The writ petition seeking a Mandamus to declare a lease termination illegal and extend the lease was dismissed. The Court held that disputes over non-statutory contracts fall within the realm of common law courts and issued no Mandamus to rewrite the lease deed or extend the lease period.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY
WRIT PETITION No.6469 OF 2013
Date:05-03-2013
BETWEEN: Tammana Sai Rama Rao .. Petitioner AND The Government of Andhra Pradesh, Medical & Health Department, Secretariat, Hyderabad, represented by Its Secretary & 2 others. .. Respondents
Counsel for the petitioner : Mr. O. Manoher Reddy Counsel for the Respondents : Asst. Govt. Pleader for Medical & Health
The Court made the following:
ORDER:
This Writ Petition is filed for a Mandamus to declare the order in Rc.No.3618/H2/2010, dated 29-01-2013 of respondent No.3 whereby he has informed the petitioner that it is not possible to extend the lease period and directed him to vacate the medical shop as per tender agreement with effect from 31-01-2013 as illegal.
I have heard Mr. O. Manoher Reddy, the learned counsel for the petitioner and perused the record.
The petitioner was granted lease to run a medical shop in the Government General Hospital premises, Kakinada. The lease granted was for a period of two years. As the lease period was to expire by 31.01.2013, the petitioner made a representation to respondent No.3 to extend the lease on the ground that contrary to the tender conditions, a 4th shop was permitted to be opened, as a result of which, the sales of his shop have gone down and he has sustained losses. Without taking decision thereon, respondent No.3 has issued letter, dated 27-12-2012, calling upon the petitioner to hand over vacant possession of the shop by the
afternoon of 31.01.2013. Feeling aggrieved thereby, the petitioner filed W.P. No.2278 of 2013, and this Court, by order, dated 29.01.2013, disposed of the said writ petition, with a direction to respondent No.3 to consider the petitioner’s representation in the light of the tender conditions and take an objective decision on his request for extension of lease. On the same day, on which the said writ petition was disposed of, respondent No.3 purported to have issued the impugned Letter whereunder the petitioner’s request was rejected and a direction was given to him to hand over vacant possession of the subject shop on the afternoon of 31.02.2013.
The learned counsel for petitioner submitted that G.O. Ms. No.54 of HM & FW (L2) Department, dated 14-03-2011, on which reliance has been placed by respondent No.3 in the impugned letter, has no relevancy. He has further submitted that the petitioner’s representation that his business was affected on account of permission granted for opening of a 4th shop was not at all considered.
Undisputedly, the relationship between the petitioner and respondent No.3 is governed by a concluded contract. No doubt, clause-3 of the lease deed referred to G.O.Ms.No.516, HM & FW (M1) Department, dated 14.10.2005, and it is mentioned therein that as per the said G.O., Government General Hospital, Kakinada is eligible to establish three medical shops by tender-cum-open auction system. It is the pleaded case of the petitioner that he has bona fide believed that there will not be a 4th shop and has offered high amount towards lease and that respondent No.3 has
committed breach of the said lease condition by permitting opening of the 4th shop, due to which, the petitioner’s business has been seriously affected.
In my considered opinion, whether clause-3 of the lease deed has created an obligation on respondent No.3 not to give permission for opening a 4th shop and if it is so, what consequences would flow out of breach of the said obligation fall in the realm of adjudication of disputes by the common law Courts. Ordinarily, all the disputes arising out of non-statutory contracts, need to be adjudicated by the common law Courts even if the State or its instrumentalities are parties to the agreements. Unless the constitutional courts perceive the action of the State as patently arbitrary, they seldom entertain disputes arising out of the concluded non-statutory contracts. (See: M/s. Radhakrishna
Agarwal & others Vs. State of Bihar & others[1] , Asst. Excise Commissioner Vs. Issac Pete r[2] , and State of M.P. & others Vs. Lalit Jagg i[3] } .
Even assuming that clause-3 of the lease deed has the effect of creating an obligation in respondent No.3 not to permit opening of a 4th shop and that on account of breach of its contractual obligation, the petitioner has suffered losses, he would only be entitled to claim appropriate damages for the loss of business he has suffered. As there is no clause permitting extension of lease period on any ground in the lease deed, even if this Court comes to the conclusion that respondent No.3 has acted
in contravention of the lease deed, it will not issue a Mandamus to extend the lease period as that would amount to this Court rewriting the lease deed.
In the above facts and circumstances of the case, I am of the opinion, that a Mandamus cannot be issued on the facts of this case. The petitioner is relegated to the common law remedy of a civil suit for damages. This order, however, shall not be understood as this Court expressing any opinion in favour of either of the parties. In the event a civil suit is filed by the petitioner, the competent Court shall decide the suit on its own merits on the basis of the evidence that may be produced by both the parties.
Subject to the liberty given as above to the petitioner, the writ petition is dismissed.
As a sequel to the dismissal of the writ petition, W.P.M.P. No.8095 of 2013 filed by the petitioner for interim relief stands dismissed.
C.V. NAGARJUNA
REDDY, J March 05, 2013. Mgr/Lur
2 issues framed by the court
Whether a writ of Mandamus can be issued to extend the lease period of a medical shop contrary to the lease deed.
Whether the High Court can rewrite the lease deed by directing the government to extend the lease.
Colour shows how this judgement treated each authority
M/s. Radhakrishna Agarwal & others Vs. State of Bihar & othersExplained¶15
M/s. Radhakrishna Agarwal & others Vs. State of Bihar & others
Asst. Excise Commissioner Vs. Issac PeteExplained¶15
Asst. Excise Commissioner Vs. Issac Pete
State of M.P. & others Vs. Lalit JaggiExplained¶15
State of M.P. & others Vs. Lalit Jaggi
Tammana Sai Rama Rao
The Government of Andhra Pradesh, Medical & Health Department
C.V. Nagarjuna Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
