Judgment :- Tiruchi Construction Company is the petitioner in both the writ petitions. Aggrieved against the order of 2nd respondent dated 4. 1986 terminating the contract, the petitioner has failed W.P. No.11100 of 1986 with further prayer to refer the claims of the petitioner including the various clauses mentioned in the writ petition to arbitration as per Tamil Nadu Standard Specifications. Against the order of the second respondent dated 10. 1986 demanding a sum of Rs.2,70,177 being the excess amount for the completion of the unfinished work in the Agreement No.15/83-84, the petitioner has filed the second writ petition namely W.P. No. 12247 of 1986. If the petitioner is able to succeed in the first writ petition, the notice impugned in the second writ petition has to be quashed, hence by the following order both the above writ petitions can be disposed of. 2. The case of the petitioner is briefly stated hereunder: The petitioner being successful tenderer, entered into an agreement, Agreement No.15 of 1983-84 with respondents 1 and 2 for construction of 11 different types of works at Kumara Perumal Farm Science Center for an aggregate value of Rs.9.40 lakhs-on 5. 1983. The period stipulated for completion of work was six months. The tender was submitted on 20.1.1983 and the same was accepted on 13. 1983. The foundation specification was changed from brick works to random rubble masonry. This was finalised and site handed over only on 10. 1983, five months after date of agreement and ten months after date of tender. Further, there were standing crops in part of the site. The work in respect of quarters could not be taken up. The site was not cleared of the crops and handed over to enable the petitioner to commence work within the stipulated 6 months. From January, 1984 to June, 1984 no work could be done for want of Junior Engineer. In October, 1984 prices of steel were increased by Government of India. Even though respondents 1 and 2 promised to supply cement and steel, they failed to supply the same. The work could not make progress entirely due to the conduct and acts of the respondents 1 and 2 and their staff. They alone were responsible for the delay. In January, 1985 all prices had risen abnormally, hence the petitioner asked for modest increase of 20 per cent in the rates. The work could not make progress entirely due to the conduct and acts of the respondents 1 and 2 and their staff. They alone were responsible for the delay. In January, 1985 all prices had risen abnormally, hence the petitioner asked for modest increase of 20 per cent in the rates. This was not even considered and was ignored. The petitioner never requested for grant of extension of time. The respondent also did not grant extension of time till now. Orally he was asked to continue and complete the work. Tamil Nadu Standard Specifications was not made fully applicable to this “Contract Agreement and works” by the agreement No.15 of 1983-84, dated 5. 1983. By the impugned order, the second respondent informed that the contract was terminated with forfeiture of Earnest Money Deposit, additional security deposit and withheld amount as per Clause 3 of the agreement. But no final measurements were taken of the works done nor final bills prepared and processed till now. The petitioner through their counsel issued a notice on 5. 1986 to the respondents requesting them to refer the dispute to arbitration. They sent a reply on 25. 1986 and a final reply on 16. 1986. However, they did not send any definite reply with regard to the request for arbitration. Thereafter, for the remaining work, the respondents 1 and 2 allotted the same to respondents 3 and 4 by splitting up the work into a piecemeal item-wise. It is submitted that the respondents 1 and 2 have no right to proceed with the works covered by the agreement No.15/1983-84 without finalising the account of the petitioner. As per Tamil Nadu Standard Specifications, the only alternative is to refer the matter to arbitration. To this course also the respondents 1 and 2 have not expressed their willingness. In those circumstance, the petitioner company has approached this Court to refer the matter for arbitration in respect of the points raised in the writ petition. Since without settlement of the claim of the petitioner, respondents 1 and 2 made a claim for Rs.2,70,177 the petitioner has filed the second writ petition challenging the same. 3. The first respondent has filed a separate counter-affidavit in both the writ petitions and the case pleaded by them is briefly stated hereunder: They have admitted the execution of the agreement No.15/1983-84 for a total value of Rs.9,40,047. 3. The first respondent has filed a separate counter-affidavit in both the writ petitions and the case pleaded by them is briefly stated hereunder: They have admitted the execution of the agreement No.15/1983-84 for a total value of Rs.9,40,047. It is contended that the petitioner could not show progress and complete the works as per the agreement, within the time specified. Ultimately, after observing all the required formalities viz., after giving the petitioner sufficient opportunities, the contract was terminated with forfeiture of E.M.D. A.S.D., and withheld amount as per proceedings dated 4. 1986. It is further contended that as per condition No.3 of the agreement entered into between the petitioner and respondents 1 and 2, the work was completed by the respondents with another contractor and the petitioner was called upon to pay the excess amount involved by proceedings dated 10. 1986. They also contended that the delay was solely on account of the petitioner. The petitioner’s interpretation of the rules is misconceived and untenable. The respondents 1 and 2 sent replies then and there. The method adopted by respondents 1 and 2 in calling for fresh tenders entrust the unfinished works to the contracts has been in accordance with law. It is also submitted that the provisions relating to the arbitration could not be complied with because the unfinished work had been done and in view of the fact the value of the contract exceeded Rs.50,000. At any rate, the aforesaid claim cannot be the subject-matter to the proceedings under Art.226 of the Constitution. With these averments, the respondents 1 and 2 prayed for dismissal of the writ petitions. 4. Respondents 3 and 4 in W.P. No.11100 of 1986 have not been represented by any one before this Court. 5. In the light of the above pleadings, I have heard Mr.S. Gopalaratnam, learned Senior Counsel for the petitioner and Mr.R.Muthukumaraswami for respondents 1 and 2. 6. The learned senior counsel for the petitioner after taking me through the various clauses in the articles of Agreement executed between the petitioner construction company and the first respondent University, submitted that inasmuch as the termination of the contract is erroneous, as per the provisions of Madras Detailed Standard Specifications, the petitioner is entitled to approach this Court for appointment of an arbitration to settle the claim of the petitioner. He also submitted that in view of the various clauses in the said agreement and of the fact that the delay was purely on the part of respondents 1 and 2 in an appropriate case, this Court has ample power to appoint an arbitrator in terms of the agreement without driving the petitioner to file a suit to secure his amount. He also submitted that in the interest of justice this Court can itself appoint an arbitrator agreeable by both the parties and after receipt of the award from him, an appropriate order could be passed in the writ petition. On the other hand, Mr.R. Muthkumaraswamy, learned counsel for the respqn-dents 1 and 2 submitted that both the writ petitions are not maintainable, since the writ jurisdiction cannot be applied to enforce terms of an agreement. He further submitted that in view of Sec.20 of the Arbitration Act, 1940, the petitioner can very well work out their remedy by filing appropriate petition. Finally, he submitted that, in any event, the petitioner has not made out a case for arbitration and still if they have any grievance, they have to seek their remedy only before the civil court and not in this Court. 7. I have carefully considered the rival submissions. 8.. There is no dispute mat the petitioner was a successful tenderer and their offer was accepted by respondents 1 and 2: Both the parties entered into an agreement, Agreement No.15/83-84 for construction of 11 different types of works at Kumara Perumal Farm Science Centre for an aggregate value of Rs.9.40 lakhs on 5. 1983. Even at the outset, the learned senior counsel has brought to my notice that the date, month and the year were not filled up in the Articles of Agreement. Likewise, in page 2 of the said agreement, there is also a blank in the second line which reads thus: “AND WHEREAS the contractor has also signed the copy of the...Detailed standard specifications and addenda volume thereto...” However, in the next paragraph, there is a reference of Madras Detailed Specifications. There is also one other clause in page 3. Sub-clause (3) there is a reference viz., “Standard preliminary specification” which, according to the learned senior counsel, only. There is also one other clause in page 3. Sub-clause (3) there is a reference viz., “Standard preliminary specification” which, according to the learned senior counsel, only. In other words, the reading of the first agreement to the contract shows that the parties were intended to be governed as per the various clauses in Madras Detailed Standard Specifications. If that is so, there is Clause 73 which speaks about arbitration which is applicable to the petitioner’s case. On the other hand, it is contention of the learned counsel for respondents 1 and 2 that inasmuch as the value is more than Rs.50,000 as per Clause 69 of Tamil Nadu Standard Specifications, the parties are entitled to apply for arbitration if the value of the claim is less than Rs.50,000. In other words, the learned counsel very much contended that only Clause 69 of Tamil Nadu Standard Specifications alone is applicable to the petitioner’s case and not Clause 73 of Madras Detailed Standard Specifications. As already stated, as requested by the learned senior counsel, I have carefully considered all the clauses in the agreement executed by both the parties wherein it is specifically agreed that subject to the conditions set-forth in the Preliminary specification of the Madras Detailed Standard Specifications... the work has to be completed. In those circumstance, in the light of the specific clause in the agreement itself in several places, I am of the view that the petitioner is entitled to the claim relief under Clause 73 of the Madras Detailed Standard Specifications. 9. Now we have to consider whether the petitioner has made out a case for appointment of arbitration as per Clause 73 and whether this Court has power to issue such direction? in order to answer the first part of the above issue, more factual position has to be verified. On 20.1.1983 the respondent University has called for a tender. On 13. 1983 the petitioner’s tender was accepted .The contract Value is Rs.9,40,047. On 5. 1983 the first respondent accepted the tender of the petitioner. The same was received by the petitioner on 6. 1983. It is relevant to note that the time for completion of work is six months from handing over of the site. It is seen from the affidavit that the . site was handed over finally on 10. 1983. This was accepted in the reply notice dated 16. The same was received by the petitioner on 6. 1983. It is relevant to note that the time for completion of work is six months from handing over of the site. It is seen from the affidavit that the . site was handed over finally on 10. 1983. This was accepted in the reply notice dated 16. 1986 by the counsel for first respondent wherein he has asked the petitioner to wait for some time, since the foundation has to be changed from brick works to random rubble masonry. It is the case of the petitioner that upto 3. 1984 the site was not handed over as there were paddy crops standing which he harvested. The same was admitted in the reply notice referred above. From January to June, 1984 according to the petitioner, no Engineer was in-charge of the site and because of that he could not to the work. Thereafter, in October, 1984 the Government increased the steel prices. On 12. 1985 the petitioner’s counsel sent a detailed letter followed by Telegram on 26. 1985. After exchange of several letters, on 4. 1986 the Estate Officer terminated the agreement. On 5. 1986 Mr.P.K. Jamal Mohamed, counsel for the petitioner sent a notice for which Mr.C.Venkatachalapathy, counsel for the first respondent sent a reply on 16. 1986. In the light of the various averments made by the petitioner in the argument and as highlighted by the learned senior counsel, the reply dated 16. 1986 sent by the counsel for the first respondent is useful for our decision, hence I am extracting some of the relevant portions hereunder: “4. With regard to the time factor, it is stated that it is unavoidable, rather inevitable, when a decision had to be taken to entrust such major works to contractors. There is no inordinate delay in sending the orders of acceptance. 6. The statement made in your notice that when your clients approached Assistant Executive Engineer to continence the work, they were asked to wait for some time since the foundation has to be changed from Brick Work to Randum Rubble Masonry, is only for a very minimum period which is ignorable. In the.case of civil constructions works, small changes to suit to the needs like specifications or design are not common. 9.. In the.case of civil constructions works, small changes to suit to the needs like specifications or design are not common. 9.. ...Their acceptance of the work, is a clear estoppel that they were prepared to admit the small delay till the harvest was over. 12. The escalation in cost of materials is a common feature and the tenders have to take into account such anticipated escalation within the time schedule for the completion of the works. 15.... There cannot be even a single instant of delayed payment without valid. 17....As already stated, had the contractors completed the work in the prescribed time, they could have avoided the escalation in the prices. 21.... Having failed to do so, they proved themselves that they were prepared to abide by the conditions and for a little delay caused due to administrative reasons that became unavoidable. 26. As already pointed in the agreement, there is no provision to refer the case to an Arbitration.” As already stated, the events commencing from 20.1.1983 ending with the termination of contract show that the petitioner could not complete the works due to various reasons, to some extent, the respondents 1 and 2 were responsible as admitted by the counsel for the 1st respondent in the reply notice dated 16. 1986 which I have already extracted above. Prima facie I am of the view that the petitioner has established a case for appointment of an Arbitrator as per Clause 73 of Madras Detailed Standard Specifications. .10. Finally, now we have to decide whether this Court is competent in a proceeding initiated under Art.226 of the Constitution of India to issue such direction or appoint an Arbitrator in pursuance of contract of agreement. In support of the objection raised, Mr.R. Muthkumaraswamy relied on a decision of the Supreme Court in Radhakrishna Agarwal v. State of Bihar, A.I.R. 1977 S.C. 1496. In the said decision, the apex Court has held that if a right is claimed in terms of a contract such a right cannot be enforced in a writ petition. The other decision cited by him is a Division Bench decision of this Court reported in Nagappattinam Municipality v. Patanivplu, I.L.R. (1994)2 Mad. 465. In the said decision, the apex Court has held that if a right is claimed in terms of a contract such a right cannot be enforced in a writ petition. The other decision cited by him is a Division Bench decision of this Court reported in Nagappattinam Municipality v. Patanivplu, I.L.R. (1994)2 Mad. 465. In the said decision, the Division Bench of this Court relying on an earlier decision of the Supreme Court has held that where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only 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. 11. On the other hand, the learned counsel for the petitioner brought to my notice file recent decision of this Court in Writ Appeal No.1049 of 1994 and C.M.P. No.2l79 of 1997 as well as Writ Appeal No.1285 of 1994 and C.M.P. Nos.17986 of 1996 and 1548 of 1997. In those cases, the learned single Judge of this Court refused to issue a writ under Art.226 of the Constitution of India and directed the parties to work out their remedy before the civil court and claim compensation in respect of death, of their son. In appeal, the Division Bench referred above appointed an Arbitrator to adjudicate the claim of the parties and thereafter passed a decree on the basis of the award of the Arbitrator. Relying on the above decisions, a request was made that in this case also in view of the long battle in this case also in view of the long battle right from 1983 for appointment of an Arbitrator keeping the writ petition pending. After going through the two Division bench decisions of this Court, I am of the view that same direction cannot be issued in this case, since in those cases the claim was made by the parents who lost their children by way of electrocution. It is a simple case wherein the Arbitrator (a retired District Judge was appointed as Arbitrator in the case) fixed the compensation based on the age of the deceased child, family status, age of the parents etc., and subsequently the same was accepted by the Bench followed by a decree. It is a simple case wherein the Arbitrator (a retired District Judge was appointed as Arbitrator in the case) fixed the compensation based on the age of the deceased child, family status, age of the parents etc., and subsequently the same was accepted by the Bench followed by a decree. Here the Arbitrator has to consider the case of the petitioner as well as respondents 1 and 2 right from the date of the execution of the agreement namely 5. 1983 till the date of termination of the contract i.e., on 4. 1986. Further, it requires more evidence in the form of oral and documentary and a technical person at the level of Superintending Engineer has to consider the case of both parties. In view of the above circumstance, I am not in a position to adopt the method followed by the Division Bench in the above referred cases. .12. No doubt, the decisions referred by Mr.R. Muthkumaraswamy shows that if a party wants to enforce a contract, it is not possible for this Court to grant relief under Art.226 of the Constitution. However, in our case, even though there is a specific Clause 73 which deals with appointment of arbitrator in case of any dispute or difference between the parties to the contract, respondents 1 and 2 erroneously rejected the request of the petitioner. Moreover, in the reply notice given by the counsel for the first respondent, he has mentioned that there is no provision to refer the case to arbitration. The conclusion in the reply , notice is erroneous. The respondents 1 and 2 who are functionaries of the State Government amenable to the jurisdiction of this Court failed to act on the basis of the specific clause in Madras Detailed Standard Specifications. In the interest of justice, I am of the view that this Court can issue necessary direction to the petitioner to approach the competent court having jurisdiction as per Sec.20 of the Arbitration Act, 1940. At this stage, it is relevant to note that as per Sec.85 of Arbitration and Conciliation Act, 1996 notwithstanding the repeal of Arbitration Act, 1940, the provision of the said enactment shall apply in relation to arbitraral proceedings which commenced before the 1996 Act. At this stage, it is relevant to note that as per Sec.85 of Arbitration and Conciliation Act, 1996 notwithstanding the repeal of Arbitration Act, 1940, the provision of the said enactment shall apply in relation to arbitraral proceedings which commenced before the 1996 Act. In view of the fact that the dispute arose in this ease prior to the Arbitration and Conciliation Act, 1996 and in view of the saving clause namely Sec.85 of the Arbitration and Conciliation Act, 1996, the court can very well direct the parties to approach the appropriate court by invoking Sec.20 of the Arbitration Act, 1940. I am constrained to arrive at this conclusion, since from 1983 onwards, the claim of the petitioner is not settled. I am of the view that at this juncture, the respondents as stated earlier, an organisation of the State Government should honour its legal obligations arising out of the contract and not drive the citizen like the petitioner to file a suit for recovery of the amount. As observed by the Apex Court in Hindustan Sugar Mills v. State of Rajasthan, A.I.R. 1981 S.C. 1681 in democratic society Governed by the rule of law, it is the duty of the State, its organisations and their officers to do what is fair and just to me citizen and they should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand. 13. Under these circumstances, the impugned order dated 4. 1986 in W.R No.11100 of 1986 is quashed and there shall be a direction to the respondents 1 and 2 to refer the claims of the petitioner including the issues and questions mentioned in clause (a) to clause (f) in the said writ petition as per Clause 73 of Madras Detailed Standard Specifications within a period of eight weeks from the date of receipt of a copy of this order. On such reference and appointment, the Arbitrator is directed to consider the case of both parties and complete the arbitration proceedings within a period of six months thereafter. 14. In view of my order in W.P. No.11100 of 1986, the demand made by the second respondent in his notice dated 10. 1986 is quashed. 15. Net result, both the writ petitions are allowed as stated above. However, there will be no order as to costs.