ORDER The petitioner has filed the present writ application for quashing the order dated 31st July, 96 passed by the Executive Engineer, Irrigation Department, Garhi Division (respondent no. 6) cancelling the contract for construction work of spill way under upper Kiul reservoir scheme and forfeiting the security money on the ground that the petitioner has not completed the work within the stipulated period as well as extended time, for quashing the tender notice published in daily Hindi 'Aaj' inviting tender for the rest construction work of the aforesaid scheme and for a direction to the respondent to allow the petitioner to complete the work at the old rate and pay the dues of the petitioner including the earnest and security money. A copy of the order dated 31st July, 1996 and tender notice dated 3.8.96 have been annexed as Annexures-22 & 1 respectively. 2. In the year, 1988 tender notice was issued inviting tenders from the desirous contractors for construction of spill way under Kiul reservoir scheme (hereinafter referred to as the scheme) at the estimated cost of Rs. 1,43,71,000/-. The petitioner applied in pursuance of the aforesaid notice and the work was allotted to him under agreement Form No. 15 F 2 of the year, 1989-90. The agreement value being Rs. 1,49,45,84 (sic) lacs. On 6.7.89 the work order (Annexure-3) was issued and the period of completion of the contract work was 14.10.90. 3. According to the petitioner it proceeded with the work and the work progressed to the satisfaction of the authorities and continued upto March, 1990 and account bills were passed and paid. After March, 1990 the work stopped due to non-availability of cement. The petitioner represented the matter times without number and again as cement was supplied the contract work started and continued upto December, 1990, thereafter, again work was stopped and the petitioner wrote several letters and represented the matter to the respondents to make available cement and also claimed money for keeping idle labourers and for watching the materials at the spot. The Chief Engineer on 20th August, 1992 found some fault in design of stock lock gate of the spill way and as such the work was stopped indefinitely as a result of which no further progress was made in the work allotted to the petitioner. However, the period of extension was extended time to time upto 20th July, 1994. 4. The Chief Engineer on 20th August, 1992 found some fault in design of stock lock gate of the spill way and as such the work was stopped indefinitely as a result of which no further progress was made in the work allotted to the petitioner. However, the period of extension was extended time to time upto 20th July, 1994. 4. On 26th December, 1995 the Executive Engineer in anticipation of release of fund directed the petitioner to arrange the materials etc. at the site so that the anticipated fund may be utilised at the spot vide Annexure-10. The petitioner arranged the materials. On 3rd January, 96 the Executive Engineer vide .Annexure-11 asked the petitioner whether it was willing to do the work at the old rate and if it will not send reply or the same by 10.1.96 then it will be presumed that it is not interested in completion of the work and in that event the final measurement of the work will be done. After receipt of the aforesaid letter the petitioner agreed to do the work at the same rate. However, subsequently, it demanded higher rate for sending the materials at a longer place. While the work was in progress the Chief Engineer on 19.6.96 asked the petitioner to complete the work by 15th July, 96 which direction was communicated to the petitioner vide letter dated 21.6.96, a copy of which has been annexed as Annexure7. Inspite of the several odds including the problems created by the local people the petitioner proceeded with the work. However, on 31st July, 96 the contract was cancelled and tender was invited for execution of the remaining work under the scheme. 5. The petitioner has challenged the aforesaid action of the respondents on the ground that the cancellation of the contract has been one without affording an opportunity of hearing to it. The respondents have acted arbitrarily in the sense that there was no fault on the part of the petitioner and the work could not be completed due to non-supply of the materials or stoppage of the work by the respondents and even then they have cancelled the contract and invited the tender to get the work at a higher cost. 6. The stand of the respondent State is that from the very beginning the progress of the work was very slow and was not up to the mark. 6. The stand of the respondent State is that from the very beginning the progress of the work was very slow and was not up to the mark. The petitioner could not do the entire work value of the contract within the stipulated period. In terms of agreement upto December, 96 the petitioner had completed the work upto 30% of the gross value of the work. From January, 1991 to January, 1992 the work could not be done due to non-availability of the cement. From February, 1992 to June, 1992 the petitioner could do the work i.e. 42% of the total value of the work. On 20.8.92 the department suspended the work for the finalisation of the stop lock gate h the drawings for which the petitioner was entitled to get the extension of time and extension of time was granted to him. It is further stated that the petitioner was neither engaging sufficient labourers nor procuring drilling machine nor procured construction materials and machine as a result of which there was complete failure on the part of the petitioner in execution of the work in terms of the agreement. The authorities decided to terminate the contract due to aforesaid failure on the part of the petitioner. Thereafter, the petitioner agreed by letter dated 3.1.96 to complete the work at the old rate, a copy of which has been annexed as Annexure-G to the affidavit. However, inspite of the aforesaid undertaking the petitioner did not complete the work and thereafter the agreement was rescinded by letter dated 14.5.96 by the Executive Engineer, a copy of which has been annexed as Annexure-C to the affidavit. On 16.5.96 a fresh tender was invited. However, the petitioner requested that it should be given time to complete the work and also signed on the work programme on 8.6.96. On 16.5.96 a fresh tender was invited. However, the petitioner requested that it should be given time to complete the work and also signed on the work programme on 8.6.96. The Chief Engineer by letter dated 19.6.96 vide Annexure-L granted time to complete the work by 15.7.96, which was communicated to the petitioner by the Executive Engineer by letter dated 21.6.96 vide Annexure-M, even then the petitioner did not complete the work in terms of the undertaking given by him and thereafter the contract was finally rescinded by order dated 31st July, 96 and steps have been taken to get the remaining work done by another agency and two public undertaking, namely, Bihar State Construction Corporation and Rashtriya Pariyojna Nirman Nigam have filed their tenders and that is under consideration of the department. 7. Thus, the stand of the State is that some time work was stopped due to non-availability of cement as well as change of design but the period extended on that account. The petitioner did not do even the work which it had to do such as earth work etc. for which the cement was not required within the stipulated time. As such its contract has rightly been rescinded. It is also stated that the contract is not statutory contract and the right of the parties is to be determined according to the terms of the contract and the petitioner has remedy under the agreement for redressal of his grievance and the writ is not an appropriate remedy. 8. During the pendency of this case this Court by order dt. 1.10.96 directed the Secretary, Water Resources Department to go through the records and if necessary visit the site and submit a report as to who is at fault. The Secretary after hearing the petitioner and the respondents and also perusal of the records has submitted a report. The relevant portion of the report is as follows: "1. The performance of the Contractor during the agreement period appears to be quite poor. Even if non-availability of cement is accepted for part period the progress of work on non-cement items was not satisfactory. The Contractor has depended upon the letter dated 24.1.90 asking him to stop work. This letter does not form part of the petitioners annexures or averments in the writ petitions. This is strange. These are issued from Camp Office (Annexure-II). Even if non-availability of cement is accepted for part period the progress of work on non-cement items was not satisfactory. The Contractor has depended upon the letter dated 24.1.90 asking him to stop work. This letter does not form part of the petitioners annexures or averments in the writ petitions. This is strange. These are issued from Camp Office (Annexure-II). Therefore, the petitioner should be asked to file this letter officially in Court. Because of time constraint the background to the issue of this letter could not be ascertained as it was not part of the official records brought by the Chief Engineer and his team. I have separately directed him to ascertain this. Eventually, the changed design of stop long gates only made it necessary to lengthen the piers. This in no way would have required stoppage of work of excavation and anchoring and even construction of piers as originally designed. Also the contractor did some anchoring work in 1990-91. Therefore, there is no reason why this work could not have been done substantially as cement was not required and funds were available. It is also not quite clear why even if such letter was issued, the contractor did not discuss the matter with superior authorities because work in time is in mutual interest. It is also to be noted that this work was prerequisite for work of piers etc. which would have required more cement and that work could have also progressed when cement became available thereby not causing much physical harm during the short periods cement was not available. Evidently, therefore, this is a period of mixed responsibility but the contractor must take fair share of the blame. 2. The same should supply to the period upto August, 1992. In both periods, short supply of cement is accepted by the department. 3. In August, 1992 Chief Engineer stopped work because of design problem. Later funds were not available. 4. It is to be noted that for all these periods extension was allowed to the contractor. 5. As far as 1996 is concerned, it is the contractor who has agreed to work on the old rates, not once but twice. In a manner of speaking, all the arguments and reasons for earlier delay become some-what redundant, following the contractor's clear and unequivocal acceptance of the old rates. 5. As far as 1996 is concerned, it is the contractor who has agreed to work on the old rates, not once but twice. In a manner of speaking, all the arguments and reasons for earlier delay become some-what redundant, following the contractor's clear and unequivocal acceptance of the old rates. At this time the department was quick to respond to problems and also increase supervision so that progress of works takes place. Neither of the reasons advanced by the contractor justify the poor performance during this period. 6. In conclusion, therefore, it can be said that responsibility for delay during the agreemented period and upto first extension can be shared, although I feel a more committed agency could have done much more substantial work during this period. Nevertheless, the Departmental Field Officers cannot escape the blame. From August, 1992 to end, 1995 the department could not provide funds for this project. The poor performance for the short period in 1996 should be the responsibility of the contractor. 7. These are my prima facie findings. Considering the long period, the issues involved and large number of officers from whom clarifications may have to be sought, it would require a detailed investigation by a team. There is also a clause in the Agreement regarding Arbitration." 9. The facts narrated above show that the dispute between the parties is purely contractual as admittedly the petitioner has entered into an agreement with the State Government in Form F-2 and rights and obligations of the parties are governed by in terms of the agreement. 10. It is well settled that the State and its instrumentalities have to conform to the requirement of Article 14 of the Constitution of India, of which non-arbitrariness is a significant facet. Every action of the State Government must be informed by reason. Even in contractual field Government or its instrumentality cannot act arbitrarily. However, when the contract has been entered into between the parties then the rights and liabilities are to be determined according to the terms of the contract and the Court will be slow to interfere in such matters especially when there is a controversy about factual matters. 11. In this case, as stated above, the petitioner entered into an agreement to complete the work within a particular time i.e. 14.10.90. During this period it did not complete the work. 11. In this case, as stated above, the petitioner entered into an agreement to complete the work within a particular time i.e. 14.10.90. During this period it did not complete the work. However, there was some delay in supply of the materials and due to change in design and drawings but the petitioner did not do even the earth work etc., for which neither the cement was required nor the design was changed with regard to the same. Later on when the contract was rescinded in May, 96 the petitioner itself filed a petition that it will complete the work at the old rate by 15th July, 96 but it did not complete the work and thereafter the contract has been rescinded. 12. There is assertion and counter assertion. Both the parties are blaming each other for the fault in non-completion of the contract. This requires investigation of factual matters after taking into consideration the terms of the agreement. The Secretary of the Water Resources Department, has also found that the petitioner did not complete the work during the extended period. In my view, this disputed question of fact cannot be decided in a writ jurisdiction and an appropriate remedy for the petitioner is to seek remedy as provided under the agreement. 13. So far the submission advanced on behalf of the petitioner that the contract has been rescinded without giving an opportunity of hearing to it is concerned, the same is without any substance for the reason that the contract was cancelled on 14.5.96 and the petitioner was informed about the said decision by registered letter and therefore the petitioner appeared and agreed to complete the work by 15th July, 96 and because of this no further action was taken. When it did not complete the work the order dated 31st July, 96 has been passed cancelling the contract and as such it cannot be said that the order was passed behind the back of the petitioner. He had knowledge of the impugned order and represented the matter. The other submission that the rule of natural justice is attracted in the case is also without any substance for the reason that if the matter is purely governed by contract/agreement between the parties then it is not necessary to observe the principle of natural justice. 14. He had knowledge of the impugned order and represented the matter. The other submission that the rule of natural justice is attracted in the case is also without any substance for the reason that if the matter is purely governed by contract/agreement between the parties then it is not necessary to observe the principle of natural justice. 14. For the aforesaid reason the writ jurisdiction is not an appropriate remedy in this case and the petitioner may pursue an appropriate remedy available in terms of the agreement for redressal of its grievance. 15. In the result, there is no merit in this application and the same is dismissed.