Judgment :- This writ petition is filed under Art.226 of the Constitution of India for issuance of writ of mandamus directing the respondent, Government Cinchona Department, to refund the various amounts held as security and earnest money deposits of the petitioner and grant such further or other reliefs as deemed fit. 2. The case of the petitioner as disclosed from the affidavit filed in support of the petition are briefly as follows: The petitioner is a forest contractor of Cinchona Department from 1974. In the year 1978, he became the successful tenderer for felling and removal of tress in Moyar, Hooker and Naduvattam Divisions of Cinchona Department, Udhagamandalam, The Nilgiris. All the contracts were awarded on 18.5.1978 (1) for felling and removal of silver oak trees etc., and supply of firewood to the Cinchona Department. According to petitioner the completion of the contract in respect of Moyar Division Blocks XII-B, XH XII-C was over in March, 1982. For this contract, he has paid as security deposit a sum Rs.34,872 covered under F.D.R.No.56 of 1978 issued by the Nedungadi Bank, Udhagamandalam Branch. In the affidavit, he would give details of the various timber removed and supplied to the department. According to him, he removed the timber excessively over and above the estimated quantity to the Department. After a lapse of 4 years, the respondent, namely, the Director of the Government Cinchona Department, issued the impugned proceedings dated 30.7.1986 wherein it was mentioned that the loss to the Government because of non-completion of the work as per the agreement executed by the petitioner is Rs.22,840.25 and he has been asked to show cause within fifteen days as to why this amount should not be adjusted towards the security deposit Rs.34,872 and the E.M.D. of Rs.5,000 forfeited to Government due to non-fulfilment of contractual obligations as per the terms of contract. It is submitted by the petitioner that filed W.P.No.12186 of 1983 for return of the security deposit covered under F.D.R.No.546020 for sum of Rs.1,21,200 in respect of Block Nos.XIII-A-41, XII-A- 45 and 64-65 comprised in Moyar Division. The Director was directed to return the deposit to the petitioner. Since he failed to obey the same, Contempt Application No.55 1986 was filed and thereafter the amount was refunded. It is only in order to wreak vengeance, the Director issued the impugned proceedings. The Director was directed to return the deposit to the petitioner. Since he failed to obey the same, Contempt Application No.55 1986 was filed and thereafter the amount was refunded. It is only in order to wreak vengeance, the Director issued the impugned proceedings. He disputed the allegation he is liable for any amount by way of loss to the Government much less Rs.22,840.25 pertaining to the abovemen-tioned contract. Though he issued a reply to the said show cause notice dated 30.7.1986 and demanded return of the deposit, the amount was returned. There was no reply to his representation to the Minister for Forest. He has set the details of the security money and the earnest money deposited, in para 22 of affidavit and prayed for issue of writ of mandamus directing the respondent to return various amounts set out in para 22. 3. The said petition is stoutly opposed by the respondent and in the counter-affidavit filed the respondent, the various allegations contained in the affidavit are specifically denied it was inter alia contended as follows: The petitioner has been awarded contract works Moyar, Hooker and Naduvattam Divisions of Cinchona Department, Udhagamandalam, Nilgiris, and on 18.5.1978 he was awarded the above three contracts under which undertook the work, namely, (1) felling and removal of silver oak trees in timber form, (2) supply of firewood to the Cinchona Department. Subsequently, as per his request, he been permitted to remove silver oak poles, having 60 cm. girth and less at bottom end Rs.3 per R.M. It is stated that the petitioner furnished security deposit of Rs.34,872 respect of the contract work in Block Nos.XII-B, XH-b, XII-c of the Government Cinchona Department. As per clause 6(b) of the agreement executed by the petitioner, he should remove all the quantities of the materials actually obtained from the allotted trees. Further, as per agreement executed by the petitioner to the Department, for felling and removal timber, he has to remit 80% of the value in advance for felling of standing crops and contractor was permitted to remove the quantity for which he has made remittance in The contention of the petitioner that he has completed the contract work by March, 1982 not correct as he himself applied for extension of lime periodically upto 31.12.1982. Even his letter dated 12.7.1982, he admitted that the felled logs remaining in the field could be removed and sought for extension of time upto 31.1.1983. The respondent has set the details as to how the loss was assessed in respect of each field. It is submitted that the contract works were stopped with effect from 29.1.1983 as per Government Orders the pending works are reviewed by the Government and orders were issued to take action to recover the loss on each contract as per the terms of the agreement during 1986, since the Department has incurred heavy loss because of the noncompliance of the contract as per agreement executed by him. 4. It is further submitted that the petitioner has furnished a common E.M.D. of Rs.5,000 three contracts and has not furnished E.M.D. of Rs.5,000 for each of the three contracts that he has made the false statement to mislead the court. In respect of the security deposit of Rs.34,872 concerned in Block Nos. XII-B, XII-b, XII-c of Moyar Division, the petitioner not entitled to ask for refund of security deposit and E.M.D. for the reasons stated in show cause notice issued in the proceedings dated 30.7.1986 already referred to. 5. In respect of the security deposit of Rs.4,528, relating to Block 11-A of Hooker Division, is stated that the petitioner has fulfilled the contractual obligations and the security deposit has been adjusted towards the security deposit of Rs.10,496 required to be furnished by petitioner in Further, as per the terms of the agreement, the respondent is the final authority to and recover the loss from the security deposit held by the department. As per Clause the agreement executed with the Department, the petitioner has to stake the firewood one metre billets for taking measurement. The petitioner has not staked the firewood required in the agreement and supplied to the department. On the other hand, allowed the firewood in the field scattered without handing over to the department department has incurred heavy loss on account of the same. It is further submitted petitioner purposely delayed the execution of the work from 1978 to 1982 by extension of time nine times from July, 1978 and each time the petitioner’s work reviewed and extension of time was granted only with fines. It is further submitted petitioner purposely delayed the execution of the work from 1978 to 1982 by extension of time nine times from July, 1978 and each time the petitioner’s work reviewed and extension of time was granted only with fines. It is clear that the petitioner not fulfil the contractual obligations within the stipulated time and the same was extended upto December, 1982. As such, the contention that the performance was never found with is false and is without basis. The details of the various security deposits and the money deposits are set out in the counter-statement and it is stated that only the deposit of Rs.34,872.00 in respect of contracts of Blocks Nos. XII-B, XII-b, XII-c is for refund and a sum of Rs.22,840.25 is recoverable towards loss from the above deposit. As such the amount to be refunded is only Rs.12,031.75 and no other deposit be refunded to the petitioner. It was finally-submitted that the petitioner has not made any case for any interim relief or for invoking the writ jurisdiction of this Court under of the Constitution of India and consequently prayed for dismissal of the writ petition. 6. The question that arises for consideration in this petition is whether the petitioner entitled to the relief prayed for by invoking the writ jurisdiction of this court under Art.226 the Constitution of India. 7. It is not in dispute that the writ petitioner was the successful tenderer for felling removal of the silver oak trees in Moyar, Hooker and Naduvattam Divisions of Cinchona Department, Udhagamandalam. The terms and conditions of the contract were reduced writing. As per the terms of the agreement, the petitioner made security deposit Nedungadi Bank, Udhagamandalam, in respect of the contract for felling and removal silver oak trees from Block Nos.XII-B,XII-b, XII-c of Moyar Division. It is seen that completion of the work was given upto July, 1978. But, he did not complete the work the time and on his applications, time was extended on more than nine occasions and last six occasions, fine was imposed ranging from Rs.500 to Rs.1,281. According petitioner, he has completed the work as per the terms of the contract. But, according respondent-department, since the petitioner did not complete the work inspite of extension of time granted, all the contract works were stopped from 29.1.1983 as per Government Orders. According petitioner, he has completed the work as per the terms of the contract. But, according respondent-department, since the petitioner did not complete the work inspite of extension of time granted, all the contract works were stopped from 29.1.1983 as per Government Orders. The petitioner issued a notice through his lawyer on 19.11.1985 calling upon respondent to refund the security deposit. The respondent issued a reply setting out in the loss sustained by the department and asking him to pay the same. According to the respondent, the total loss to the Government because of the non-completion of the work undertaken him is Rs.22,840,25, and the petitioner has been asked as to why it should not be adjusted out of the security deposit amount of Rs34,872 and E.M.D. of Rs.5,000 for the performance of the contract. Thereupon this writ petition was filed for refund of the security deposit. Though the petitioner has asked for refund of other amounts, the contention respondent is that those amounts have already been disbursed and it is also not disputed. Now we are concerned only with the deposit of Rs.34,872 covered by F.D.R.No.56 of issued by the Nedungadi Bank, Udhagamandalam, in respect of Moyar Division Nos.XII-B, XII-b, XII-C, and another sum of Rs.5,000 towards earnest money deposit connection, the learned Government Advocate appearing for the respondent submitted since the relief prayed for is only in pursuance of a contract between the petitioner and respondent, no writ can be issued and it is open to the petitioner to take appropriate proceedings if there is any breach of contract pure and simple as alleged. In this connection, he drew the attention of this court to various decisions of the Supreme Court. In Development Authority v. Ajay Pal Singh, A.I.R. ‘1989 S.C. 1076. In this connection, he drew the attention of this court to various decisions of the Supreme Court. In Development Authority v. Ajay Pal Singh, A.I.R. ‘1989 S.C. 1076. Their Lordships Supreme Court have observed as follows: “There is a line of decisions where the contract entered into between the State and persons aggrieved is non-statutory and purely contractual and the rights are governed by the terms of the contract, no writ or order can be issued under Art.226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple; Radhakrishna Agarval v. State of Bihar, A.I.R. 1977 S.C. 1496: (1977)3 S.C.R. .249 ; Bhai Parmar v. Delhi Development Authority, A.I.R. 1980 S.C. 738: (1980)2 S.C.R. Divisional Forest Officer v. Bishwanath Tea Company Ltd, A.I.R 1981 S.C. 1368: (1981)3 S.C.R. 662 .” In Divisional Forest Officer v. Bishwanath Tea Company Ltd., A.I.R. 1981 S.C. 1368: (1981)3 S.C.R. 662 , it was held: “ Where a company tried to enforce through writ petition the right to remove timber without the liability to pay royalty, it was held that the company was not enforcing its right Rule 37 of the Assam Land and Reve-nue and Local Rates Regulation, but was seeking enforce a contractual right under the specific terms of contract of lease agreed to between the company and the Government. Such contractual right, therefore, could not be enforced in writ petition. Har Shankar and others v. The Deputy Excise and Taxation Commissioner and others, (1975)3 S.C.R. 254 : A.I.R. 1975 S.C. 1121, relied on.” In substance, it was a suit for refund of a royally alleged to be unauthorisedly recovered that could not be entertained in exercise of the writ jurisdiction. “In Radhakrishna Agarwal and others v. State of Bihar and others, A.I.R. 1977 S.C. (1977)3 S.C.R 249 , in respect of a contract of lease to collect and exploit sal-seeds forest area, between the respondent-State and the appellant, it was held:” 8. The State acts purely in its executive capacity and is bound by the obligations dealings of the State with the individual citizens import into every transaction entered into exercise of its constitutional powers only at the time of entry into the field of consideration persons with whom the Government could contract at all. The State acts purely in its executive capacity and is bound by the obligations dealings of the State with the individual citizens import into every transaction entered into exercise of its constitutional powers only at the time of entry into the field of consideration persons with whom the Government could contract at all. But, after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by constitutional provisions but by the legally valid contract which determines rights obligations of the parties inter se. “It was further held:” The Patna High Court had very rightly divided the types of cases in which breaches alleged obligation by the State or its agents can be set up into three types: (i) Where petitioner makes a grievance of breach of an obligation of the State in cases where on assurance or representation of, the State, he has acted to his prejudice and detriment the agreement is short of a contract within the meaning of Art.299 of the Constitution, where the contract entered into between the person aggrieved and the Stale is in exercise a statutory power under certain Act or Rules framed thereunder and the petitioner alleges breach on the part of the Slate; (iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities the parties are governed by the terms of the contract and the petitioner complains breach of such contract by the State. The High Court rightly held that the appellants should be placed in the third category where questions of pure alleged breaches of contract are involved and that no writ or order can issue under Art.226 of the Constitution in cases to compel the authorities to remedy a breach of contract pure and simple. “As already observed, that was a case to collect and exploit sal-seeds from forest between the respondent-State and the appellant. Clause (3) in the written contract executed in accordance with the provisions of Art.299 of the Constitution provided for the revision the rate of royalty at the expiry of every three years in consultation with the lessee to be binding on the lessee. Clause (3) in the written contract executed in accordance with the provisions of Art.299 of the Constitution provided for the revision the rate of royalty at the expiry of every three years in consultation with the lessee to be binding on the lessee. Under Clause (4) of the lease, the lessee had to factory within the State of Bihar for processing of sal-seeds and extraction of oil within a period of five years from the date of the agreement, failing which the itself was to terminate. In 1974, the respondent State revised the rate of royalty the appellants and after that, cancelled the lease by a letter dated 15th March, writ petitions were filed challenging the said order. It is worthwhile to quote the observations of their Lordships at page 257:” Learned counsel contends that in the cases before us breaches of public duty are The submission made before us is that, whenever a State or its agents or officers the citizen, either when making a transaction or, after making it, acting in exercise under the terms of contract between the parties, there is a dealing between the citizen which involves performance of “certain legal and public duties.” If we accept this very wide proposition every case of a breach of con tract by the State agents or its officers would call for interference under Art.226 of the Constitution. consider this to be a sound proposition at all. “Again, after considering various decisions of the Supreme Court, their Lordships observed as follows:” We do not think that any of these cases could assist the appellants or is at all None of these cases lays down that, when the State or the officer purport to operate the contractual field and the only grievance of the citizen could be that the contract the parties is broken by the action complained of, the appropriate remedy is by petition under Art.226 of the Constitution and not an ordinary suit. There is a array of authority against such a proposition. “In Lekhraj Sathram Das v. N.M.Shah, A.I.R. 1966 S.C. 334 at 337, Their Lordships observed:” In our opinion, any duty or obligation falling upon a public servant out of a contract into by him as such public servant cannot be enforced by the machinery of a Art.226 of the Constitution. There is a array of authority against such a proposition. “In Lekhraj Sathram Das v. N.M.Shah, A.I.R. 1966 S.C. 334 at 337, Their Lordships observed:” In our opinion, any duty or obligation falling upon a public servant out of a contract into by him as such public servant cannot be enforced by the machinery of a Art.226 of the Constitution. “ In Banchhanidhi Rath v. State of Orissa and others, A.I.R. 1972 S.C. 843, the Supreme held:” If a right is claimed in terms of a contract such a right cannot be enforced in a writ In Har Shankar and others v. The Deputy Excise and Taxation Commissioner and (1975)3 S.C.R. 254 at 265, a Constitution Bench of the Supreme Court held:” The appellants have displayed ingenuity in their search for invalidating circumstances writ petition is not an appropriate remedy for impeaching contractual obligations. “In the instant case, it is not in dispute that the transaction under which the petitioner for refund of security deposit is covered by a contract which is reduced into writing the petitioner and the respondent with respect to felling of silver-oak trees and firewood from the said trees to the respondent in response to the tender notification by the respondent. It contains as many as 39 clauses. Clause 17 runs as follows:” Any delay on the part of the contractor, his agents or workers in commencement conclusion of the operation in the said areas as provided for in these presents will render contract liable to be terminated summarily without notice in which case the amounts already shall be liable to be forfeited to Government. Where the contractor so defaulted, Director is free to have the operations in arrears, carried out departmentally and/or by fixing fresh contract and/or entrusting the work to other persons and the loss, if any, caused to Government on account of the default of the contractor is recoverable from the contractor. 9. Thus it is seen that it is not a statutory contract; but on the other hand, it is statutory one and a contract, pure and simple between the respondent and the petitioner. 9. Thus it is seen that it is not a statutory contract; but on the other hand, it is statutory one and a contract, pure and simple between the respondent and the petitioner. observed by their Lordships in Radhakrishna Agarwal’s case, A.I.R. 1977 S.C. 1496: S.C.R. 249, on the mere fact that the respondent happens to be an officer of the Government, it is not open to the petitioner to invoke writ jurisdiction of this court for the refund of the security deposit which was admittedly paid in pursuance of the terms conditions of the contract. In this case the respondent contends that as per terms conditions of the contract, the department suffered a loss to the extent of Rs.22,840.25 as per the terms of the contract, the petitioner is not entitled to refund of the deposit paying the said loss. The questions whether the respondent has suffered a loss, there is any breach of contract and whether the petitioner is entitled to refund as claimed him are all matters to be agitated in a competent civil court on a properly laid petitioner cannot circumvent the same merely because the contract is between the and the respondent, who happens to be a Government servant. At no stretch of imagination it can be said that it is a statutory contract. The question whether the respondent competent to assess the loss or not is also a matter to be agitated only in a comprehensive suit while interpreting the terms and conditions of the agreement entered into between petitioner and the respondent. The respondent has set out in detail as to how the Department, Ootacamund, suffered loss in the counter statement as well as in the cause notice issued to the petitioner. The respondent has set out in detail as to how the Department, Ootacamund, suffered loss in the counter statement as well as in the cause notice issued to the petitioner. In the circumstances, I have no hesitation in applying the ratio laid down in the above quoted decisions of the Supreme Court to the of this case, that since the relief prayed for in the petition namely refund of the deposit, is in pursuance of a valid contract entered into by the petitioner with respondent, which determines the rights and obligations between the parties inter se, or order can be issued under Art.226 of the Constitution so as to compel the respondent refund the security deposit and earnest money deposit as prayed for by the petitioner is open to the petitioner to seek his remedy for breach of contract pure and simple. 10. In the result, the writ petition fails and stands dismissed. However, there will be no as to costs. 11. This petition having been posted on Wednesday the 7th and Wednesday the 21st November, 1990 for being mentioned in the presence of Mr.N.S.Nandakumar, Advocate the petitioner and of Mr.M.Muthappan, Government Advocate for the respondent and stood over for consideration till this day, the court made the following Order: This matter was posted before this Court for being mentioned, on the letter dated 26.4.1990 given by the learned counsel for the petitioner mentioning that in the steno copy of the in this case furnished to him it was found that the judgments relied on behalf petitioner were not stated and that there is a small discrepancy in the statement of facts. learned counsel for the petitioner requests the court to consider the following decisions, namely, (1) unreported decision in M.Kannan v. The Director, Government Department, Ootacamund, The Nilgiris, W.P.No.12186 of 1983 dated 4.4.1985, Karnataka v. Rameshwara Rice Mills, Thirthahalli, A.I.R. 1987 S.C. 1359, Union of Raman Iron Foundry, A.I.R. 1974 S.C. 1265: (1974)3 S.C.R. 556 and Kesoram Industries Union of India, A.I.R. 1977Cal. 459. In W.P.No.12186 of 1983 the question whether contract is a statutory or non-statutory has not been raised and it was not considered. 459. In W.P.No.12186 of 1983 the question whether contract is a statutory or non-statutory has not been raised and it was not considered. said petition was allowed mainly on the ground that the respondent, the Government Cinchona Department, Ootacamund, is not entitled to withhold the deposit amount for adjusting towards the dues, if any, in respect of other contracts into by the petitioner and the respondent, since there was no clause in the agreement effect. As such, the respondent in that case was directed to refund the same. Such does not arise in this case and hence the said decision is not helpful to the petitioner. State of Karnataka v. Rameshwara Rice Mills, Thirthahalli, A.I.R. 1987 S.C. 1359, laid down was that” the powers of the State Government under an agreement entered by it with a private person providing for assessment of damages for breach of conditions the agreement and recovery of the damages is confined only to those cases where the breach of conditions is admitted or it is not disputed." further held in that case that "the terms of the clause do not afford scope for construction being made regarding the powers of the officer of the State Government adjudicate upon a disputed question of breach as well as to assess the damages arising the breach. Interests of justice and equity require that where a party to a contract the committing of any breach of conditions the adjudication should be by an independent person or body and not by the other party to the contract." It was further held recovery of damages as arrears of land revenue is in accordance with law. That also not relevant to the facts of this case, as in the instant case when the writ petitioner served with the show cause notice, without giving any reply to the notice, has resorted legal action. The petitioner should have sent a reply and put forth all his contentions refund of the amount. It is seen from the counter affidavit filed by the respondent the security deposit in respect of the contracts in XII-B, XH-b and XII-c to the Rs.12,031.75 would be refunded to the petitioner out of the total security Rs.34,872 after recovering the loss of Rs.22,840.25. The only question is, whether respondent is entitled to recover loss and if so, what is the extent. The only question is, whether respondent is entitled to recover loss and if so, what is the extent. That is a matter decided only if the petitioner gave a reply to the show cause notice and if it is not then, he will have to establish his right for enforcing the contract before the competent court. 12. The decision in Kesoram Industries v. Union of India, A.I.R. 1977 Cal. 459, proposition that when a dispute has been raised in respect of cash allowance till such is resolved by adjudication under the process of law, the Government on its own make adjustments of such payments against other funds of the company lying with question of adjusting the amount against other contracts does not arise in this case, the writ petition was mainly dismissed on the ground that the contract in question nonstatutory one and it is a contract pure and simple between the respondent petitioner and in respect of any breach of contract, the remedy is only to approach court and the petitioner is not entitled to invoke the writ jurisdiction relying on the of the Supreme Court reported in Bareilly Development Authority v. Ajay Pal Singh, 1989 S.C. 1076, and the earlier other decisions of the Supreme Court which are in the said decision of the Supreme Court. 13. The decision in Union of India v. Raman Iron Foundry, A.I.R. 1974 S.C. 1265: S.C.R. 556, was relied on for the proposition that the respondent herein has no authority to appropriate the amounts of other pending bills of the petitioner, in or satisfaction of its claim for damages against the petitioner and the High Court is issuing the interim injunction. As already stated, the question of appropriating towards contract or claims does not arise in this case. The only question for consideration is, there is breach of contract on the part of the petitioner and whether the department entitled to recover the loss of Rs.22,840.25 out of the total security deposit of This is to be decided in a properly instituted suit by adducing necessary evidence. decision also is not helpful to the petitioner. Hence, on a careful consideration of the decisions, I am of the view that the petitioner has not made out any case for review earlier order passed on 19.4.1990 and the earlier order will hold good. Petition dismissed.