppel cannot be invoked as many of the members of the petitioner-society have not vacated the site to facilitate reconstruction and they are themselves guilty of not performing their part of the agreement whereupon depended the performance of respondents' part of the agreement. The construction could not be completed for his own fault of the petitioner's members and now the cost has become prohibitive.
8. It is obvious that both the parties are blaming each other for non-performance of Its part under the agreement dated 22.1.1990. It is, however, an admitted fact that some members of the petitioner-society have not vacated the Redis Market Area and are still continuing there. The matter Involves disputed and complicated questions of fact which can be resolved only on the basis of elaborate evidence, including of oral character, of the parties. The spot survey to ascertain the actual position obtaining at the spot is also required. Such questions are as to what is the actual area of the Redis Market : how much area has been vacated by the members of the petitioner-society by shifting to the temporary sheds at Rajendra Prasad Ghat ; how many shop-keepers are still continuing their business in Redis Market and in how much area ; how is the area occupied by such shop-keepers there is juxtaposed to the area vacated by other shopkeepers ; how much construction and in what area has been raised by the respondents ; what is the reason of some of the shop-keepers still continuing their business in Redis Market Area, or, in other words, of their not shifting to the temporary site at Rajendra Prasad Ghat ; whether the temporary area earmarked for such shop-keepers at Rajendra Prasad Ghat has actually been occupied by the Nagar Mahapalika by accommodating their office of Safai Vibhag ; whether it is possible to provide suitable alternative temporary accommodation to the shop-keepers still continuing in the Redis Market Area so that they could shift there and vacate the Redis Market Area to facilitate the completion of construction of marketing complex there ; whether it is possible to allot the shops tn partly constructed marketing complex in Redis Market Area in phases to those shop-keepers who have shifted temporarily to Rajendra Prasad Ghat ; whether some more space is available at Rajendra Prasad Ghat for the shop keepers still continuing in Redis Market Area and as to whether it is possible to shift those shop-keepers temporarily there. We are of the opinion that such complicated and disputed questions of fact as are involved in this case cannot conveniently be gone into and decided in extraordinary writ jurisdiction of Article 226 of the Constitution of India. The answer to these questions can only be found out after putting to judicial scale the relevant evidence of the parties touching the different aspects of the matter, offering guidance to the main question as to what relief can possibly and legally be granted in favour of the petitioner.
9. The question of the application of principle of promissory estoppel can arise only after it is found that actually the respondents have committed the breach of agreement/compromise dated 22.1.1990 and they alone are to be blamed for it without any fault whatsoever on the part of the members of the petitioner-society. It is, in fact, a case of the alleged breach of the agreement/compromise dated 22.1.1990 and having regard to what has been stated in the preceding paragraph, the only and proper remedy for the petitioner is by way of a civil suit where all the relevant complicated and disputed questions of fact, made mention of above, may be tried and resolved on the basis of scrutiny of the evidence of the parties.
10. In the above background, we do not find it to be a fit case for the exercise of the extraordinary discretionary writ jurisdiction under Article 226 of the Constitution of India. We refrain from making any other observation, lest it may be prejudicial to one or other party at the trial of the suit, if one is eventually filed. We, accordingly, dismiss the writ petition, but do not make any order as to costs under the facts and circumstances of the case.