Netra Pal Singh vs State Of Up And 2 Others

Reserved on 07.05.2026
Delivered on 06.07.2026
A.F.R.
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - C No. - 35283 of 2024
Netra Pal Singh
.....Petitioner(s)
Versus
State Of Up And 2 Others
.....Respondent(s)
Counsel for Petitioner(s) : Anurag Kumar Ojha, Siddharth Khare
Counsel for Respondent(s) : Ajit Singh, C.S.C., Santosh Kumar
Srivastava

Court No. - 4
HON'BLE NEERAJ TIWARI, J.
HON'BLE SUDHANSHU CHAUHAN, J.
(Delivered by Hon'ble Sudhanshu Chauhan J.)
1. Heard Sri Siddharth Khare along with Sri Anurag Kumar Ojha, learned
counsels for the petitioner, learned Standing Counsel for the State-
respondent no.1 and Sri Santosh Kumar Srivastava, learned counsel
appearing on behalf of the respondent nos. 2 and 3.
2. The petitioner has filed the present petition, being aggrieved by the order
dated 28.09.2024 passed by respondent no. 2, Chief General Manager, UP
Fisheries Development Corporation Limited, Lucknow, by means of which
the agreement for Fisheries Lease has been cancelled and the security
amount of Rs. 67,70,825/- forfeited, besides, the petitioner has also been
called upon to deposit an amount of Rs.1,82,67,040/- within a period of 15
days, failing which, proceedings of recovery as arrears of land revenue shall
be initiated, and the petitioner blacklisted. The petitioner is also aggrieved
by the letter dated 07.10.2024 issued by the Manager (Finance and
Accounts), UP Fisheries Development Corporation Limited, Lucknow, by
means of which the Branch Manager, Punjab and Sindh Bank, has been
called upon to release the Bank Guarantee/FDR deposited by the petitioner
in favor the respondent- Corporation.

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3. The controversy shorn of facts is that the UP Fisheries Development
Corporation Limited, Lucknow (hereinafter referred to as "the Corporation")
had invited applications through e-tender for auction of fishing rights of
Sharda Sagar Reservoir, Class I having a total area of 6,880 hectares situated
in District Pilibhit for a tenure of 10 years, i.e., upto 30.06.2033. Under the
e-tender, the petitioner was required to deposit 25% of the total amount as
stipulated within a period of 24 hours from the selection of the bid, the
petitioner, in this regard, had duly deposited an amount of Rs. 55,45,221/- on
14.07.2023. Subsequently, the petitioner had deposited the security amount
of Rs. 67,70,825/- on 18.08.2023 in the shape of fixed deposit receipts. The
petitioner had also deposited a stamp duty of Rs. 27,88,830/- for the
purposes of execution of the agreement. Besides, the petitioner had also
deposited an amount of Rs. 13,54,430/- with the respondents as contract
fees.
4. Ultimately, an agreement dated 29.08.2023 was concluded between the
parties for the fisheries lease in the Sharda Sagar Reservoir, Pilibhit. In this
regard, an order dated 14.09.2023 was issued granting the contract for the
year 2023-24 to the petitioner.
5. However, shortly after the petitioner reached the reservoir to carry out
fishing, the employees of the petitioner were detained and the fishing boats
seized by the forest authorities on the pretext that the area in which fishing
was carried out belonged to Pilibhit Tiger Reserve and fishing was
prohibited in the said area. The petitioner, on the basis of a reply to an
application under the RTI Act, states that a total area of 683.88 hectare of the
Sharda Sagar Reservoir fell in the core area of the Pilibhit Tiger Reserve.
Besides there was also a prohibition on any activity within 200-500 m from
the place where the water from the reservoir entered the Pilibhit Tiger
Reserve, as it was also considered to be the core area. It is also contended
that there are six villages comprising roughly 1,000 hectares in the Sharda
Sagar Reservoir where there is no water at all, and villagers are carrying out
agricultural activities, thus, the petitioner was also deprived from carrying
out fishing in this area of the reservoir. Further, no fishing could also be
carried out in the area of the reservoir which fell within the territory and
jurisdiction of the State of Uttarakhand.
6. Besides, the petitioner has also placed reliance upon records of the
National Register of Dams as well as the chart maintained by the Irrigation

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and Water Resources Department to demonstrate that the total area of the
Sharda Sagar Reservoir is 5765 hectares whereas the fisheries lease in
respect of an area of 6880 hectares had been granted, which was practically
not possible.
7. It is in the above circumstances as the actual fishing area allotted to the
petitioner fell much short of the area advertised that the petitioner could not
deposit the amounts due under the agreement, and there were defaults on the
part of the petitioner. In this regard, several notices were issued to the
petitioner by the respondents and the petitioner in response thereto had
ventilated his grievances.
8. However, as the petitioner failed to make payments in due accordance
with the terms of the agreement, ultimately the respondent no. 2 vide the
impugned order dated 28.09.2024 had terminated the agreement and
forfeited the security deposit of Rs. 67,70,825/- and further had called upon
the petitioner to deposit the remaining amount due being Rs. 1,82,67,040/-
under the agreement and by means of another letter dated 07.10.2024, the
bankers of the petitioner were called upon to release the bank
guarantee/FDR in favour of the Corporation.
9. Thus, the crux of the contention of the petitioner is that the petitioner was
never provided the total area of the reservoir in respect of which bids were
invited, measuring 6,880 hectares. The respondent, while having failed to
provide the required area, had committed a fundamental breach of the
agreement. The petitioner in this regard has drawn the attention of this Court
to the letter dated 30.07.2024 issued by the petitioner, wherein it was
categorically submitted that the area of the reservoir, which should have
been 6,880 hectares, was falling short by 1,798.88 hectares, in view of the
fact that in the National Register of Large Dams, the area of Sharda Sahayak
Reservoir was only 5,765 hectares and an area of 683.88 hectares fell in the
core area of Pilibhit Tiger Reserve. Besides, the petitioner has also relied
upon the reply to the application under the RTI Act dated 17.02.2024 issued
by the forest authorities at Pilibhit Tiger Reserve. The petitioner states that it
is not as if the petitioner had not deposited any amount after execution of the
agreement, and in fact the petitioner had deposited an amount of Rs.
1,05,15,000/- upto 19.09.2024 other than amounts already deposited at the
time of the agreement. Hence, it is contended on behalf of the petitioner that
it is solely on account of defaults and breaches on the part of the respondents

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that the petitioner could not carry out the fishing, and as a consequence,
there was delay in payment of installments under the agreement.
10. Per contra, it is contended on behalf of the respondent's no. 2 and 3 that
the present writ petition itself is not maintainable, as the petitioner has an
alternative remedy of resorting to arbitration by invoking the arbitration
clause contained in the agreement. In this regard it is further submitted that
the present controversy involves disputed questions of fact which cannot be
decided in proceedings under Article 226 of the Constitution of India. It is
further stated that the agreement was executed on," as-is-where-is basis",
and it was specifically provided in the tender conditions that, before
participating in the auction bid, the auction bidder should himself make a
spot inspection of the reservoir. Besides, it is only a miniscule area of the
Sharda Sahayak Reservoir, which is not fit for fishing, in comparison to the
total area of the reservoir. Hence, it is contended that the impugned order
dated 28.09.2024 and letter dated 07.10.2024 has been issued in due
accordance with the terms of the agreement solely on account of defaults on
the part of the petitioner in making payment of the installments as agreed
upon by the parties.
11. We have perused the records of the case and find that no serious dispute
has been raised by the respondents regarding the area allotted to the
petitioner for the purposes of fishing having fallen short as compared to the
area mentioned in the e-tender notice i.e 6,880 hectares. The respondents in
their counter affidavit have only given an evasive reply as far as the
contention of the petitioner that 683.88 hectares of the area of the reservoir
fell in the core area of Pilibhit Tiger Reserve and in the National Register of
Dams the total area of the said reservoir was only 57650 hectares. Thus,
prima facie, it seems that the contention so raised by the petitioner has force.
12. Be that as it may, even if we take the contention of the petitioner to be
correct that the petitioner was deprived of 1798.88 hectares of reservoir area
for fishing, we cannot remain oblivious of the fact that the petitioner had
5,081.12 hectares of reservoir area out of the total area of 6,880 hectares
available to him for fishing. Further, the agreement between the parties
admittedly was executed on 29.08.2023 and was terminated vide the
impugned order was dated 28.09.2024, thus, the petitioner had carried out
fishing for a period of about thirteen months, which was admittedly available
to the petitioner for the purpose. It is not the case of the petitioner that the

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petitioner did not carry out any fishing whatsoever on account of the
shortfall in the reservoir area. Thus, the income earned by the petitioner
during this period of thirteen months shall also have to be taken into
consideration while adjudicating the disputes so arisen between the parties.
However, we are afraid that no figures in respect of the income earned by
the petitioner during this while have been brought on record.
13. Moreover, not only is the question of the income earned by the petitioner
while carrying out fishing under the agreement, but also the questions of the
actual reservoir area made available to the petitioner for fishing and the
effect thereof on the adjustments to be made in the installments payable, if
any under the agreement are also disputed questions of fact. Further perusal
of the impugned order dated 28.09.2024 reveals that an amount of Rs.
91,56,859/- was due from the petitioner in respect of the installments, an
amount of Rs. 21,00,000/- was due towards the fish seeds and an amount of
Rs.7, 42,420 was due as penal interest for the auction year 2023-24, while
the remaining amount was due towards the auction year 2024-25. On the
other hand, the petitioner states to have deposited Rs. 1,05,15,000/- upto
19.09.2024, other than the amounts that had been deposited by the petitioner
at the time of execution of the agreement dated 29.08.2024. Hence, from the
evidence that has been placed on record, it is also not clear as to what is the
actual amount to be recovered from the petitioner by the respondents or in
the alternative if, any amount is payable by the petitioner other than what has
already been paid. Even the question as to whether the termination of the
agreement is invalid or is valid and has been made in due accordance with
the terms of the agreement is a question of fact.
14. We are afraid all the questions, as mentioned in the preceding paragraph,
are disputed questions of fact, which require the parties to adduce evidence
in support of their respective case and the same cannot be adjudicated in
proceedings under Article 226 of the Constitution of India. We make it clear
that these are only a few questions that have crept in our minds, and there
would be many such questions, which would require adjudication by the
competent forum.
15. It is well settled that this Court, in exercise of powers under Article 226
of the Constitution of India, normally does not entertain petitions with regard
to contractual disputes, particularly if there are disputed questions of fact
involved. Although there is no absolute bar on entertaining petitions

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involving contractual disputes, the circumstances in which such a writ
petition can be entertained had been elucidated by the Apex Court in the
judgment in the case of Joshi Technologies International Inc. vs Union of
and the same reads as follows:-
India, (2015) 7 SCC 728
" 69. The position thus summarized in the aforesaid principles
has to be understood in the context of discussion that preceded
which we have pointed out above. As per this, no doubt, there is
no absolute bar to the maintainability of the writ petition even in
contractual matters or where there are disputed questions of fact
or even when monetary claim is raised. At the same time,
discretion lies with the High Court which under certain
circumstances, it can refuse to exercise. It also follows that
under the following circumstances, "normally", the Court would
not exercise such a discretion:
69.1. The Court may not examine the issue unless the action has
some public law character attached to it.
69.2. Whenever a particular mode of settlement of dispute is
provided in the contract, the High Court would refuse to exercise
its discretion under Article 226 of the Constitution and relegate
the party to the said mode of settlement, particularly when
settlement of disputes is to be resorted to through the means of
arbitration.
69.3. If there are very serious disputed questions of fact which
are of complex nature and require oral evidence for their
determination.
69.4. Money claims per se particularly arising out of contractual
obligations are normally not to be entertained except in
exceptional circumstances.
70. Further, the legal position which emerges from various
judgments of this Court dealing with different situations/aspects
relating to contracts entered into by the State/public authority
with private parties, can be summarized as under:
70.1. At the stage of entering into a contract, the State acts
purely in its executive capacity and is bound by the obligations
of fairness.
70.2. State in its executive capacity, even in the contractual field,
is under obligation to act fairly and cannot practice some

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discriminations.
70.3. Even in cases where question is of choice or consideration
of competing claims before entering into the field of contract,
facts have to be investigated and found before the question of a
violation of Article 14 of the Constitution could arise. If those
facts are disputed and require assessment of evidence the
correctness of which can only be tested satisfactorily by taking
detailed evidence, involving examination and cross-examination
of witnesses, the case could not be conveniently or satisfactorily
decided in proceedings under Article 226 of the Constitution. In
such cases the Court can direct the aggrieved party to resort to
alternate remedy of civil suit, etc.
70.4. Writ jurisdiction of the High Court under Article 226 of the
Constitution was not intended to facilitate avoidance of
obligation voluntarily incurred.
70.5. Writ petition was not maintainable to avoid contractual
obligation. Occurrence of commercial difficulty, inconvenience
or hardship in performance of the conditions agreed to in the
contract can provide no justification in not complying with the
terms of contract which the parties had accepted with open eyes.
It cannot ever be that a licensee can work out the license if he
finds it profitable to do so: and he can challenge the conditions
under which he agreed to take the license, if he finds it
commercially inexpedient to conduct his business.
70.6. Ordinarily, where a breach of contract is complained of,
the party complaining of such breach may sue for specific p
erformance of the contract, if contract is capable of being
specifically performed. Otherwise, the party may sue for
damages.
70.7. Writ can be issued where there is executive action
unsupported by law or even in respect of a corporation there is
denial of equality before law or equal protection of law or if it
can be shown that action of the public authorities was without
giving any hearing and violation of principles of natural justice
after holding that action could not have been taken without
observing principles of natural justice.
70.8. If the contract between private party and the
State/instrumentality and/or agency of the State is under the
realm of a private law and there is no element of public law, the

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normal course for the aggrieved party, is to invoke the remedies
provided under ordinary civil law rather than approaching the
High Court under Article 226 of the Constitution of India and
invoking its extraordinary jurisdiction.
70.9. The distinction between public law and private law element
in the contract with the State is getting blurred. However, it has
not been totally obliterated and where the matter falls purely in
private field of contract, this Court has maintained the position
that writ petition is not maintainable. The dichotomy between
public law and private law rights and remedies would depend on
the factual matrix of each case and the distinction between the
public law remedies and private law field, cannot be demarcated
with precision. In fact, each case has to be examined, on its facts
whether the contractual relations between the parties bear
insignia of public element. Once on the facts of a particular case
it is found that nature of the activity or controversy involves
public law element, then the matter can be examined by the High
Court in writ petitions under Article 226 of the Constitution of
India to see whether action of the State and/or instrumentality or
agency of the State is fair, just and equitable or that relevant
factors are taken into consideration and irrelevant factors have
not gone into the decision making process or that the decision is
not arbitrary.
70.10. Mere reasonable or legitimate expectation of a citizen, in
such a situation, may not by itself be a distinct enforceable right,
but failure to consider and give due weight to it may render the
decision arbitrary, and this is how the requirements of due
consideration of a legitimate expectation forms part of the
principle of non-arbitrariness.
70.11. The scope of judicial review in respect of disputes falling
within the domain of contractual obligations may be more
limited and in doubtful cases the parties may be relegated to
adjudication of their rights by resort to remedies provided for
adjudication of purely contractual disputes.
71. Keeping in mind the aforesaid principles and after
considering the arguments of the respective parties, we are of the
view that on the facts of the present case, it is not a fit case
where the High Court should have exercised discretionary
jurisdiction under Article 226 of the Constitution. First, the
matter is in the realm of pure contract. It is not a case where any

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statutory contract is awarded."
16. In the case of Union of India vs Puna Hinda, (2021)10 SCC 690 , the
Apex Court has crystallized relatively narrow grounds in which writ
petitions under Article 226 would be an appropriate remedy in a contractual
dispute and has held as under :-
" 24. Therefore, the dispute could not be raised by way of a writ petition
on the disputed questions of fact. Though, the jurisdiction of the High
Court is wide but in respect of pure contractual matters in the field of
private law, having no statutory flavour, are better adjudicated upon by
the forum agreed to by the parties. The dispute as to whether the amount
is payable or not and/or how much amount is payable are disputed
questions of facts. There is no admission on the part of the appellants to
infer that the amount stands crystallised. Therefore, in the absence of any
acceptance of joint survey report by the competent authority, no right
would accrue to the writ petitioner only because measurements cannot be
undertaken after passage of time. Maybe, the resurvey cannot take place
but the measurement books of the work executed from time to time would
form a reasonable basis for assessing the amount due and payable to the
writ petitioner, but such process could be undertaken only by the agreed
forum i.e. arbitration and not by the writ court as it does not have the
expertise in respect of measurements or construction of roads."
17. On the other hand, the petitioner, while contending that the presence of
the arbitration clause in the agreement is not an absolute bar regarding the
maintainability of the present petition, the petitioner in support thereof has
relied upon the judgment of the Apex Court in the case of Harbanslal
Shania and another vs Indian Oil Corporation Ltd. and others, A.I.R.
2003 SC 2120. However, the perusal of the said judgment reveals that the
controversy involved arose out of the termination of the dealership of the
appellant, which was done in contravention of the principles of natural
justice. Further there were no disputed facts involved, apparently, in the said
case, which is not so in the present case. The Apex Court in the said case had
held as under:-
"7. So far as the view taken by the High Court that the remedy by way of
recourse to arbitration clause was available to the appellants and
therefore the writ petition filed by the appellants was liable to be
dismissed, suffice it to observe that the rule of exclusion of writ
jurisdiction by availability of an alternative remedy is a rule of discretion
and not one of compulsion. In an appropriate case, in spite of availability

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of the alternative remedy, the High Court may still exercise its writ
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 an Act and is
challenged. See Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai and others (1998) 8 SCC 11. The present case attracts
applicability of first two contingencies. Moreover, as noted, the
petitioners' dealership, which is their bread and butter, came to be
terminated for an irrelevant and non-existent cause. In such
circumstances, we feel that the appellants should have been allowed relief
by the High Court itself instead of driving them to the need of initiating
arbitration proceedings."
18. Thus, it is evident that there was a failure of principles of natural justice
and violation of fundamental rights in the said case, while passing the
termination order. However, in the present case, it is not at all so, as
admittedly various notices were issued to the petitioner to pay the
installments, failing which the agreement would stand terminated and the
petitioner has also failed to demonstrate as to how it's fundamental rights
have been violated. Hence, the petitioner would not be entitled to the benefit
of the law, so relied upon by the petitioner. Moreover, the present
controversy also involves disputed questions of fact as already held above.
19. Another contention of the petitioner, in reply to availing the remedy of
alternative remedy in the shape of arbitration, is that the writ petition has
been pending since long and the parties have already exchanged their
pleadings, hence, it would not be in the interest of justice to relegate the
parties to avail the alternative remedy at this stage and the petitioner would
be subjected to undue hardship in the process.
20. In this regard, we rely upon the law laid down by the Apex Court in the
case of State of UP & Anr. versus Ehsan and Anr., 2023 LiveLaw (SC) 887
wherein amongst others the controversy that arose was in respect of the
disputed question of possession and as to whether the parties should be
relegated to avail the remedy of civil suit and it was held as under:-
"28. We are conscious of the law that existence of an alternative remedy
is not an absolute bar on exercise of writ jurisdiction. More so, when a
writ petition has been entertained, parties have exchanged their
pleadings/ affidavits and the matter has remained pending for long. In

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such a situation there must be a sincere effort to decide the matter on
merits and not relegate the writ petitioner to the alternative remedy,
unless there are compelling reasons for doing so. One such compelling
reason may arise where there is a serious dispute between the parties on
a question of fact and materials/evidence(s) available on record are
insufficient/inconclusive to enable the Court to come to a definite
conclusion.
36. In view of the above conclusion, the appeal is allowed. The impugned
order passed by the High Court is set aside. The first respondent's writ
petition is dismissed without prejudice to his right to institute a suit.
Parties to bear their own costs"
21. Thus in view of the above circumstances, we hold that the present writ
petition is not maintainable for the reason that an alternative and efficacious
remedy by resorting to arbitration is available to the petitioner, and more so
as the present controversy involves disputed questions of fact which can
only be adjudicated after the parties have adduced their respective evidence.
22. Before we part, we are also conscious of the fact that this court, vide the
order dated 12.12.2024, had stayed the orders dated 28.09.2024 and
07.10.2024, which are impugned in the present writ petition. Hence, we are
of the view that an interim protection should be provided to the petitioner till
the time the petitioner avails an appropriate remedy under the Arbitration
and Conciliation Act, 1996.
23. Thus, for the reasons detailed above, the present petition is dismissed
with the liberty to the petitioner to avail remedy under the Arbitration and
Conciliation Act, 1996, within a period of six weeks from the date of this
order and till then, the operation of the impugned order dated 28.09.2024
and the order dated 07.10.2024, morefully annexed as Annexure No. 1 and
Annexure No. 2 to the present petition, shall remain stayed. It is also made
clear that the interim protection so granted to the petitioner shall
automatically stand vacated after a passage of six weeks from the date of this
order.
24. It is also clarified that we have not expressed any binding opinion as to
which of the parties had breached the terms of the Agreement dated
29.08.2023. Observations, if any, in this regard are purely for the purpose of
deciding whether the present petition should have been entertained or not.
Hence, if any arbitration proceedings are initiated, the same shall be decided

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on it's own merits.
25. No order as to costs.
July 6, 2026
Gaurav
(Sudhanshu Chauhan,J.) (Neeraj Tiwari,J.)
Digitally signed by :-
GAURAV PATEL
High Court of Judicature at Allahabad