PAPPU Vs. STATE OF U P

JUDGEMENT

(1.) The special appeal is directed against the judgment and order dated 24.9.1999 by which the learned single Judge dismissed the appellant's writ petition being Civil Misc. Writ Petition No. 1407 of 1999 instituted against cancellalion of his fair price shop holding that the writ petition was not maintainable in view of the Full Bench decision of the Court in U. P. Sasta Galla Vikreta Panshad v. State of U. P. and others.

(2.) The first question that needs to be considered and decided pertains to maintainability of the writ petition which was instituted by the appellant challenging the order of cancellation of fair price shop allotted to him. The learned single Judge has dismissed the writ petition as not maintainable. He has placed reliance on the Full Bench decision referred to above. The Full Bench decision, reliance on which has been placed by the learned single Judge, has maintained that in the matter of non-statutory contracts, the rights of the parties thereto are governed by the terms and conditions of the contract and not by any constitutional or statutory provision and, therefore, breach of contract, if any, would not be enforceable by means of the remedy provided under Article 226 of the Constitution of India, The Full Bench further held that any action taken or any order passed in such contractual matters by the State or its officials, however wrong or arbitrary it may be, cannot be challenged under Article 226 of the Constitution inasmuch as Article 14 could not be extended to such contractual matters. A writ petition may be held to be not maintainable either due to the reason that the jurisdiction of the High Court under Article 226 of the Constitution of India in respect of the matter under challenge therein has been taken away by or under any provision of the Constitution. A writ petition in respect of employment under Union of India, for example, would not be maintainable in the first instance due to the reason that for the redressal of such a dispute, the aggrieved party is under the law to approach to the Central Administrative Tribunal in the first instance before approaching the High Court. A petition may be held not maintainable also for the reason that it does not disclose any cause of action or triable Issues : or may be due to the reason that the cause of action has arisen beyond the territorial jurisdiction of the High Court in which the writ petition is instituted or may be due to the reason that the opposite parties are not amenable to the writ jurisdiction of the Court. There may be variety of other reasons on which the Court may decline to entertain a writ petition even though it is otherwise maintainable. The case on hand is not a case where the jurisdiction of the High Court under Article 226 may have been expressly or impliedly taken away by any constitutional provision nor is it a case of extraterritorial jurisdiction nor even a case falling in the category where no cause of action is disclosed or no triable issue is raised in the writ petition.

(3.) Question raised in the writ petition giving rise to the instant Special Appeal pertained to legality and validity and the resolution passed by the concerned Grain Panchayat in re-cancellation of fair price shop allotted to the petitioner-appellant and consequential order passed by the concerned Up-Zlladhikari. It is not disputed that the impugned resolutions and the consequential order were passed after the issuance of the Government Order No. 3035/29-Aa-6-9937 Sa./99. Khadya Tatha Rasad Anubhag 6. Lucknow, dated August 10. 1999 in re-selection, etc. of fair price shops in rural areas in the background of decentralization of power in view of the Seventy-third Constitution amendment by which Part IX in Re : "The panchayats" and Eleventh Schedule were added in the Constitution. Part IX consists of Articles 243 to 243ZG, Article 243G, which is relevant to the controversy herein, is quoted below :