Judgment Nagendra Rai, J. 1. Both the appeals arise out of the same order and as such they have been heard together and are being disposed of by this common judgment. 2. The appellant, Bihar Tourism Development Corporation (for short the Corporation) of L.P.A. No. 372 of 2000 and appellant Sunil Kumar Singh of L.P.A. No. 432 of 2000, who was Managing Director of the Corporation at the relevant time, have filed the present appeal against the order dated 3.2.2000, passed by a learned Judge in C.W.J.C. No. 2682 of 1999, by which he has directed the Corporation to pay the dues to the writ petitioner-respondent under the contract entered into between it and the appellant Corporation for construction of a cafeteria at Nalanda, together with interest @ 11% with effect from 15.9.1994 till the date of payment. The learned Single Judge has also ordered that cost of Rs. 25,000/- should be paid by appellant S. K. Singh, Managing Director and A. K. Singh, Manager (Administration) of the Corporation to the extent of half and half. He has further ordered that let the condemnation of this court be entered in the personal character tolls of the aforesaid two officials of the Corporation, who are guilty of misconduct and wilful disregard of the orders of this Court. 3. The Corporation has filed the appeal against the order for payment of amount together with interest, whereas, said S. K. Singh has filed the appeal against the stricture and remarks passed against him as well as against the order directing for payment of cost. 4. The factual matrix relevant for disposal of the present appeals are that an agreement was entered into between the Appellant-Corporation on the one hand and respondent-M/s Roy Construction & Co. (for short the Contractor) on the other hand for construction of a cafeteria at Nalanda. The agreement was entered into on 5.9.1991 and the work order was issued on the same day. According to the work order, the work was to be completed within nine months, i.e. by 5.6.1992. The total contractual amount was Rs. 9,26,500/-, but the total value of the work given to the Contractor was Rs. 7,86,347.93. The agreement was entered into on 5.9.1991 and the work order was issued on the same day. According to the work order, the work was to be completed within nine months, i.e. by 5.6.1992. The total contractual amount was Rs. 9,26,500/-, but the total value of the work given to the Contractor was Rs. 7,86,347.93. According to the contractor, it completed the work and handed over the possession of the cafeteria to the Corporation on 2.2.1993, whereas, according to the appellant-Corporation the work was completed on 15.9.1994 beyond the period fixed in the agreement for completion of the work. The contractor requested for settlement of its claim but the same was not done by the Corporation. Thereafter, it filed C.W.J.C. No. 10452 of 1995 for a direction for payment of dues and the said matter was finally disposed of on 30.7.1996 by a learned Single Judge of this court, who directed the contractor to make a representation for payment of Rs. 61,195.77 before the Managing Director of the Corporation and on such representation being filed, the Managing Director of the Corporation was directed to consider the matter and pass an appropriate speaking order directing the payment of the amount to the contractor due within six weeks period. When the order was not passed by the Corporation within time then the contractor filed M.J.C. No. 3110 of 1996 and during the pendency of the M.J.C. application on 22.9.1997, the Managing Director rejected the representation of the contractor. He found that the work was not completed within the stipulated period and as such in terms of conditions no. 2 and 3 of the agreement in Form-2, 5 per cent of the contractual amount i.e. Rs. 42,500/- has to be deducted as compensation. Accordingly, he deducted the said amount and ordered that Rs. 310.45 was to be paid by the contractor to the Corporation. 5. In view of the aforesaid order, the M.J.C. application was permitted to be withdrawn and the contractor filed the writ application, out of which these two appeals arise, challenging the same. A copy of the said order was annexed as An-nexure 3 to the writ application. 6. 310.45 was to be paid by the contractor to the Corporation. 5. In view of the aforesaid order, the M.J.C. application was permitted to be withdrawn and the contractor filed the writ application, out of which these two appeals arise, challenging the same. A copy of the said order was annexed as An-nexure 3 to the writ application. 6. Learned counsel appearing for the appellants in both the appeals has submitted that the dispute between the parties arose out of a non-statutory contractual matter and for such dispute, the writ under Article 226 of the Constitution of India was not an appropriate remedy specially when for breach of the term of the agreement in Form-2, remedy of arbitration was available. The contractors allegation was that in breach of the term of the contract, the payment was not being made. This court under Article 226 cannot compel any authority to remedy the breach of non-statutory contract where rights of the parties are governed by the terms of the contract and the parties have to seek remedy available under the said agreement or in the ordinary suit. It was further submitted that there was a controversy about completion of the work in terms of the agreement and the decision on the said question has to be arrived at after going into the factual matters, including appreciation and rejection of documents, which cannot be done in exercise of the power under Article 226. It was further submitted that the remarks made against the Managing Director as well as against the Manager (Administration) were wholly unjustified and uncalled for, specially when the learned Single Judge has not given a finding that the payment was not made to the contractor even after completion of the work within the stipulated period. 7. Learned counsel for the respondent-contractor, on the other hand, submitted that the work was completed within time, but as the contractor was being harassed, it came to this court and despite the direction issued by this court, the payment was not made and when a contempt application was filed, the impunged order was passed rejecting the claim on wholly untenable and arbitrary ground. 8. The State and its instrumentalities should act in a just and fair manner and they cannot be permitted to act in any field of its activities, contrary to law. 8. The State and its instrumentalities should act in a just and fair manner and they cannot be permitted to act in any field of its activities, contrary to law. In other words, their action should be in- formed by reason and absence of reason may amount to arbitrariness on the part of the authorities. It is equally well-settled that the action of the State including in the contractual matter, falls within the pur- view of the judicial review to test its validity on the anvil of Acticle 14. 9. In the case of Shrilekha Vidyarthi V/s. State of U.P., reported in 1991(1) S.C.C. 212 , the Apex Court held that even in the contractual matters, the State has duty to act fairly, justly and reasonab- ly and the requirement of Article 14 should extend even in the sphere of contractual matters. In paragraph 24 of the said judg- ment, it was held as follows : "The State cannot be attributed the split personality of Dr. Jekyll and Mr. Hyde in the contractual field so as to impress on it all the characteristics of the State at the threshold while making a contract requiring it to fulfil the obligation of Article 14 of the Constitu- tion and thereafter permitting it to cast off its garb of state to adorn the new robe of a private body during the sub- sistence of the contract enabling it to act arbitrarily subject only to the con- tractual obligation and remedies flow- ing from it. It is really the nature of its personality as State which is significant and must characterise all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual engaged in similar activities, being primarily for personal gain, which may or may not promote public inter- est. There is a basic difference between the acts of the State which must invariably be in public interest and those of a private individual engaged in similar activities, being primarily for personal gain, which may or may not promote public inter- est. Viewed in this manner in which we find no conceptual difficulty an anachronism, we find no reason why the requirement of Article 14 should not extend even in the sphere of contractual matters for regulating the conduct of the State activity." 10. Again in the case of Tata Cellular V/s. Union of India, reported in (1994) S.C.C. 651, the Apex Court held that even in contractual matters, the principles of judicial review would appiy and in case the State is found to have violated the principle laid down in Article 14 of the Constitution, it will interfere in the matter. In this connection, reference may be made to paragraphs 70 and 71 of the judgment, which run as follows : "70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness of favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary manner. Of course, if the said power is exercised for any collateral purpose, the exercise of that power will be struck down. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide the matter whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review." 11. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide the matter whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review." 11. Thus, it is well-settled that even in contractual matters entered into between the private parties and State or its instrumentalities, the authorities are required to act justly, fairly and reasonably and their arbitrary action is subject to judicial review. However, the Apex Court has made a distinction between the pre-contract stage i.e. when the contract is to be entered into by inviting tenders etc. and the concluded non-statutory contract entered into between the private party and the State or its instrumentalities in its executive capacity. In the case of nonstatutory ordinary concluded contract entered into between the private party and the State or its instrumentalities under Article 12 of the Constitution of India, in its executive capacity, the relations between the parties are not governed by the constitutional provisions, but by the terms of the contract, which determine the rights and obligations of the parties and the writ is not the appropriate remedy in such a case. Reference in this connection may be made to the cases of Radhakrishna Agarwal V/s. State of Bihar, reported in A.I.R. 1977 S.C. 1496, Premji Bhai Parmar V/s. Delhi Development Authority, reported in A.I.R. 1980 S.C. 738, D.F.O. V/s. Biswanath Tea Company Ltd., reported in A.I.R. 1981 S.C. 1368 and Bareilly Development Authority V/s. Ajay Pal Singh, reported in A.I.R. 1989 S.C. 1076. In the last case the Appex Court in paragraph 20 held as follows : "This finding, in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shettys case there was no concluded contract as in this case. Even conceding, that BDA has the trappings of a State or would be comprehended in other authority for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the right and obligation of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field." 12. Thus, in a non-statutory contract entered into by the State or its instrumentality or other authority in its executive capacity, the rights of the parties will be governed by the terms and conditions of the agreement and if the agreement provides for arbitration clause or any other alternative remedy, Article 226 is not available as held by the Apex Court. 13. The contract between the parties in the present case is a non-statutory and according to the terms of the agreement in a case of dispute, the parties have to take recourse to the arbitration clause as provided in Clause 23 of the conditions of the contract. 14. Clauses 2 and 3 of the conditions of contract provide for payment of compensation by the contractor in case the work is not completed within the stipulated period. The stand of the Corporation from the very beginning was that the contract was not completed within time. Even the learned Single Judge has not found that the contract was completed within time. On the other hand, he has found that there was some delay in completion of the contract, but even then he has allowed the prayer of the contractor for payment of the amount claimed by it. As the contract was not completed within time, the Corporation in terms of the agreement was entitled to claim compensation from the amount, which was pay-able to the contractor and the action of the Managing Director in passing the impugned order cannot be held to be either unjust, arbitrary or impermissible in law. 15. This apart, the instant one was not a case where the learned Single Judge should have directed for payment of money without deducting the compensation, which was recoverable by the Corporation for breach of the terms of the contract. The proper direction should have been to direct the contractor to take recourse to the remedies as provided under the terms of the agreement. 16. The proper direction should have been to direct the contractor to take recourse to the remedies as provided under the terms of the agreement. 16. While disposing of the matter, the learned Single Judge has passed serious strictures and remarks against appellant S.K. Singh Managing Director and A.K. Singh, Manager (Administration), who has sworn the affidavit in this case. The strictures and remarks passed against them are as follows : "The delay and arbitrariness attributable to the bureaucracy of this State has become proverbial. The Corporation has been completely unmindful of the delay it caused in processing the bills of the petitioner. The construction was completed on 15.9.94, and the representation has been finally disposed off by the impugned order dated 22.9.97, which is in gross violation of this courts order dated 30.7.96 (An-nexue 1). This Court had directed the Managing Director to dispose of the petitioners representation within six weeks, i.e. on or before 15.9.96, whereas the same was disposed of on 22.9.97, after the delay of one year, and that too after contempt proceeding was initiated in this court. It is to the despair of this court that hardly any order of this Court is implemented without the threat of action in contempt proceeding, to the utter harassment of the petitioner and the chagrin of this court. The administration in this State seems to be in the abyss of despair, & this Court at a loss how to protect the citizen from the misgovernance & un-governance in this State. On being questioned, learned counsel for respondent nos. 2 to 5 is unable to explain the gross delay which stares in the face of S.K. Singh, the Managing Director, in passing the impugned order in utter violation of this Courts order. So much for the conduct of S.K. Singh, the Managing Director of the Corporation. This court strongly condemns his inaction which speaks of an irresponsible approach towards the orders of this court and gross dereliction of his essential duties & functions. 7.1 The counter affidavit of the Corporation has been sworn by one Ashok Kumar Sinha, Manager (Administration) of the Corporation, who has made an unsubstantiated & irresponsible statement in paragraph 5 of the counter affidavit reproduced hereinabove that the work executed by the petitioner was unsatisfactory. 7.1 The counter affidavit of the Corporation has been sworn by one Ashok Kumar Sinha, Manager (Administration) of the Corporation, who has made an unsubstantiated & irresponsible statement in paragraph 5 of the counter affidavit reproduced hereinabove that the work executed by the petitioner was unsatisfactory. On the contrary, it is manifest from a plain reading of Annexure 5 that the Executive Engineer had on a local inspection found the work to be satisfactory. This court deems it tobe a brazen attempt on the part of Ashok Kumar Sinha to mislead this court. X X X X 9.........The cost of this writ petition is quantified at Rs. 25,000/-, which shall be paid personally by S.K. Singh, Managing Director and A.K. Sinha, Manager (Administration), half and half each to the petitioner along with the aforesaid sum of Rs. 61,196.77 P. Let the condemnation of this court be entered in the personal character roils of the aforesaid two officials of this Corporation, who are guilty of misconduct and wilful disregard of the orders of this court." 17. This court has neither money power nor police power. Its source of power is peoples confidence. It commands respect because of its unbiased and impartial approach in the administration of justice. The Judges are required to act with sobriety, moderation and restraint. Use of harsh and disparaging remarks against the persons and the authorities, whose conduct falls under consideration, is to be avoided unless the same is necessary for the decision of the case. The Apex Court in the case of Niranjan Patnaik V/s. Sashibhusan Kar, reported in (1986) 2 S.C.C. 569 , held in paragraph 24 as follows : "It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities, whose conduct comes into consideration before courts of below unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct." 18. In the case of Abani Kanta Ray V/s. State of Orissa, reported in 1995 Supp. (4) S.C.C. 169, the Apex Court in paragraph 15 held as follows : "Use of the intemperate language or making disparaging remarks against anyone unless that be the requirement of deciding the case, is in consistent with judicial behaviour. In the case of Abani Kanta Ray V/s. State of Orissa, reported in 1995 Supp. (4) S.C.C. 169, the Apex Court in paragraph 15 held as follows : "Use of the intemperate language or making disparaging remarks against anyone unless that be the requirement of deciding the case, is in consistent with judicial behaviour. Written words in judicial orders from permanent record which make it even more necessary to practice self restraint in exercise of judicial power while making written orders. It is helpful to recall this facet to remind ourselves and avoid pitfalls arising even from provocation at times." 19. In the case of P.K. Dave V/s. Peoples Union of Civil Liberties (Delhi), reported in A.I.R. 1996 Supreme Court 2166, the Apex Court held as follows : "It is also a cardinal principle that a Judge should take special care in making disparaging remarks against a person or authority whose conduct comes in for consideration before him in any case to be decided by him and should not make any uncalled for remarks, which would be against the judicial discipline. If the relief sought for can be given to the applicant without dubbing the conduct of the person concerned to be mala fide then the Court should refrain from coming to any conclusion on mere assertions inasmuch as the allegations of mala fide have to be specifically made and would have to be established by the person, who seeks relief on that ground. To avoid harsh words and intemperate language and to have self restraint is a part of judicial training of a Judge and, therefore, a Judge should be extremely careful while commenting upon the conduct of the other individual particularly when that individual is not before the Court." (Underlining is mine) 20. In the light of the settled law, it has to be seen as to whether the disparaging remarks against the said two officers recorded by the learned Single Judge were at all justified or not. The Managiing Director Shri S.K. Singh, no doubt, made some delay in disposal of the case, but for that the court, dealing with the contempt matter did not proceed against him. The representation filed by the contractor was disposed by him in terms of the agreement entered into between the parties and he deducted the amount of compensation for non-completion of the work within time. The representation filed by the contractor was disposed by him in terms of the agreement entered into between the parties and he deducted the amount of compensation for non-completion of the work within time. Even assuming that he committed error in rejecting the claim of the contractor, the same does not warrant using strong and disparaging language against the Managing Director S.K. Singh. He had to decide the matter and which he can decide rightly or wrongly. In case of wrong decision, the matter can be corrected in accordance with law, but on that ground he cannot be condemned in the way as has been done in the present case. 21. So far as the case of Shri A.K. Sinha, Manager (Administration) is concerned, he has been condemned on the ground of his having made an irresponsible statemnet in paragraph 5 of the counter-affidavit. According to the learned Single Judge in paragraph 5 he has made a statement that the work executed by the contractor was unsatisfactory, whereas, the Executive Engineer in his letter (Annexure 5) has mentioned that the work was found to be satisfactory and on the said basis has held "This court deems it to be a brazen attempt on the part of Ashok Kumar Sinha to mislead this court." In our view, there was no reason to come to the aforesaid conclusion. Annexure 5the letter of the Executive Engineer does not show that the work was satisfactory, on the other hand, it shows that generally the work was found to be satisfacoty (WiMcr: 3fo 3ra f&fir ^ TTrzrr w 10 The Executive Engineer has not stated in clear words that the work was satisfactory. 22. It appears that there is some mistake in translating the contents of An-nexure-5 (the letter of the Executive Engineer) by Shri A.K. Sinha in his affidavit, but that cannot be said to be such a serious mistake, which will warrant the said harsh remarks against him. 23. Thus, I am of the considered view that there was no occasion to make such harsh and disparaging remarks against the aforesaid two officers. Accordingly, the strictures and adverse remarks made by the learned Single Judge against the aforesaid two officers, namely, Shri S.K. Singh, Managing Director and Shri A.K. Sinha, Manager (Administration) of the Corporation are quashed and the order passed for payment of cost of Rs. Accordingly, the strictures and adverse remarks made by the learned Single Judge against the aforesaid two officers, namely, Shri S.K. Singh, Managing Director and Shri A.K. Sinha, Manager (Administration) of the Corporation are quashed and the order passed for payment of cost of Rs. 25,000/- to the extent of half and half by them is also set aside. 24. As I have already held that this was not a case where the High Court should have exercised the power under Article 226 of the Constitution, the order passed by the learned Single Judge is not sustainable in law. 25. During the course of hearing, it transpired that the parties have agreed to settle their differences and the Corporation has agreed to pay Rs. 70,000/- to the contractor in full satisfaction of its all claims, which the respondent-contractor has agreed to accept the same. 26. It appears that in pursuance of the order passed by the learned Single Judge, the Corporation has paid the amount of Rs. 61,000/- and odd, which was payable to the contractor together with Rs. 37,664.35 as interest. In other words, a sum of near about Rs. 1 lac has been paid to the contractor, out of that, as agreed between the parties, the contractor will retain Rs. 70,000/- and will return back the remaining amount to the Corporation by Bank-draft within a period of two months from today. Failure to return back the aforesaid amount will be a disobedience to the order of this court and it will be open for the Corporation to bring to the notice of this court for taking appropriate action against the respondent-contractor. 27. In the result, both the appeals are allowed and the remarks and strictures made against appellant Shri S.K. Singh, Managing Director and Shri A.K. Sinha, Manager (Administration) are ex-pugned and the direction for payment of cost are set aside. So far as the claim of respondent-contractor is concerned, the same is being disposed of in terms of the agreement arrived at between the parties in course of hearing of the appeals. D.P.S.Choudhary, J. 28 I agree.