Judgment Mridula Mishra, J. 1. In both the writ applications petitioners have prayed for quashing the order dated 18.7.2007 contained in letter No. 2479 and 2480 issued under the signature of Managing Director of Bihar Rajya Pul Nirman Nigam Ltd. (hereinafter to be referred to as the Nigam) whereby the agreement dated 25.6.2007 signed in between the petitioners and the Senior Project Engineer of the Nigam, have been rescinded, as per the direction of the Chairman of the Nigam, consequent to the discussion, held in the meeting dated 10.7.2007 convened by the Principal Secretary, Road Construction Department. Further prayer of the petitioner is for quashing the notice inviting tender dated 20.7.2007 whereby the work awarded to the petitioners are going to be re-tendered. Prayer is also for restraining the respondents from awarding the contract to any one in pursuance of the notice inviting tender dated 20.7.2007. 2. Since reliefs are similar and facts are similar as such both the applications were taken for analogues hearing and are being disposed of by a common order. 3. Petitioners in both the writ applications are company registered under the Companies Act. The Nigam issued notice dated 7.5.2007 inviting tender for strengthening and widening of 0.19 as well as 20-35 K.M. roads of National Highway 106. Petitioners in both the writ applications submitted their tender against the NIT and they were selected being lowest bidder. 4. On 16.5.2007 work order was issued and work was alloted to the petitioners. Total period for execution of work was six months and the work plan was to be submitted within ten day. From the letter dated 16.5.2007 the petitioners were asked to deposit 1% performance guarantee of the total project amount within ten days and the work was also to commence within ten days from the date of issuance of the letter. Petitioner in C.W.J.C.No. 9179 of 2007 submitted his work plan within ten days on 26.5.2007 and on 14.6.2007 the bill of quantity was prepared and approved by the Executive Engineer. N.H. Division and it was received in the office of the Nigam on 18.6.2007. Value of the work was determined as Rs. 4,48,00.000/- and 1% amount as performance guarantee amounting to Rs. 4.48,000/- was deposited by the petitioner on 24.6.2007 in the form of bank guarantee. A request was also made by the petitioner for execution of the agreement. N.H. Division and it was received in the office of the Nigam on 18.6.2007. Value of the work was determined as Rs. 4,48,00.000/- and 1% amount as performance guarantee amounting to Rs. 4.48,000/- was deposited by the petitioner on 24.6.2007 in the form of bank guarantee. A request was also made by the petitioner for execution of the agreement. The agreement was executed on 22.6.2007 and on 11.7.2007 work programme was issued by the Executive Engineer, As per the work programme the work was to be completed within six months from the date of execution of the agreement. The total six months was divided into four parts and for each part the time schedule was mentioned, within which the specified progress in the work was to be achieved. The schedule of physical progress and financial progress was also mentioned to be achieved within the time schedule. Time schedule of 1st part of work progressing started on 22.6.2007 and was to be completed on 5.8.2007. But even before completion of the first time schedule. agreement has been rescinded by the impugned order dated 18.7.2007. 5. The case of the petitioner of C.W.J.C. No. 9089 of 2007 is that on 14.5.2007 the tender was finalized his bid was accepted being the lowest bidder. By letter No. 1760 dated 16.5.2007 the work order intent was issued in which it was mentioned that the work would commence within ten days of the date of the letter and consequently work started on 23.5.2007. The petitioners company vide letter dated 24.5.2007 acknowledged the letter of intent and also informed that the work has started on 23.5.2007. The detail of work programme was also submitted, Vide letter No. 199 dated 21.6.2007. The respondent authorities demanded the petitioners company to deposit performance guarantee an amounting to Rs. 12.93.000/- and it was submitted on 23.6.2007. The agreement was executed on 25.6.2007 adhering to all the terms and conditions of the contract. When the work was going on satisfactorily the Senior Project Manager Road Division vide his letter No. 251 dated 6.7.2007 the petitioner company to submit the M&N for verification. By letter of the same date a show cause notice was issued to the petitioner as to why the work was progressing at a slower pace than stipulated. The work which was to be completed by May and June has not been completed. By letter of the same date a show cause notice was issued to the petitioner as to why the work was progressing at a slower pace than stipulated. The work which was to be completed by May and June has not been completed. By this letter the Petitioner was also asked as to why Clause 3(iii) of the general conditions of contract should not be enforced against the petitioners company and the reply was to be submitted within three days. The petitioner replied that the work was going in full swing as per the revised work programme and assured the authorities that the work would be completed within the scheduled time. The Executive Engineer, N.H. Division, Madhepura on 10.7.2007 reported satisfactory progress in the work as per the schedule. Inspite of that by the impugned letter dated 18.7.2007 agreement of contract was rescinded. 6. Counsels for both the petitioners have taken similar grounds four challenging the impugned orders. It has been stated that the reasons set forth for rescinding the agreement are non-est illegal, malafide and arbitrary. One of the grounds mentioned in the impugned letter dated 18.7.2007 issued to the petitioner in C.W.J.C.No. 9179 of 2007 is that the notice dated 6.7.2007 was issued to him for showing cause, but this letter was never served. Statement to this regard has been mentioned in paragraph-19 of the writ application which has not been denied in the counter affidavit as such provisions mentioned in Clause 3(iii) is not applicable in the case of the petitioner. Clause 3(iii) of the agreement envisages that if the agency without reasonable cause makes slow progress of the work or fails to proceed with the work for due diligence and continues to do so even after a notice in writing of seven days from the Engineer-in-chief, in that case the contract can be determined/rescinded. For determination/rescinment of the agreement grounds are mentioned in Clause 3 Clause 3(vii) relates to failure in starting the work by the agency within 1/8th of the stipulated time i.e. 45 days. petitioners case is that the agreement was executed on 22.6.2007 and 1/8th of the 45 days will be atleast 24 days. The respondents did not wait for this period, and rescinded the agreement. This act of the respondents clearly indicates their arbitrary, malafide and hasty attitude. 7. Mr. petitioners case is that the agreement was executed on 22.6.2007 and 1/8th of the 45 days will be atleast 24 days. The respondents did not wait for this period, and rescinded the agreement. This act of the respondents clearly indicates their arbitrary, malafide and hasty attitude. 7. Mr. Tara Kant Jha learned Senior counsel appearing for the petitioner has gone in detail in order to show the arbitrariness on the part of the respondents. He has also submitted that the impugned letter has not been issued by the Managing Director. The Managing Director has not taken any decision in this regard but from the wordings of the impugned letter it transpires that on direction of Chairman impugned order has been issued under the signature of Managing Director, Counsel for the petitioner ohas further submitted that on 10.7.2007 a meeting was held to review the overall progress of the projects and the Chairman of the Nigam issued a general direction to take action against such agencies whose progress is not satisfactory by imposing punishment as per rule like financial penalty or rescinment of contract. Taking their general observation as directed, impugned order was issued, without even any notice to the petitioner. 8. It has also been submitted by the petitioners counsel that this general direction has no application in his case. So far petitioners case is concerned, the work had just commenced. The agreement was executed on 25.6.2007 and thereafter work started. As any progress in work could not have been ascertained at this point of time. petitioner at this time was only collecting materials to start the work which is apparent from Annexure-11 to the writ application. 9. Further it has been contended that, if direction of Chairman is taken as reason for issuing impugned order, even in that case it is arbitrary as direction was to impose punishment either of the monetary penalty or rescindment of agreement. This means that considering facts of each case punishment was to be imposed, as the rules and conditions under agreement provided, the respondents imposed harashest punishment going against the provisions for penalty under the P.W.D. code. It has been provides order the P.W.D. code different punishments has been provided for different latches. Under the agreement also there is provision for extension of Work but that was also not considered. In totality the action of the respondents is arbitrary. It has been provides order the P.W.D. code different punishments has been provided for different latches. Under the agreement also there is provision for extension of Work but that was also not considered. In totality the action of the respondents is arbitrary. This action is guided by malafide as the respondents were interested in assigning the work to the next bidder who could not succeed at that time of allotment of work. Now by inviting fresh tender the work has been allotted in favour of the second lowest bidder which is a proof for malafide action on the part of the respondents. 10. Mrs. Anjana Prakas appearing for petitioner in C.W.J.C.No. 90119 of 2007 has submitted that in terms of the letter of intent the petitioner started its work immediately within ten days from the date of issuance of the L.O.I. All other conditions mentioned in the different letters of the respondents were duly fulfilled by the petitioner. The work was also progressing satisfactorily which is apparent from the report of the Executive Engineer. The respondent Managing Director without holding any enquiry regarding the progress in the work has rescinded the agreement of the petitioner. The petitioner though complete the work worth Rs. 68 lakhs value within 18 days from the date of issuance of the work order. Progress was very much in accordance with the work schedule of the respondent Nigam. Inspite of that the decision in was taken for rescinding the agreement and the impugned order which is extremely arbitrary was passed as such the order rescinding the contract must be quashed. 11. Mr. P.K. Shahi Advocate General appeared on behalf of Nigam. He raised preliminary objection regarding the maintainability of the writ application stating that in the agreement executed in favour of the petitioner there is arbitration clause. Alternative remedy is available to the petitioner. The writ application is not maintainable and as such it should be dismissed in limine. 12. In reply to this statement counsel for the petitioner has placed reliance on a decision in the case of A.V. Venkateswaran, Collector of Customs, Bombay V/s. Ramchand Sobhraj Wadhwani and Anr. . In this case also the point for consideration was whether writ petition should be rejected in limine because the respondent has not exhausted all statutory remedies open to him for having his grievance redressed. . In this case also the point for consideration was whether writ petition should be rejected in limine because the respondent has not exhausted all statutory remedies open to him for having his grievance redressed. The finding which has been recorded is that the writ jurisdiction being the discretionary jurisdiction, it is not possible to lay down inflexible rules which should be applied with rigidity in every case which comes up before this Court. It will depend on facts of each case. 13. I find substance in this submission and simply because an alternative remedy is available, the High Court cannot refuse to exercise its jurisdiction where orders or actions need consideration. 14. Mr. Shahi has further submitted that the case of the petitioner relates to their contractual right. The petitioners before making a prayer for relief relating to issuance of mandamus must establish that they have legal and enforceable right. Mandamus cannot be issued in a case of statutory contractual relation. In case the writ application is allowed the only effect will be restoration of contractual relationship which amounts to a decree for specific performance of contract. While exercising jurisdiction under Article 226 the High Court cannot issue mandamus for restoration of such contractual right. Mr. Shahi has placed reliance on two decisions: Radhakrishna Agrawal and Ors. V/s. State of Bihar and Ors. as well as 1991 (1) B.L.J.R. 1557. 15. This part of the judgment of A.I.R. 1997 S.C. 1496. which has been relied by him is as follows: At the very threshold or at the time of entry into the field of consideration of persons with whom the Government could contract at all, the State, no doubts, acts purely in its executive capacity and is bound by the obligations which dealings of the State with the individual citizens import into every transaction entered into in exercise of its constitutional powers. But, after the State or its agents have entered into the field of ordinary contract the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines rights and obligations of the parties inter se.No question arises of violation of Article 14 or of any other constitutional provision when the State or its agents, purporting to act within this field perform any act. In this sphere, they can only claim rights conferred upon them by contract and are bound by the terms of the contract only unless some statute steps in and confers some special statutory power or obligation on the State in the contractual field which is apart from contract. 16. Even in cases where the question is of choice or consideration of competing claims before an entry into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and required assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. 17. It has also been argued that the allegations made by the petitioner in the writ application is that there is breach of contract. In that case also remedy lies before some alternative forum and not in the writ jurisdiction. The award of contract by a private party, public body or the State is essential commercial transaction. The State can choose its own method. In support of this contention he has placed reliance on a decision Air India Ltd V/s. Cochin International Airport Ltd. and Ors. . Specially paragraph 7 where it has been held that: The award of a contract, whether it is by a private party or by a public body or the State, essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. 18. What I find that in the decision reported in 2000 (2) finding is that the States or its instrumentalities have liberty to chose its own method to arrive at a decision fixed own terms for inviting tender but the court can examine the decision making process and interfere if it is found vitiated by malafide. unreasonableness and arbitrariness. 19. In the present case so far the petitioner D.K. Engineering & Construction Private Limited is concerned I find that the notice was duly served and only after giving opportunity as well as finding the progress not satisfactory, the contract he s been rescinded. In case of Associated Waterways Pvt. Ltd. stand of the petitioner is that the work could not have been started before execution of agreement in terms of the letter of intent dated 16.5.2007. Similar letter was issued to the petitioner D.K. Engineering & Construction Pvt. Ltd. He started the work immediately after ten days of the receipt of the notice. It means the counsel appearing for the respondent Nigam, that the petitioner failed to start work in terms of paragraph 3 of the letter is the correct interpretation. This petitioner failed to comply the conditions mentioned in this letter. It means the counsel appearing for the respondent Nigam, that the petitioner failed to start work in terms of paragraph 3 of the letter is the correct interpretation. This petitioner failed to comply the conditions mentioned in this letter. In that view naturally there was no progress in the work of the petitioner as the petitioner is calculating the commencement of work from the date of execution of the agreement which is not a correct interpretation. In a contractual relationship time being essence for continuation of such relationship, if that is violated, naturally action in terms of agreement can be taken. 20. Mr. Tarakant Jha stated about the non receiving of the notice dated 6.7.2007 as such non application of Clause 3(iii) of the General Conditions of Contract. What I find that though this statement has not been denied, but this is the disputed question of facts and simply for this reason it cannot be held that the impugned order has been passed without proper notice to the petitioner. So far the letter of Executive Engineer dated 11.7.2007 is concerned whereby the work programme was supplied to the petitioners as well as the report of the Executive Engineer dated 10.7.2007 (Annexure-1) is concerned, these letters have been disputed by the respondents stating that the Executive Engineer has issued ante dated letters and for this act he has already been put under suspension. 21. In the facts and circumstances of the case, the petitioner cannot place their reliance on these letters/orders to show that Clause 3(vi) of the General Conditions of Contract could have been attracted only when the work would not have stated within 1/8th period of stipulated time subject to maximum of 45 days. 22. Mr. Shashi Anugrah Narain counsel appearing for respondent No. 6 in C.W.J.C.No. 9089 of 2007 has made similar submissions like Mr. P.K. Shahi. Advocate General. He has submitted that the petitioner is just a licensee having no legal right and the application is not maintain able sunder Article 226. For this he has placed reliance on a decision Rajasthan Housing Board and Anr. V/s. G.S. Investments and Anr. P.K. Shahi. Advocate General. He has submitted that the petitioner is just a licensee having no legal right and the application is not maintain able sunder Article 226. For this he has placed reliance on a decision Rajasthan Housing Board and Anr. V/s. G.S. Investments and Anr. wherein it has been held that: The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. V/s. Cochin International Airport Ltd. and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons. if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. 23. On consideration of submissions made by the counsel for the petitioners and the counsel appearing for the respondents Nigam I find that the work was allotted in the month of May 2007 with specific direction that the work should commence within ten days. The petitioner in C.W.J.C.No. 7179 of 2007 Associate Waterways Ltd. interpreted Clause 3 in his own way and he did not start his work till 26.7.2007. There was no progress in the work till that date. The terms and conditions mentioned in the agreement clause was naturally violated. In the agreement there is specific clause that the progress should be in the stipulated schedule but that was not done. In the case of the petitioner of D.K. Engineering though the work started within ten days of the issuance of the letter, but the progress was not satisfactory for that notice was issued aunder Clause 3(iii). Since the reply of the petitioner was not found to be satisfactory he was asked to show cause. In the case of the petitioner of D.K. Engineering though the work started within ten days of the issuance of the letter, but the progress was not satisfactory for that notice was issued aunder Clause 3(iii). Since the reply of the petitioner was not found to be satisfactory he was asked to show cause. The respondent also indicated that on the site the work is not as per the schedule. There being a provision under the agreement for determination of such contracts, the respondents have passed an order for rescinding the contract. The Instrumentality of the State while allotting the work for execution to any agency, its satisfaction is paramount. If the work is not satisfactory, the State and its instrumentality are free to select another agency for execution of work. 24. The petitioners can settle their dispute in terms of the arbitration clause in the agreement and can claim for compensation from respondent Nigam the amount which has been spent by them. Both these applications are dismissed.