Mahammad Hanif vs The State of Assam and Another

C.P. Sinha, C.J.—This case was placed before me for hearing difference between Deka and Mehrotra, JJ.

The question raised in this case is when a resumption of a leasehold by the State of As purporting to act under the provisions of the (sic) itself is remediable under the provisions of Article 226 of the Constitution.

The facts have been dealt with elaborately in the judgment of Mr. Justice Mehrotra and I desire to state only a few of'' them just to make the judgment understandable. The Secretary of State for India-in-Council settled with one Captain E. N. Manley, 4.777 acres of land for ninety nine years on a premium of Rs. 716-8-9 on an annual revenue of Rs. 35-13-3 by document dated the 1st of April, 1907 and this document was signed by the Deputy Commissioner, United Khasi and Jaintia Hills, Shillong, on behalf of the lessor, the Secretary of State for India-in-Council.

On the 18th March, 1909, the land which is the subject-matter of the lease was purchased by Messrs. Jummatollah and Sons and the name of the purchaser was mutated in the land records. The petitioner, Mahammad. Hanif is alleged to be the owner of the land by inheritance, and he resides in one of the houses within the holding. Two other houses, within the same holding contiguous to one Anr. after the residential house of the petitioner are situated there within the holding. One of those houses is known as "Cryptomaria" and the other as "Cedar Lodge."

This house in question "Cryptomaria", which will hereafter be referred to as the house, was leased to the Government of Assam in May, 1957 at a rental of Rs. 450/- per month in which one of the Ministers of the State of Assam resided. According to the petitioner, the Minister was still in occupation, when this application was made. On the 20th March, 1959, the Deputy Commissioner, Unit-ed Khasi and Jaintia Hills, requisitioned this house by an order for accommodation of the said Minister.

Against that order of requisition, an appeal was preferred and on the 19th August, 1959, the Government set aside that order of requisition and on the following 18th September, the Deputy Commissioned served Anr. notice on the petitioner stating that he would take possession of the house, as ordered by the Government, with the land and building thereon and it is this order of the Government, which is challenged by this petition. The order of resumption was communicated to the petitioner by the Deputy Commissioner on the 18th September last in the following terms:

I am to forward herewith a copy of order of the Government of Assam for resumption of the Cryptomaria'' property for public purpose and to state that as ordered therein, possession of the land along with buildings and improvements made there on, if any, will be taken over by me on the expiry of the period of 7 (seven) days from the date of receipt of this notice.

The order of the Government dated the 8th Sept-ember, 1959, states that the Governor was satisfied that it was necessary to resume the plot of land under the provisions of Clause V of the deed of please for a public purpose, namely, for providing suitable accommodation to Ministers, Government servants and ''Government offices; and it was further stated in the Government order that "providing suit-able accommodation to Ministers. Government servants and Government offices" constituted a public purpose and by the said order, the Deputy Commissioner was directed to forthwith take necessary steps to re-enter upon the said land on giving seven days notice in writing and take possession thereof along with all buildings and improvements made thereon, by the lessee, if any, and thereafter pay the lessee compensation as may be due in resumption proceedings. To appreciate the point involved, clause V of the lease should be quoted:

If the site, or any part of it, is required for public purposes (including the maintenance or alteration of public aqueducts), it may be resumed by Government. In this case, the lessee will be entitled to receive such compensation, calculated according to the spirit of the Land Acquisition Act, as fairly represents :he actual value of the land and the buildings upon it. The amount of the compensation shall be determined by the Deputy Commissioner, subject to an appeal to the Com missioner.

The Hon''ble Mr. Justice Mehrotra held that the petition should be allowed and a writ should issue prohibiting the opposite parties from interfering with the right of the petitioner as a lessee under the Government order dated the 8th September, 1959, conveyed to the petitioner by the letter dated the 18th September, 1959 by the Deputy Commissioner, United Khasi and Jaintia Hills. Shillong and further directed that the said order be not given effect to.

The Hon''ble Mr. Justice Deka, however, was of the opinion that the Rule should be discharged for the reason that the Government was by the aforesaid order merely enforcing its right of resumption given to them by the lease itself and further held that the right between the parties arose only on the basis of the contract entered into in the lease and therefore, resumption even if illegal only amounted to an illegal exercise of the right created under a contract and they could be dealt with in a Civil Court at the instance of either of the parties.

When the matter came before me, it was argued that under the provisions of Clause 36 of the Letters Patent of the Calcutta High Court, which admittedly applied to this Court, in case of difference between two Judges, the points of difference should have been referred to the third Judge. I accepted that contention and sent back the case to the two Hon''ble Judges, who had differed, to enable them to formulate the points of difference on which this Court of tire third Judge was to give its opinion. Accordingly, their Lordships have for mulated the following points of difference:

Should or should not this Court exercise its powers under Article 226 of the Constitution in cases where the State Government purports to exercise its power of resumption alleged to be given under the terms of the lease.

Is the right conferred on the petitioner under the terms of the lease a fundamental right to property?

Whether the Government can resume the lands without bringing a suit for the purpose?

Whether in view of the circumstances mentioned above, it is a fit case where any writ should be issued by the Court as prayed for?"

I have heard the parties at length and have given respectful consideration to the views of the Hon''ble Judges of this Court, who have differed. Under Article 298 of the Constitution, the executive power of the Union and of the States extends to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contract for any purpose and therefore, the State or the Union, as the case may be, can acquire and hold property and enter into contracts as any individual.

In the present case, for the purpose of the present petition, there is no disagreement between the parties that although the lease was given by the Secretary of State for India-in-Council, the State of Assam, is deemed to be the lessor. Now once that question is settled, the further question that arises is whether, if in terms of the lease one of the two parties to the lease, namely the lessor and the lessee, takes action, such action if taken by the lessor, namely, the State Government, is subject to the writ jurisdiction of this Court as provided for in. Article 226 of the Constitution.

The answer to this question, in my opinion, must be in the negative. We have seen that under clause V of the lease, a right is given to the lessor to resume the land subject to lease or any part of it, if it is "required for public purposes" and the lessee in such a contingency is entitled to receive such compensation calculated according to the spirit of the Land Acquisition Act, as fairly represents the actual value of the land and the buildings upon it", and this amount of compensation has to be determined by the Deputy Commissioner subject to the right of appeal to the Commissioner. In my opinion, if the lessor purports to take advantage of any of the rights given to him under the lease, that right cannot be subjected to the provisions of Article 226 of the Constitution, inasmuch as the rights which the State exercises in this case spring from contractual obligations as per the lease mentioned above. Whether the resumption is for a public purpose or not is a different matter.

But, according to the order of the State Government mentioned above, the resumption has been made on the ground that a public purpose mentioned in the Government order existed and for that public purpose, this land in question was requisitioned.

Therefore, all that has been done by the State Government (Opposite Party) is covered by or supposed to be covered by the terms of the deed of lease itself. Though the powers given to thus Court under Article 226 of the Constitution are very wide, but they are to be exercised for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose. But, in spite of the wide powers possessed by this Court, to my opinion, where the question posed is referable to any contract between the parties, that matter must be litigated in the ordinary Civil Courts and not before this Court.

The learned Counsel in support of the application submits that the right obtained by the petitioner or his predecessor-in-interest was the right of a lessee and the right of lessee is property and of the petitioner has a property right, that property right of the petitioner could not be taken away by the State, and even though the State Government may have been acting as the lessor, the order of'' the Deputy Commissioner threatening the petitioner-that he would take possession of the land, though in pursuance of the order of the Government, was passed in his executive capacity and the. Deputy Commissioner cannot be said to be acting under the authority of law.

In my opinion, this submission of Dr. Medhi is fallacious. In the present case, the right of a lessee, namely, the petitioner, must be held to be a right of property and one of the fundamental rights under the Constitution, but merely because it is a right of property, the provisions of Article 226 of the Constitution are not attracted for the simple reason that this particular right of the petitioner is not affected or taken away by the State Government exercising its power of sovereignty, or in other words, the right of Eminent Domain.

What the State Government is doing is that it is merely exercising its right under the lease which provided for resumption under certain circumstances, and the Deputy Commissioner is merely acting as the agent of the said State Government and the lease itself provided, that (ho Deputy Commissioner shall determine the compensation for the lands resumed and if the Deputy Commissioner is acting under the order of the State Government, the lessor, it cannot be said that he is acting in his executive capacity. In the second place, Dr. Medhi submits that the State Government in terminating a'' contract or in enforcing its rights under the contract summarily, cannot be said to be acting by the authority of law.

This submission is likewise faulty for the same reason as mentioned above. If the State Government is exercising its right of sovereignty then certainly, the petitioner whose fundamental rights of property are being invaded has a right to come to this Court under the provisions of Article 226 of the Constitution;. But, if on the other hand, the State Government is acting as a lessor under a contract, then the State Government stands on the same footing as any private lessor and this Court cannot possibly interfere with the rights of two individuals, even though that right may be the right of property.

In P.D. Shamdasani Vs. Central Bank of India Ltd., it was held that the violation of rights of property by a private individual is not within the purview off Articles 19(1)(f) and 31 (1) of the Constitution and in such a case, the remedy, if any, lies under the ordinary law and not under the provisions of Article 226 of the Constitution. In this case, in my opinion, the rights of the State Government are on the same footing as the right of any private individual as in this case the State Government is acting as a lessor, exercising its rights under the lease the property had been taken possession of by him on 1-5-1952.

Thereafter, certain correspondence was exchanged between the petitioner and the Government. The petitioner filed an application under Article 226 of the Constitution and alleged that the circumstances of the ease would clearly show that the whole proceedings regarding resumption of the property were mala fide and not according to law and had been taken with the ulterior motive of depriving the petitioner of his fundamental right to property and the petitioner also challenged the alleged public purpose mentioned by the Government in resuming the lands. After discussing a number of authorities and the submissions made on behalf of the parties, the Court observed as follows:

It is not denied that the petitioner has a remedy in the Civil Court for cancellation of the resumption as well as for compensation for damages that might have accrued to him because of taking over possession of the property without the issue of due notice to him, as alleged. It will not be possible, even if a writ be issued, to make over the property to the petitioner in the shape in which it was taken possession of by the State Government. Therefore, it is not possible to give an effective relief to the petitioner in the present case, assuming his case is justified.... It has been held by this Court that in cases where facts are disputed, it is not appropriate to issue writs under Article 226 of the Constitution, but the parties should be left to litigate about the respecive claims in a proper suit in a Civil Court.

With these observations, the application was dismissed and the rule was discharged. The facts of Civil Rule No. 131 are more in point. In this case, the Governor of Assam by his order dated 9th July, 1956 declared that he felt satisfied that it was necessary to resume a plot of land known as "Hayton Property" in sites Nos. "U" and "V" in Kench''s Trace, Shillong, measuring 4.39 acres, under the provisions of clause XI of the deed of lease dated 29th October, 1915, for accommodation of officers and the office assistants, which was a public purpose.

He, therefore, ordered resumption of the plot and directed the Deputy Commissioner to take necessary steps to re-enter upon the said land on giving a month''s notice in writing for taking possession thereof along with buildings and improvements made thereon by the lessee. He further directed payment of compensation to the lessee or his heirs as may he due according to the conditions of deed of: the lease.

The petitioner held the property and, being aggrieved by the said order; filed an application under Article 226 of the Constitution to enforce, what according to the petitioner were, his fundamental rights under Articles 14, 19(1)(f) and 31 of the Constitution of India. In this case also, there was a settlement of land by the Secretary of State for India-in-Council on the 29th October, 1915, with one Mr. George L Chisholm of Horgang Tea Estate, Barrang, in consideration of a Certain sum as premium for a period of 99 years and in course of time, the property came to be held by the petitioner.

The petitioner resided in a portion of the property with his family and he had given on rent two cottages and also half portion of his residential bungalow to Government officers. The property remained requisitioned for some time as it was used as a dak bungalow for the accommodation of Government Officers. It was later derequisitioned. It was again requisitioned for the accommodation of the Legal Remembrancer under the order of the Deputy Commissioner dated 25th February, 1956, and was taken possession of on 12th March, 1956 and handed over to the Legal Remembrancer.

It was again derequisitioned on 10th May, 1956. No rent was fixed at the time of the requisitioning and the question as to what rent should be paid had not been decided. The Legal Remembrancer, it was alleged, sent the petitioner a cheque of Rs. 120/- as rent which the petitioner refused to accept and the petitioner thought that his fuilure to settle the rent dispute with the Legal Remembrancer and his refusal to accept the cheque sent by the-Legal Remembrancer, had influenced the decision of the Government to resume the property.

The Deputy Commissioner in pursuance of the order of resumption intimated to the petitioner that he had taken possession of the land and the buildings. Condition No. XI of the lease permitted resumption of the property for public purpose as re-the present case, and in disposing of the matter, Ram Labhaya J., one of the Judges, who heard the case, observed as follows, with which the learned'' Chief Justice agreed --

It may be stated that any action which the Government takes under the conditions of the lease must be distinguished from acts in the exercise of the right of Eminent Domain. When the right of expropriation is exercised, the Government expropriates an owner. It acquires or takes possession of property which is owned by a citizen or in which he-has rights which may be described as property movable or immovable. In the present case, there was no-need for the Government to exercise its right of Eminent Domain. It still had ownership of the property. The petitioner was merely a lessee, The lease provides for its'' resumption under certain circumstances. The Government by resuming it were therefore merely enforcing a right which is accrued to them by the lease. It is therefore not Such acquisition or taking of possession to which Article 31 could by any stretch of imagination apply. The learned Counsel could not cite any authority holding that even when the Government was exercising its powers as a lessor under a condition of the lease, Article 31 could possibly be attracted�.

The petition arises out of a dispute as to the interpretation of the term of a contract between the parties. The petitioner is attempting either to enforce the contract or he is attempting to prevent a breach of it by the Government, on his own-interpretation. A writ of mandamus is not the appropriate relief in matter arising out of a contract. It is not a writ of right and may not be claimed as a matter of course. It is in the discretion of the court to issue it or not. Normally it would not be granted if there is an alternative remedy which is sufficient and equally convenient. On the other hand, if there is a public right or if the petitioner seeks the ''enforcement of a public duty for securing which there is no other remedy, the writ should vided by the exception in the old section, as it was found to be inadequate, while conferring certain compensating benefit on the purchaser. This amendment is in (sic) with the traditional tenancy legislation in this country affording relict to tenants whenever the tenancy laws were found due to changing conditions, to operate harshly on the tenantry. I find it difficult to hold that the) abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Articles 31(1) and (2)....

Here again, in my opinion, the decision arrived at in this case was on facts entirely different and no useful purpose will be served by examining the case in any detail.; In Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, their Lordships of the Supreme Court were considering the Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance (2 of 1950) and the Sholapur Spinning and Weaving Company (Emergency Provisions) Act (28 of 1950) and their validity, and it was held that

... the impugned ordinance authorises, in effect a deprivation of the property of the Company within the meaning of Article 31 without compensation and is not covered by the exception in Clause (5) (b) (ii) of that article. The Ordinance thus violates the fundamental right of the Company under Article 81(2) and the appellant as a preference share-holder who is now called upon to pay the moneys unpaid on his shares is entitled to impugn the constitutionality of the Ordinance.

The Supreme Court was, therefore, considering the validity of certain legislation affecting the rights of property of certain individuals and the other point of distinction was that the matter had gone up to the Supreme Court in a suit. There may be certain observations in this judgment of the Supreme Court, but in my opinion, those observations cannot be torn away from the context of the facts in which they were given, but broadly speaking, these cases did not'' involve consideration of the rights of properties under a lease or a contract. I have to make similar comments in regard to the case of Firm Chhotabhai Jethabai Patel and Co. and Others Vs. The State of Madhya Pradesh,

In this case, the petitioners had entered into contracts with the proprietors of certain estates and mahals within the State of Madhya Pradesh under which it was agreed that the petitioners had acquired the rights to pluck, collect and carry away tendu leaves and to cultivate, culture and acquire lac, and to cut and carry away teak and timber and miscellaneous species of trees, and the State of Madhya Pradesh had threatened; to interfere with their rights under the contracts by taking recourse to the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act (1, of (sic)951), and the Supreme Court issued directions under Article 32 of the Constitution prohibiting the State from interfering in any manner whatsoever with the enjoyment of those rights by the petitioners acquired under the contract. It is, in my opinion, obvious that in this case the State of Madhya Pradesh Government was net trying to interfere with the rights of the petitioners under any right reserved to it under a contact.

In my considered opinion, it would serve no useful purpose to refer to any other case in support of the contention raised by Dr. Media, because in none of those cases the points similar to the points in this case were involved. Ail those cases were entirely different on facts.

I would now desire to consider some of the cases of this Court and of other Courts in support of the submissions made by Mr. Advocate-General on behalf of the opposite party and in my view, the two cases of this Court namely, Subodh Chandra Bose v. State of Assam, Civil Rule No. 69 of 1954 decided by a Division bench of this Court on 27-1-1956 and Sankar Prasad Mukherjee v. State of Assam, Civil Rule No. 131 of 1956 decided by a Division Bench of this Court on the 5th December, 1956, clinch the issues for the reason that those decisions were given on more or less similar set of facts as in our present ease, and in my opinion, the decision in these two cases is of binding effect.

In Civil Rule No. 69 of 1954, the facts-were that the Secretary of State for India-in-Council settled 2.74 acres with a house on it known as "Inverneil" and situated in Kench''s Trace, Shillong, with one Mr. W. M. Stotesbury for a period of ninety nine years on 1-3-1911 on payment of a premium of Rs. 1,096/- and at a certain annual revenue. In October, 1919, the interest of the original lessee was transferred to Mrs. Mary Charlotte Payne and on 15-1-1920, the late Mr. A. C. Bose, Solicitor (father of the present petitioner Subodh Chandra Rose) purchased the said property together with the land and constructions standing thereon, and the purchaser extended the buildings and made certain improvements.

On the death of his father, the name of the petitioner was registered as owner of the property in May, 1940. The houses and buildings were mostly let out to Government servants. On 5-11-1951, the petitioner received a letter from the Additional Deputy Commissioner, Khasi and Jaintia Hills, Shillong; forwarding to him a copy of an order of the Government dated 18-10-1951 to the effect that the Government had decided to resume "Inverneil" property for a public purpose, namely, for accommodation of Government officials and offices, and informing him that the land, along with the buildings and the hutments thereon, would be taken possession of by the Government on the expiry of the period of one month, and asking the petitioner to submit within one month his claim for compensation.

Thereafter, the petitioner had made certain prayers and suggestions to the Government of Assam and by letter dated 3-1-1952, the Deputy Commissioner communicated to the petitioner the order of the Government dated 2-12-1951 rejecting the prayers and suggestions made by the petitioner. Thereafter, the petitioner received a letter from a Sub-Deputy Collector, for the Deputy Commissioner, stating that he would take possession of the property on 1-5-1952 at 10 A.M. The petitioner protested. Thereafter, on 10-5-1952, the Sub-Deputy Collector wrote to the Under-Secretary to the Government of Assam, informing the latter that the property had been taken possession of by him on 1-5-1952.

Thereafter, certain correspondence was exchanged between the petitioner and the Government. The petitioner filed an application under Article 226 of the Constitution and alleged that the '' circumstances of the case would clearly show that the whole proceedings regarding resumption of the property were mala fide and not according to law and had been taken with the ulterior motive of depriving the petitioner of his fundamental right to property and the petitioner also challenged the alleged public purpose mentioned by the Government in resuming the lands. After discussing a number of authorities and the submissions made on behalf of the parties, the Court observed as follows:

It is not denied that the petitioner has a remedy in the Civil Court for cancellation of the resumption as well as for compensation for damages that might have accrued to him because of taking over possession of the property without the issue of due notice to him, as alleged. It will not be possible, even if a writ be issued, to make over the property to the petitioner in the shape in which it was taken possession of by the State Government. Therefore, it is not possible to give an effective relief to the petitioner in the present case, assuming his case is justified. . . . It has been held by this Court that in cases where facts are disputed, it is not appropriate to issue writs under Article 226 of the Constitution, but the parties should be left to litigate about the respecive claims in a proper suit in a Civil Court.

With these observations, the application was dismissed and the rule was discharged. The facts of Civil Rule No. 131 are more in point. In this case, the Governor of Assam by his order dated 9th July, 1956 declared that he felt satisfied that it was necessary to resume a plot of land known as "Hay-ton Property" in sites Nos. "U" and "V" in Kench''s Trace, Shillong, measuring 4.39 acres, under the provisions of clause XI of the deed of lease dated 29th October, 1915, for accommodation of officers and the office assistants, which was a public purpose.

He, therefore, ordered resumption of the plot and directed the Deputy Commissioner to take necessary steps to re-enter upon the said land on giving a month''s notice in writing for taking possession thereof along with buildings and improvements made thereon by the lessee. He further directed payment of com-: pensation to the lessee or his heirs as may be due according to the conditions of deed of the lease.

The petitioner hold the property and, being aggrieved by the said order; filed an application under Article 226 of the Constitution to enforce, what according to the petitioner were, his fundamenal rights under Articles 14, 19(1)(f) and 31, of the Constitution of India. In this case also, there was a settlement of land by the Secretary of State for India-in-Council on the 29th October, 1915, with one Mr. George Chisholm of Horgang Tea Estate, Barrang, in consideration of a certain sum as premium for a period of 99 years and in course of time, the property came to beheld by the petitioner.

The petitioner resided in a portion of the property with his family and he had given on rent two cottages and also half portion of his residential-bungalow to Government officers. The property remained requisitioned for some time as it was used as a dak bungalow for the accommodation of Government Officers. It was later derequisitioned. It was again requisitioned for the accommodation of the Legal Remembrancer under the order of the Deputy Commissioner dated 25th February, 1956, and was taken possession of on 12th March, 1956 and handed over to the Legal Remembrancer.

It was again derequisitioned on 10th May, 1956. No rent was fixed at the time of the requisitioning and the question as to what rent should be paid had not been decided. The Legal Remembrancer, it was alleged, sent the petitioner a cheque of Rs. 120/- as rent which the petitioner refused to accept and the petitioner thought that his fuilure to settle the rent dispute with the Legal Remembrancer and his refusal to accept the cheque sent by the-Legal Remembrancer, had influenced, the decision of the Government to resume the property.

The Deputy Commissioner in pursuance of the order of resumption intimated to the petitioner that he had taken possession of the land and the buildings. Condition No. XI of the lease permitted resumption of the property for public purpose as in the present case, and in disposing of the matter, Ram Labhaya J., one of the Judges, who heard the case, observed as follows, with which the learned'' Chief Justice agreed --

It may be stated that any action which the Government takes under the conditions of the lease must be distinguished from acts in the exercise of the right of Eminent Domain. When the right of expropriation is exercised, the Government expropriates an owner. It acquires or takes possession of property which is owned by a citizen or in which he-has rights which may be described as property movable or immovable. In the present case, there was no-need for the Government to exercise its right of Eminent Domain. It still had ownership of the property. The petitioner was merely a lessee. The lease provides for its resumption under certain circumstances. The Government by resuming it were therefore merely enforcing a right which is accrued to them by the lease. It is therefore not Such acquisition or taking of possession to which Article 31 could by any stretch of imagination apply. The learned Counsel could not cite any authority holding that even when the Government was exercising its powers as a lessor under a condition of the lease, Article 31 could possibly be attracted....

The petition arises out of a dispute as to the interpretation of the term of a contract between the parties. The petitioner is attempting either to enforce the contract or he is attempting to prevent a breach of it by the Government, on his own interpretation. A writ of mandamus is not the appropriate relief in matter arising out of a contract. It is not a writ of right and may not be claimed as a matter of course. It is in the discretion of the court to issue it or not. Normally it would not be granted if there is an alternative remedy which is sufficient and equally convenient. On the other hand, if there is a public right or if the petitioner seeks the enforcement of a public duty for securing which there is no other remedy, the writ should not be normally denied. The writ would the to compel public officials or bodies to perform public duties whether imposed by statute or otherwise. In India, whether has been issued generally for the enforcement of statutory rights and duties. In Carlsbad Mineral Water Mfg. Co. Ltd. Vs. H.M. Jagtiani, Carlsbad Mineral Water Mfg. Co. Ltd. v. H. M. Jagtiani, it was held that the writ can only be granted to compel the performance of duties of a public nature. Bose J. in Dubar Goala and Another Vs. Union of India (UOI) and Others, Dubar Goala v. Union of India held that a mandamus would not lie to enforce or restrict the performance of all contractual obligations. In Civil Rule No. 69 of 1954 ''Inverneil'' a holding situated in Kench''s Trace, Shillong, was ordered to be resumed. The attempted resumption was sought to be resisted by a writ petition. This court relying on Bukhtiarpur Bihar Light Rly. Co. Ltd. Vs. State of Bihar and Others, Bukh(sic)apur Bihar Light Rly. Co. Ltd. v. State of Bihar and other cases declined to grant a writ mainly on the ground that a writ of mandamus may not be" granted to a party who has entered into an agreement with Anr. party and is illegally displaced by the other in breach of the agreement....

His Lordship finally observed as follows:

The petitioner can seek redress more appropriately in the civil court. Agreeing with the view which prevailed in Civil Rule No. 69 of 1954, we reject the petition. We decline to go into the question whether resumption in the case was for a public purpose or not and leave it open to the petitioner to seek relief in the appropriate form". The Hon''ble the Chief Justice, as I said, agreed with the judgment given by Mr. Justice Ram Labhaya. In my opinion, as I have already indicated, the judgments clinch the issues between the parties.

The learned Advocate-General also relied upon the cases of State of West Bengal Vs. Birendra Nath Basunia and Others, and Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, which also proceed on the same lines as the aforesaid two cases of this Court. Dr. Medhi has referred to Sections 8 and 9 of the Specific Relief Act, 1877. u/s 8, a person entitled to the possession of specific immovable property may recover it in the manner prescribed by the Code of Civil Procedure, and Section 9 reads as follows:

If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.

Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

No suit under this section shall be brought against the Central Government or any State Government.

No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

In my judgment, it is not necessary to give any decision on this aspect of the matter. The petition is concluded by the decisions arrived at in the two previous cases as already mentioned and it is not necessary to give any decision as regards the rights of the parties with, reference to these two sections, of the Specific Relief Act, because the rights and obligations springing from contract between the parties shall be decided by the ordinary courts of the land and it is not, therefore, desirable and proper to make-any observations in this regard. It is enough to hold that in Cases of dispute arising but of contract, this Court will not exercise its power under Article 226 of the Constitution.

In the light of my observations made above I would answer the first and the fourth questions in the negative. In answer to question number two, I have already held that the right of the petitioner as a lessee of the land in question under the lease is a fundamental right, but for the reasons given, this Court cannot give him any relief under the provisions of Article 226 of the Constitution. The third question does not arise in view of my decision that the provisions of Article 226 of the Constitution cannot be applied to the facts of the present case and the application thereunder is not maintainable. This question must, therefore, be left to be decided by the appropriate ordinary Courts.

In the view which I have taken, I would agree with the judgment of Deka, J., and the application will stand dismissed and the Rule discharged, but without cost.