Ravi Swaroop Dhavan and A.B. Srivastava, JJ. - (1.) THE petitioner applies to the Court to seek a writ of certiorari that the order of 4th April, 1985 (Annexure "3" to the Writ Petition) needs to be quashed as, in effect, it cancels an agreement with the U.P. State Industrial Development Corporation (hereinafter referred to as "the Corporation"), respondent No. 1, and requires the petitioner to unwind his presence on the plot which was allotted to him under the veil of cancellation between the aforesaid respondent and him. The reason why the allotment of the building has been cancelled is explained in the impugned annexure dated 4th April, 1985 as attributing negligence to the petitioner in not constructing the building for his industry within the stipulated period. In the circumstances, the aforesaid respondent intimates the petitioner that the allotment of the plot stands cancelled and all the moneys paid by him to secure allotment, stands forfeited. On behalf of the petitioner it is contended that of the time when he required to construct the building the perspective has to be seen so as to come to the conclusion on what had happened in preventing the petitioner from putting a building on the plot. It is explained in the writ petition, and submitted on arguments, that at the relevant time for any construction activity, nothing could proceed as any material required for construction was controlled by the system which was known as 'Licence Raj.' Cement was to be procured under a permit as also steel and any other allied material for construction of the building. As the building material was not available and its supply was regulated by the State administration, the issue is not that the petitioner did not intend to construct but he was prevented from constructing within the stipulated period. In answer to the submission of the petitioner, in the counter affidavit it is explained that others, in a similar position as the petitioner, managed to construct their building. No one has appeared on behalf of the Corporation at the time when the matter was taken for hearing. The answer in the counter affidavit is not specific. It only shows that the petitioner's explanation needs to be considered. What the petitioner is attempting to explain is frustration of the contract agreement upon which he had been allotted a plot and had been bound by obligations to put construction of the building which was to house the factory within the stipulated period. Frustration of a contract agreement unless the issues are absolutely clear, can best be decided before an appropriate Court and cannot become the subject matter of a debate in the writ jurisdiction of the High Court. This court is not rejecting the explanation of the petitioner but has come to the conclusion that the petitioner has made out a prima facie case after the record has been examined by the High Court on a writ of certiorari, but the court is unable to issue a writ of mandamus to continue the state of affairs so as to permit the agreement to continue to take effect as if nothing had happened, regard being had to the issue brought to the Court on this writ petition.
(2.) IN the circumstances, the Court is of the opinion that as a first step the Corporation is obliged to hear the petitioner on his explanation on why he could not put a construction on the plot allotted to him for activating himself into production for the factory which he had intended to install. For this purpose, the Corporation will have six weeks time from a certified copy being placed before it to hear the petitioner and record its final decision. If the Corporation does not either take a decision within the period of six weeks or for that matter, is not inclined to agree with the petitioner upon having recorded reasons for the decision which it may take, the petitioner would be at liberty to maintain a suit before the appropriate Court to plead frustration of the agreement during the relevant period and further for seeking such relief to which he may be entitled to. In the circumstances, the petition succeeds in part. The interim order by which the petitioner was not to be dispossessed, dated 9th July 1985, will remain in operation for a period of three months from today. It may also be mentioned on record that the record shows that a third party right apparently had been created when the Corporation had attempted to allot the plot of the petitioner, after it had passed the impugned order dated 4th April, 1985, to one M/s. Classic Polymers Limited, C -3 Panki Industrial Estate, Kanpur. The record shows that on more than one occasion attempt has been made to effect service on the opposition party but the notice so issued had not been received or returned to the Court. In the circumstances, me service on the impleaded respondent was sufficient and it is an action that this respondent had knowledge of these proceedings but chooses not to enter appearance.
(3.) FOR the reasons given in this order, the impugned order dated 4th April, 1985 shall remain in abeyance to be substituted by the reasoned order to be given by the Corporation which it may hereinafter pass. The petition succeeds in part. There will be no order on costs.;