Calcutta High Court
Food Corporation Of India vs Anurag Properties Pvt. Ltd. And Anr. on 4 August, 2006
Equivalent citations: 2007(1)CHN1
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This mandamus appeal is at the instance of a respondent in a writ application and is directed against the order dated 10"' September, 2003 passed by a learned Single Judge of this Court thereby disposing of a writ application by directing the Zonal Magager of the present appellant to reconsider the prayer of the writ petitioner for enhancement of rent afresh in the light of the observations made in the body of the order.
2. The respondent No. 1/writ petitioner is the owner of a building and in a part thereof, the present appellant is a premises-tenant. The tenancy was created in the early seventies by the predecessor-in-interest of the writ petitioner. After the writ petitioner became the owner of the property, the appellant accepted the writ petitioner as its landlord and started paying rent at the same rate. There was, however, no increase of rent from, the very induction and the writ petitioner made repeated requests to the present appellant for increasing the rate of rent of the tenanted portion in conformity with the rent paid by other tenants of the property. As the appellant did not increase the rate of rent, the writ petitioner, in the past, came up with another writ application therein praying for direction upon the present appellant to pay rent at the rate of Rs. 40/- per sq. ft. as according to it, the said rate was the prevailing letting-out-value in the locality. The said writ application was disposed of by a learned Single Judge of this Court thereby directing the Zonal Manager of the present appellant to consider the said writ application as a representation of the landlord and to dispose of the same by a reasoned order.
3. Pursuant to such direction given by the learned Single Judge, the Zonal Manager of the appellant by the order dated 29th March, 2003 disposed of the representation by holding that the existing rate of rent should be enhanced from the initial rent of Re. 1 per sq. ft. to Rs. 5/- per sq. ft. with effect from 1st February, 1999.
4. Being dissatisfied, the respondent No. 1 preferred a fresh writ application being W.P. No. 1163 of 2003 before the learned Single Judge thereby praying for setting aside the order dated 29"' March, 2003 and for a direction upon the present, appellant to pay rent at the rate of Rs. 40/- per sq. ft. as the existing rate of rent in that locality. The writ petitioner further prayed for a direction upon the appellant to release a sum of Rs. 69,47,766/- as arrears rent at the enhanced rate as mentioned in paragraph 16 of the writ application.
5. The aforesaid writ application was opposed by the present appellant and ultimately, a learned Single Judge of this Court by the order dated 10"' September, 2003 has allowed the writ application thereby setting aside the order dated 29"' March, 2003 and directing the Zonal Manager of the appellant to reconsider the matter afresh including the claim of the writ petitioner for enhancement of rent from the year 1972. The learned Single Judge expressed the desire that the authority should exercise its power properly and reasonably after taking into account the facts and circumstances prevailing at the moment while arriving at the rate. His Lordship further directed the Zonal Manager of the appellant to pass a reasoned order in accordance with law within a specified period.
6. Being dissatisfied, the tenant has come up with the present mandamus appeal.
7. Mr. Banerjee, the learned Senior Advocate appearing on behalf of the appellant, before entering into the merit, has advanced a pure question of law in support of this appeal. According to Mr Banerjee, admittedly, there being an existing relationship of landlord and tenant between the parties governed by the provision of West Bengal Premises Tenancy Act, the learned Single Judge erred in law in entertaining the writ application and directing the Zonal Manager of the tenant to assess the fair rent of the property which is within the exclusive domain of the Rent Controller (now Controller) mentioned in the West Bengal Premises Tenancy Act. Mr. Banerjee submits that his client, being a tenant in respect of a tenancy governed under the West Bengal Premises Tenancy Act, cannot be asked to assess the fair rent which is within the exclusive province of the Rent Controller. Mr. Banerjee submits that the writ application itself was a misconceived one and ought to have been dismissed. He, therefore, prays for setting aside the order passed by the learned Single Judge and allowing the appeal on the aforesaid ground alone.
8. Mr. Mitra, the learned senior Advocate appearing on behalf of the writ petitioner/respondent, has, however, opposed the aforesaid objection raised by Mr. Banerjee and has principally made two-fold submissions before us.
9. First, according to Mr. Mitra, in the past, the said learned Single Judge having passed a direction upon the Zonal Manager of the appellant to consider the prayer of the writ petitioner and the appellant having complied with such direction by assessing such amount without preferring any appeal against the order of the learned Single Judge is estopped from taking the plea of maintainability of the second writ application.
10. Secondly, Mr. Mitra contends that the appellant, admittedly, being a "State" within the meaning of Article 12 of the Constitution of India is bound to act rationally and not arbitrarily and therefore, notwithstanding the provisions contained in the West Bengal Premises Tenancy Act, a Writ Court has the right to pass direction upon the appellant to act reasonably in impartial manner thereby directing the appellant to pay fair rent which is usually paid by other Government agency as rent in respect of similar accommodation in the area. In other words, Mr. Mitra contends that the decision arrived at by the Zonal Manager of the appellant has infringed Article 14 of the Constitution of India.
11. In support of his contentions Mr. Mitra relies upon the following decisions:
(a) Madras Port Trust v. Hymanshu International .
(b) Satyadhyan Ghosal and Ors. v. Deorajin Devi and Anr. reported in AIR 1960 SC 941.
(c) Central Inland Water Transport Corporation Ltd. and Anr. v. Brojo Nath Ganguly and Anr. .
(d) Mahinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi .
(e) Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. .
(f) Kumari Shrilekha Vidyarthi v. State of U.P. and Ors. .
(g) B.L. Chakraborty v. State of W.B. and Ors. reported in 2005(12) SCC 148.
(h) Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. .
(i) ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. .
(j) IC of India and Anr. v. Consumer Education & Research Centre and Ors. .
(k) Union of India and Anr. v. B.C. Chaturvedi reported in 1995 (6) SCC 750.
(l) Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. .
(m) Cyril Lasrado (dead) by Lrs. and Ors. v. Juliana Maria Lasrado and Anr. .
(n) Centre for Public Interest Litigation and Anr. v. Union of India and Ors. .
(o) Sanchalakshri and Anr. v. Vijayakumar Raghuvirprasad Mehta and Anr. .
(p) C.M. Singh v. H.P. Krishi Vishva Vidyalaya and Ors. .
(q) United India Insurance Co. Ltd. v. Rajendra Singh and Ors. .
(r) Lee and Muihead (I) Pvt. Ltd. v. Board of Trustees for the Port of Calcutta and Ors. reported in 1992 (2) CLJ 9.
12. Therefore, the preliminary question that falls for determination in this mandamus appeal is whether a landlord of a premises where the tenancy is governed by the West Bengal Premises Tenancy Act can file a writ application against his tenant who is a statutory Corporation doing public utility services and can be termed as "State" within the meaning of Article 12 of the Constitution of India for the purpose of rendering its public-utility service, for a direction upon it to assess the fair rent of the property by itself and to pay the same to the landlord.
13. Before entering into such question, we must bear in mind that according to the provisions contained in West Bengal Premises Tenancy Act, 1956, under which the induction had taken place, if the tenant is the Government or statutory corporation, the tenancy will nevertheless come within the purview of the Act in case the property is situated within the area over which it has application. There is also no dispute that there was an unregistered agreement of tenancy entered into between the predecessor-in-interest of the writ petitioner and the appellant wherein the appellant agreed to increase the rate of rent at a regular interval at a specified rate which is inconsistent with the provision of the West Bengal Premises Tenancy Act, 1956, but it did not honour the same and that is the reason why the writ petitioner approached the appellant for increase of rent in terms of that agreement.
14. It is now settled law that if the landlord and tenant enter into any agreement as regards increase of rent during the subsistence of the tenancy under the provision of West Bengal Premises Tenancy Act, 1956, the same cannot be enforced, if the same is inconsistent with the provision contained in the said Act. It is also not in dispute that the rate of increase of rent agreed between the parties in this case was not in conformity with the provision of increase of fair rent mentioned in the West Bengal Premises Tenancy Act, 1956.
15. Therefore, the said clause of increase of rent at a regular interval was against the statutory provision of West Bengal Premises Tenancy Act, 1956, and was accordingly void.
16. Question is whether a Writ Court can permit a landlord to enforce a void contract simply because the tenant is a State within the meaning of the Article 12 of the Constitution of India. If by a regular suit, the same cannot be done, by taking recourse to Article 226 of the Constitution of India the same relief cannot be achieved simply because the defendant happened to be a State, for, a Writ Court cannot direct the State to comply with a void agreement.
17. The next question is whether a writ application is at all maintainable in the facts of the present case and whether the Food Corporation of India can be forced to assess fair rent of the premises where it is itself a tenant of the property.
18. As held by a Division Bench of this Court in the case of Ramington Rand v. Rajgheria, reported in 87 CWN 923, the West Bengal Premises Tenancy Act has given exclusive jurisdiction to the Rent Controller in the matter of fixation of fair rent. Even a Civil Court is not competent to decide such question. The Supreme Court has gone to the extent that such a duty to assess fair rent or increase of fair rent vested with a Controller or a Court, as the case may be, under different Rent Control legislations cannot be discharged by those authority simply on the basis of consent of the parties but must be adjudicated by the authority invested with such duty to assess by application of its mind on the basis of materials; otherwise, the decision on the question of assessment of fair rent would be a nullity See: Prithivi Chand v. Shinde and Dev Karan v. Monoharlal . Moreover, once an application for fixation or fair rent is disposed of by increasing the existing rent, according to the provisions contained in the West Bengal Premises Tenancy Act, such increase will take effect from the month next to the filing of the application for fixation of fair rent and not from a date anterior to it. In this case, the writ petitioner wants increase from 1972 which is not at all permissible under the law when no application has yet been filed before the appropriate forum.
19. From our aforesaid discussions, it is clear that the legislature has not permitted either the landlord or the tenant to fix fair rent of a premises or mode of increase of the fair rent according to their own agreement earlier made before commencement of tenancy unless agreed to and at the same time, accepted by both the parties. Even if, there was such agreement prior to commencement of tenancy, the tenant or the landlord is not bound by such agreement and if any of them is not agreeable to enhance the existing rent or wants to fix the fair rent, only remedy available to the aggrieved party is to approach before the Rent Controller. Even according to Section 4(3) of the West Bengal Premises Tenancy Act, 1956 any amount in excess of the fair rent is not recoverable by the landlord and such provision has been maintained in Section 13 of the new Act of 1997.
20. In the case of this nature, the writ petitioner cannot enforce the clause of the agreement providing increase of rent at a regular interval at a rate inconsistent with the provision of the statute during the subsistence of tenancy agreed to at the time of induction of the tenant by compelling the tenant to agree to such illegal term. Similarly, a Court also cannot pass a direction to the Zonal Manager of the tenant who was not even party to the writ application to consider the representation of enhancement of rent. The tenant, in the case before us, is a statutory corporation. Such corporation will take appropriate decision in accordance with the power conferred upon it by the statute and according to their Internal Management Rules.
21. Moreover, even in the matter of creation of tenancy as well as the terms of enhancement of the rent according to the provisions contained in the Transfer of Property Act, the agreement must be a bilateral one and as pointed out earlier, once a tenancy is continuing under the provisions of the West Bengal Premises Tenancy Act, in case of further change of rate of rent the parties are required to approach the Controller and even Civil Court's jurisdiction is excluded. In such a situation, in our view, the learned Single Judge erred in law in directing the Zonal Manager of the appellant to come to a conclusion and to force the appellant to agree to pay rent according to his determination.
22. Mr. Mitra in this connection strenuously contended before us that some other Government company and even the Government offices are paying at a higher rate of rent in that locality and they have also enhanced the rate of rent and therefore, in this case, by not enhancing the rate of rent, the appellant acted unreasonably thereby infringing Article 14 of the Constitution of India. According to Mr. Mitra, notwithstanding the provisions contained in West Bengal Premises Tenancy Act, if a State is a tenant, he is bound to comply with Article 14 of the Constitution and should pay at the same rate of rent which the other tenants are paying.
23. We are afraid we are not at all impressed by such submission. The lease being a contract belongs to the realm of private law; hence the Writ Court will not interfere with the terms of lease in the absence of violation of any Constitutional or statutory provision which attracts public law element.
24. In the case before us, the Food Corporation of India is no doubt a State in the matter of performing its duty created by the Statute itself; therefore, in order to attract Article 14 of the Constitution of India, the landlord must show that the appellant before us is not performing any of its statutory duty or is violating any statutory provision in exercise of such duty. We have already pointed out that the rate of enhancement of existing rent as prescribed in the West Bengal Premises Tenancy Act, 1956 by which the tenancy started did not allow the increase of rent at the rate agreed between the parties. Such being the position, we are not in a position to hold that the appellant in this case violated any statutory provision. Even if, we now ask the appellant to pay the enhanced rent in accordance with the agreed term, which is in violation of the provisions contained in the West Bengal Premises Tenancy Act, 1956, that will be a direction to act contrary to law which a Writ Court cannot do. We have already pointed out that the tenancy of a State is also governed by the provision contained in the West Bengal Premises Tenancy Act whereas if the Government is a landlord the said Act has no application. We are, therefore, unable to come to any conclusion that in this case the appellant being a State has violated any statutory law or acted unreasonably. The word 'unreasonably' or 'arbitrarily' means to act in a way which is not in accordance with the law or which is not just. The legislature having laid down a law that in a case of this nature, all disputes as regards enhancement of rent should be decided by the Controller, at the most, the appellant could pray for direction upon the appellant to approach the Rent Controller for enhancement but such course is not also available because the law has given such right also to the landlord. Therefore, the writ petitioner itself could approach the Rent Controller for fixation and increase of fair rent.
25. We do not find any reason why a citizen should refuse to approach the only available statutory forum for fixation of rent and should come before the High Court for compelling the State to agree to enhancement of rent at a different rate not prescribed by law.
26. We now propose to answer the other questions raised by Mr. Mitra, as regards applicability of the doctrine of res judicata in the fact of the present case. According to Mitra, in the previous writ application a learned Single Judge having passed a direction upon the Zonal Manager of the appellant to consider the representation and the appellant having accepted such order, he is precluded from questioning the maintainability of even the subsequent writ application.
27. After going through the previous decision of the learned Single Judge, we find that His Lordship merely directed the Zonal Manager to consider the writ application filed by the appellant as a representation and to consider the same by a reasoned order after giving opportunity of hearing to the writ petitioner. Since, the appellant did not prefer any appeal, the Zonal Manager of the appellant complied with such direction and has arrived at a conclusion. Now it is for the appellant a statutory corporation to lawfully decide whether the decision arrived at by its Zonal Manager should be adopted or not. But in the second writ application out of which the present appeal arises the writ petitioner wanted to dispute the correctness of the decision and his prayer was to direct the present appellant to pay at the rate of Rs. 40/- per sq. ft. which, in our view, is illegal. Therefore, notwithstanding the fact that the result of the earlier writ application was accepted by the appellant that does not mean that the appellant was precluded from raising a question whether the decision arrived at by its Zonal Manager can be challenged by a subsequent writ application. In the earlier writ application, His Lordship kept all questions open and the maintainability of the writ application was not at all decided. Therefore, the doctrine of res judicata cannot be attracted in the present case.
28. We now propose to deal with the decisions cited by Mr. Mitra.
29. In the case of Mahinder Singh Gill v. Chief Election Commissioner, New Delhi , it was held by the Supreme Court that when a statutory functionary makes an order passed on certain grounds, its validity must be judged by the reason so mentioned and cannot be supplemented by fresh reason in the shape of affidavit or otherwise; otherwise, the Supreme Court proceeded, an order bad in the beginning, may by the time it comes to Court on account of a challenge, get validated by the additional grounds later brought out.
30. By relying upon the aforesaid decision, Mr. Mitra tried to convince us that in this appeal we will only consider the reason assigned by the Zonal Manager and other point raised before us that it is for the Rent Controller to decide the question of fixation of the fair rent, cannot be taken into consideration while deciding the writ application. We are, however, not at all impressed by such submission. In the case before us, as pointed out earlier, in view of the order passed by a learned Single Judge in the previous writ application, the Zonal Manager disposed of the representation of the landlord but the question before us is, first, whether such a decision can be challenged by filing a fresh writ application for its modification and secondly, whether the Writ Court can ask the tenant to pay the amount as would be found by the Writ Court on judicial scrutiny to be reasonable by way of mandamus at the instance of the landlord. We have already pointed out that the landlord wants for a direction upon the Food Corporation of India to agree at a rate of Rs. 40/- per sq. ft. as rent and on such a writ application, the learned Single Judge gave direction for reconsideration of the decision on the basis of the observation made in the order. In our view, the appellant is not precluded from raising a pure question of law as regards enforcement of even the decision of its Zonal Manager at the instance of landlord in a subsequent writ application when landlord is dissatisfied with such decision. If a Writ Court finds that no purpose will be served by giving direction upon the Zonal Manager to adjudicate afresh because of the fact that such decision cannot even be enforced, it should not pass any direction for fresh adjudication but should direct the landlord to approach the appropriate forum prescribed by law. We, thus, find that the said decision is of no assistance to Mr. Mitra.
31. In the case of Centre for Public Interest Litigation and Anr. v. Union of India and Ors. , while considering a case of Government contract, the Supreme Court was of the view that the Court should not normally go into various factors involving commercial or technical prudence. According to the Apex Court if the allegations regarding unreasonableness, mala fides and co-lateral considerations are unassailable, the Court cannot hold that the contract was prima facie or otherwise, vitiated. It was further held that where the matter involved required commercial or technical prudence, the Court cannot assess fairness or reasonableness of the price-fixation and it can only be assailed on a finding of mala fide or extraneous consideration.
32. We fail to appreciate how the said decision can be of any help to Mr. Mitra's client where law does not permit any of the parties to the tenancy to compel the other to fix the rate of rent once the tenancy has commenced under the provisions of the West Bengal Premises Tenancy Act.
33. In the case of B.L. Chakraborty v. State of West Bengal and Ors. reported in 2005(12) SCC 148, there was a dispute between the parties relating to fixation of rent and consequently, the quantum of arrears. The further question was whether the arrears were liable to be paid with interest. When such dispute came up before the learned Single Judge hearing the same in exercise of the writ jurisdiction of High Court, the learned Single Judge formed an opinion that dispute arose out of contract and also required evidence for settling the disputed questions of fact and therefore, refused to allow any relief to the appellant. The order of the learned Single Judge had been upheld by the Division Bench and feeling aggrieved, the appellant went up before the Supreme Court by special leave. In such a situation, the Supreme Court after taking into consideration the submissions of the learned Counsel for the parties were satisfied that for ends of justice the matter should be remitted to the learned Single Judge for hearing and decision on merits. It was not disputed that the respondent No. 2, the National Textile Corporation, was a State within the meaning of Article 12 of the Constitution and without going into the technicality whether a dispute originating from contract could be heard and decided in exercise of writ jurisdiction, primarily with a view to put an end to a long pending dispute, the Supreme Court deemed it proper that the matter should be determined finally by the High Court.
34. Therefore, the said decision was given by the Supreme Court in exercise of power under Article 142 of the Constitution of India and as such, cannot be relied upon as a precedent as the Supreme Court did not lay down a proposition of law as to whether such writ application was maintainable; moreover, it did not appear from the judgment in the said case, whether the tenancy involved there was one governed by the Transfer of Property Act or one under the Rent Control legislation where there is specific restriction for settling the dispute as regards enhancement of rent during the subsistence of tenancy except by way of application before a Rent Controller. The said decision, thus, does not help Mr. Mitra's client in any way.
35. In the case of B.C. Chaturvedi v. Union of India , Hansaria, J. while concurring with the majority view opined that although there is no provision parallel to Article 142 relating to High Court, that fact does not mean that the High Court cannot do complete justice and if by moulding of relief would do complete justice between the parties, the same cannot be ordered. By relying upon the said observation of Hansaria J., Mr. Mitra tried to convince us that even though there is no provision similar to Article 142 of the Constitution of India giving power to High Court to do complete justice, this Court can also for doing complete justice between the parties pass an order though it does not strictly come within the purview of law. It appears that the aforesaid observation of Hansaria J., is in conflict with the two subsequent decisions of the Supreme Court, one in the case of Sanchalakshri v. Vijayakumar Raghuvir Prasad Mehta and the other, in the case of C.M. Singh v. H.P. Krishi Vishva Vidyalaya and Ors. . We are, therefore, unable to accept the contention of Mr. Mitra that by invoking power similar to one prescribed in Article 142 of the Constitution of India, we can ignore the statutory provisions contained in the West Bengal Premises Tenancy Act regarding fixation of fair rent or increase of existing rent an enforce an unlawful and void contract which is in conflict with the said Act.
36. In the case of Satyadhyan Ghosal and Ors. v. Deorajin Devi & Anr. , the Supreme Court held that the principle of res judicata applies also as between the two stages in the same litigation to this extent that a Court whether the Trial Court or a higher forum having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceding. In the said case, it was further held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay but an appeal was not taken can be challenged in an appeal from the final decree or order. The Supreme Court took note of the special provision contained in Section 105(2) of Civil Procedure Code as regards order of remand. But in spite of the fact that even under Section 105(2), the correctness of an order of remand can be challenged in appeal from the final decision provided the order of remand is not appealable, the Supreme Court held that Section 105(2) did not apply to the Privy Council and can have no application to appeals to the Supreme Court, one reason being that no appeal lay to the Privy Council or lies to the Supreme Court against an order of remand. By relying upon the said decision, Mr. Mitra tried to convince us that no appeal having been taken against the decision of the learned Single Judge in the earlier writ application, the question of maintainability cannot be raised, in the subsequent writ application. We have already explained earlier that in the previous writ application no issue was decided and all questions were kept open and as such, the said decision cannot stand in the way of the present appellant in disputing the maintainability of the second writ application for compelling the appellant to pay rent at a particular rate. We, thus, find that the said decision is of no avail to Mr. Mitra's client.
37. In the case of ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India Ltd. and Ors. , all that has been held is that a writ petition involving serious disputed question of fact which requires consideration of evidence and which is not on record will not normally be entertained by Court in exercise of its jurisdiction under Article 226 of the Constitution but there is no absolute rule that in all cases involving the disputed question of fact the parties should be relegated to a civil suit. It has even been held that in a writ petition, if the facts require, oral evidence can also be taken. According to the Supreme Court in an appropriate case the Writ Court has the jurisdiction to entertain a writ application involving the disputed question of fact and there is no absolute bar in regard thereto even if the same arises out of a contractual obligation and involves some disputed question of fact. In the said case, the Export Credit Guarantee Corporation of India Ltd. was statutorily running the business of insurance and exercise of its statutory function committed certain illegality. In such a case, the Supreme Court made the aforesaid observation. In the case before us, the F.C.I. is a statutory corporation created by statute for the purpose of distribution of food supply to the public and the present dispute is not in exercise of its power conferred under statute for doing such public duty. Therefore, in the fact of the present case the principle laid down in the case of ABL International (supra), cannot have any application.
38. In the case of Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani and Ors. , it was held that Article 226 confers wide powers on High Court to issue orders in the nature of prerogative writs. According to the Supreme Court, there is a striking departure from the English Law and under Article 226, the writs can be issued to any person or authority. The term "'authority" used in the context must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. According to the Supreme Court, Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words "any person or authority" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. According to the Apex Court, they may cover any other person or body performing public duty and the form of the body concerned is not very much relevant and what is relevant, the Supreme Court proceeded, is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the persons or authority to the affected party. No matter by what means the duty is imposed, the Apex Court continued, if a positive obligation exists, mandamus cannot be denied. We fully endorse the aforesaid view of the Supreme Court but in this case, there is no positive duty imposed upon the Food Corporation of India to increase the existing rent. The landlord ought to have applied before the Controller for fixation of fair rent because such right is conferred by the statute itself upon the landlord also. Therefore, in the present case, the principle laid down in the said decision cannot have any application.
39. In the case of Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors. reported in 2003 (2) Supreme Court Cases 107, it was held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion and in appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of a statute is challenged. In the case before us, the said principle cannot have any application for the simple reason that no positive duty is cast upon a State-tenant to increase rate of rent at a rate agreed to between the parties at the time of induction which is in conflict with the statutory law. Therefore, the State-appellant is under no obligation to decide the proposal given by the appellant for enhancement of rent when law provides that even if any agreement is arrived at but not implemented, the same cannot be enforced, being a nullity. Therefore, this is not a case of mere existence of alternative remedy but a case where the State-appellant has no duty cast upon it to perform nor is there any violation of its duty. The said decision is, thus, of no avail to Mr. Mitra's client.
40. In the case of L.I.C. of India and Anr. v. Consumer Education and Research Centre and Ors. , it has been held that the action of the State instrumentality or public authority having public element must be just, fair and reasonable and in the public interest and in consonance with the Constitutional conscience and socioeconomic justice. In the said case, it was held that while 1 I C was entitled to evolve policies on business principles, it could not restrict the policy to a class of persons only thereby denying others its benefits. In the case before us, the F C I as a statutory corporation has no public duty to give proposal to a landlord under whom it is holding as a tenant offering increase of fair rent, as that arises out of a non-statutory contract and that the appropriate remedy is also provided under the law. Thus, the said decision cannot help Mr. Mitra's client in any way.
41. In the case of Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. , it was held that the post of District Government Counsel was not purely contractual but public element was attached to it and hence, in case of arbitrary, unreasonable or irrational state-action, namely, termination of appointment of a District Government Counsel without any reason, the Article 14 was attracted. In our view, the principle laid down in that case cannot have any application to the facts of the present case for the reason we have repeated earlier.
42. Central Inland Water Transport Corporation Ltd. and Anr. v. Brajo Nath Ganguly and Anr. , is a case where it was held that if there was an instrumentality or agency of the State which assumed the grab of a Government company as defined in Section 617 of the Companies Act, it did not follow that it thereby cased to be an instrumentality or agency of the State. For the purpose of Article 12, the Court proceeded, one must necessarily see through the corporate veil to ascertain whether behind that veil is the face of instrumentality or agency of the State. According to the Supreme Court, the Central Inland Water Transport Corporation squarely fell within those observations and it also satisfied the various tests which had been laid down. Merely because it had that far not the monopoly of Inland Water transportation, was not sufficient to divest it of its character of an instrumentality or agency of the State. According to the Apex Court it was nothing but the Government parting behind the corporate veil, carrying out a Governmental activity and Governmental functions of vital public importance. In the case before us, there is no dispute that F.C.I in the matter of its statutory obligation is definitely a State within the meaning of Article 12 of the Constitution of India. But in the matter of performing its obligation as a tenant, it must be governed by the provisions contained in the West Bengal Premises Tenancy Act. There is no allegation by the writ petitioner that it has violated any of the lawful terms of a binding contract. All that is alleged is that some void terms of the contract were not given effect to. Therefore, the F.C.I, as a tenant has so far not violated any of its obligations as a tenant imposed under the provision of the West Bengal Premises Tenancy Act. If in spite of fixation of fair rent by the competent authority, it failed to perform its duty by not complying with such direction, the landlord could enforce such obligation by filing a writ application alleging improper or arbitrary action on the part of State in not following the binding decision. Such is not the case before us and in the present case, we have already pointed out that even if any agreed rent was arrived at, ultimately if any of the parties does not agree to pay at the said rate, the same cannot be enforced. The said decision, thus, has no application to the fact of the present case.
43. In the case of L. Hriday Narayan v. Income-Tax Officer, Bareilly , the Supreme Court pointed out that alternative remedy is not an absolute bar and the plea of existence of alternative remedy is not available once High Court has entertained a petition and has given hearing on merit. By relying upon the aforesaid decision, Mr. Mitra contended that in this case the existence of alternative remedy is not a bar. We have already pointed out that not only the existence of alternative remedy but in the absence of any allegation against the F.C.I., in the matter of not doing any positive duty enjoined upon it in the matter of acting as a tenant, this Court cannot entertain a writ application.
44. In the case of Madras Port Trust v. Hymanshu International , after suffering a decree of Rs. 4838.87p. for refund of wharfage, demurrage and transit charges, a plea was taken that such recovery was barred by Section 110 of the Madras Port Trust Act. The Supreme Court in exercise of discretion under Article 136 of the Constitution decided to revoke the special leave earlier granted on the ground that the plea of limitation at the instance of a public authority is always taken with disfavour and in all morality and justice, to take up such plea to defeat just claim of citizen should not be encouraged. The Supreme Court observed that it was a high time that the Government and the public authority should adopt the practice of not relying upon such technical plea for the purpose of defeating legitimate claim of citizen and the Supreme Court further hastened to add that the Government or the public authority if takes up a technical plea and if the plea is well-founded, it should however be upheld by the Court. In the said decision the Supreme Court as a proposition of law never held that the plea of limitation is not available to the Government. Moreover, in this case, the appellant has not taken the plea of limitation. However, in a subsequent case, the Supreme Court in the case of Vinod Bihari Singh v. Union of India observed that it might not be desirable for the Government or the public authority to take shelter under the plea of limitation to defeat a just claim of a citizen, but if a claim is barred by limitation and such plea is raised specifically, the Court cannot straightaway dismiss the plea simply on the score that such plea is ignoble. The bar of limitation, the Supreme Court held, may be considered even if such plea had not been specifically raised and that the Limitation Act is a statute of repose and bar of a cause of action in the Court of Law which is otherwise lawful and valid because of undesirable lapse of time as contained in the Limitation Act has been made on a well-accepted principle of jurisprudence and public policy. In a further subsequent decision, in the case of Mewa Ram and Ors. v. State of Haryana , the Supreme Court held that the observation of the Supreme Court in the case of Madras Port Trust (supra), was a mere expression of a hope and did not lay down any universal rule of application that the Government was prevented from pleading limitation as a bar. We are, therefore, not impressed by the aforesaid contention of Mr. Mitra.
45. In the case Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. , the Supreme Court was considering the duty of a State while acting as landlord in a situation where the legislature has exempted them from the operation of Rent Control Legislation. In such a context, the Supreme Court held that the State and its instrumentalities as the landlord definitely have the liberty of revising the rate of rent so as to compensate themselves against loss caused by inflationary tendencies and that they can also save themselves from the negative balance caused by the cost of maintenance, payment of taxes and costs of administration and the State, as the landlord, need not necessarily be a benevolent and good charitable Samaritan. The felt need for expending or stimulating its own activities or other activities in the public interest having once arisen, the State need not hold its hands from seeking eviction of its lessee; however, the Supreme Court held, the State cannot be seen to be indulging in rack-renting, profiteering or indulging in whimsical or unreasonable eviction or bargains and in such a situation, although, liberty has been given, the State by the statute enacted under the Constitution, did not get exemption from honouring the Constitution itself and they continued to be ruled by Article 14. In our view, in the said decision, the Supreme Court has laid down as a proposition of law that even though a State has been favoured by exempting it from the Rent Control Legislation where it is landlord, it should resist itself from acting in a whimsical manner simply because they have been exempted from the operation of the Rent Control Legislation and they should act reasonably. The said decision, in our opinion, has no application to a case where the Rent Control Legislation is applicable and the State is a tenant governed by it. In such a situation, unless State violates the statutory enactments governing the tenancy, its activity cannot be said to be unreasonable. We, thus, find that the said decision cannot authorise Mr. Mitra's client to contend that notwithstanding the provisions contained in the West Bengal Premises Tenancy Act, if instrumentalities of a State is a tenant, they should themselves enhance the rent though the landlord has not applied before appropriate authority for enhancement.
46. In the case of Cyril Lasrado and Ors. v. Juliana Maria Lasrado and Anr. (supra), the Supreme Court was dealing with a case where the writ petition was filed questioning, after a lapse of 19 years, a land Tribunal's order against a dead person. The delay was not explained and in spite of such fact, the writ petition was entertained by a Single Judge without issuing notice to the legal representatives of the deceased. The Single Judge took the view that since the matter had to be remitted to the Tribunal, no prejudice would be caused to the legal representatives, if they were not brought on record. The Single Judge also did not advert to the issue of unexplained delay in filing the petition. The Division Bench dismissed the appeal by merely observing that there was no error or illegality in the order of the Single Judge so as to call for interference and directed the Tribunal to hear the parties after giving them opportunity of hearing and to pass appropriate order. The Supreme Court, in such a case, held that both the learned Single Judge and the Division Bench were wrong and their orders were vitiated by non-application of mind. In our view, the said decision cannot have any application to the fact of the present case where the question is whether a writ application can at all be entertained for directing an instrumentality of a State in the matter of non-statutory contract to do something which it is not obliged to do under law.
47. In the case of Lee and Muihead v. Port Trust (supra), a learned Single Judge was dealing with a writ application filed by a licensee under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 who complained that although in the year 1982, a notice under Section 4 of the Act was served, the landlord abandoned the said notice and accepted the rental from the writ petitioner but suddenly, in the year 1987, again gave a notice by describing the petitioner as unauthorised occupant and sought to evict the petitioner. According to the petitioner, the action of the Port Trust Authority was arbitrary and violated Article 14 of the Constitution of India. The learned Single Judge accepted the contention of the petitioner as the Port Trust Authority failed to show sufficient cause for not pressing the earlier notice and the reason for issuing a fresh threat for eviction without any just reason. In our view, the Port Trust Authority having failed to assign any reason for branding the petitioner as unauthorised occupant though it was all along paying the licence-fees, His Lordship rightly quashed the notice. The principle laid down in that case cannot have any application to the present case where the Food Corporation of India has not violated any law and as such, it is not guilty of any arbitrary action as a tenant.
48. We, thus, find that the decisions cited by Mr. Mitra are of no avail to his client.
49. On the consideration of the entire materials on record, we, thus, set aside the order passed by the learned Single Judge and hold that in this case, as a tenant, the Food Corporation of India has not violated any of its obligations fixed by the statute and as such, a writ application cannot be maintained for the purpose of giving them a direction to pay rent at a rate of Rs. 40/- per sq. ft., when the law enjoins the duty of assessment of fair rent and increase thereof to the Rent Controller.
51. The appeal is, thus, allowed. Order impugned is set aside. In the facts and circumstances, there will be, however, no order as to costs.
Arun Kumar Bhattacharya, J.
52. I agree.