JUDGMENT 1. - This appeal impugns the decision of learned Single Judge dated November 17, 1997 allowing the writ petition of M/s. Anokhi Builders Pvt. Ltd., respondent herein (for short Builder’), quashing the auction of plot held on August 5, 1996 by Jaipur Development Authority Jaipur, appellant herein, (for short ’JDA’) and directing JDA to refund sum of Rs. 18 lacs (the amount forfeited by JDA) to the Builder with interest.Contextual Facts : 2. Plot No. 7 situated at Indra Palace, Malviya Nagar Jaipur was to be auctioned by JDA for commercial purposes and building was allowed to be raised upto height of 30 mtrs. A brochure containing terms and conditions of the auction was distributed amongst all the persons participating in auction. Every participant was required to deposit Rs, 3 lacs as earnest money. The highest bidder had to deposit 5% of the total amount at the spot and 10% of the total amount within 24 hours from the tentative acceptance of the bid. It was clearly stated in the terms and conditions of auction that in case amount of 10% was not deposited within 24 hours, the amount already deposited by the bidder shall stand forfeited. 3. The Builder participated in the auction held on August 5, 1996 The Builder’s bid was RS; 15,000/- per square meter and being the highest bidder, the Builder deposited by demand draft a sum of Rs. 15 lacs. The matter : thereafter was placed before Commissioner JDA who accepted the bid and the Builder was required to deposit 10% of the total amount within 24 hours i.e. upto August 6, 1996. However on August 6, 1996 at 1.45 PM the Builder served a letter on JDA stating therein that since Air Port Authority could raise objection in regard to raising 30 meter height of the building, the JDA was : required to inform the Builder upto 3 PM as to whether No Objection Certificate in regard to raising the height upto 30 meter was obtained from Air Port Authority. In case the information regarding NOC was supplied by JDA by 3 PM, the Builder would deposit the balance amount on the same day. In the garb of this letter the Builder did not deposit 10% of he total amount. : 4. In case the information regarding NOC was supplied by JDA by 3 PM, the Builder would deposit the balance amount on the same day. In the garb of this letter the Builder did not deposit 10% of he total amount. : 4. On August 8, 1996 Controller of Air Port wrote a letter to JDA that for construction of any building upto 35 meter of height, NOC would not be a problem. The JDA sent a telegram on August 8, 1996 to the Builder informing about said letter of Controller Air Port and asked the Builder to deposit the required amount upto August 9, 1996. Confirmatory letter was also sent but : the Builder refused to accept the letter. 5. On August 20, 1996 a notice was published by JDA in Daily News Paper that since despite the opportunity to deposit the amount upto August 9, 1996 the Builder had not deposited the required amount, the amount earlier deposited by the Builder stood forfeited. A letter dated August 20, 1 1996 was thereafter sent by the Builder informing the JDA that since JDA did not produce NOC from Air Port Authority, the offer of the Builder was to be treated as withdrawn. On September 2, 1996 JDA informed the Builder that his bid was cancelled and amount deposited by him stood forfeited.Submissions of Jda : 6. It was contended on behalf of JDA that Builder participated in the auction with open eyes and knowing fully well all the conditions of auction. The height of 30 meter was never a problem and it was clearly indicated in the brochure that Building of 30 mtrs. height could be raised over the plot. Ignoring this factual position learned Single Judge came to the conclusion that NOC will not be issued by the Air Port Authority for construction upto the height of 30 meters. Learned Single Judge even failed to consider the letter of Controller of Aerodrome Jaipur which indicated that issuance of NOC upto the height of 35 meters would not be a problem. Therefore the hypothetical situation created by the Builder was baseless. It was further urged that there was concluded contract between the JDA and the Builder which was accepted by the Commissioner JDA on August 6, 1996. The Builder himself committed breach in not depositing 10% amount. Therefore the hypothetical situation created by the Builder was baseless. It was further urged that there was concluded contract between the JDA and the Builder which was accepted by the Commissioner JDA on August 6, 1996. The Builder himself committed breach in not depositing 10% amount. The disputed questions of fact could not be resolved in writ petition.Case Law Cited By Jda :Reliance was placed on Orissa Agro Industries Corporation Ltd. v. Bharati Industries (2005) 12 SCC 725 and Har Shankar v. Dy. Excise & Taxation Commissioner (1975) 1 SCC 737 . 7. In Orissa Agro Industries Corporation Ltd. v. Bharati Industries (supra) the Apex Court held that the value of articles lifted by the writ petitioner in the present case, is a disputed factual question. Where a complicated question of fact is involved and the matter requires thorough proof on factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition. The question whether the action of the opposite party in the writ petition amounted to breach of contractual obligation ultimately depends on facts and would require material evidence to be scrutinised and in such a case writ jurisdiction should not be exercised. 8. Har Shankar v. Dy. Excise & Taxation Commissioner (supra) was the case where petitions were filed by liquor contractors and hoteliers who had successfully bid at the auctions for the retail sale of country liquor and foreign liquor and were given licenses by the Excise Department. The terms and conditions governing auctions were notified through announcements made at the time of auctions and the bidders voluntarily participated in the auctions. However, the licensees were unable to meet their obligations under the conditions of auctions and fell in arrears. Thereupon to stall consequential action by the State they filed writ petitions in the High Court challenging the validity of the auctions and the terms thereof. The High Court rejected all their contentions, factual and legal. However, the licensees were unable to meet their obligations under the conditions of auctions and fell in arrears. Thereupon to stall consequential action by the State they filed writ petitions in the High Court challenging the validity of the auctions and the terms thereof. The High Court rejected all their contentions, factual and legal. In appeal before the Supreme Court preliminary objection was taken that such of the appellants who offered their bids in the auctions did so with a full knowledge of the terms and conditions attaching to the auctions and they cannot by their writ petitions, be permitted to wriggle out of the contractual obligations arising out of the acceptance of their bids. The Apex Court held that: (Paras 16 & 22) "The preliminary objection is well founded. The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. The announcement of conditions governing the auctions were in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Government’s acceptance of those bids was the acceptance of willing offers made to it. On such acceptance the contract between the bidders and the Government became concluded and a binding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Government, under which they became entitled to sell liquor. Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim." Arguments Advanced on Behalf of Builder : 9. Per contra, learned counsel representing the Builder supported the decision of learned Single Judge and canvassed that jurisdiction of High Court is very wide and if writ petition has been entertained on merit it cannot be thrown out on the ground of alternative remedy. Per contra, learned counsel representing the Builder supported the decision of learned Single Judge and canvassed that jurisdiction of High Court is very wide and if writ petition has been entertained on merit it cannot be thrown out on the ground of alternative remedy. According to learned counsel JDA committed fraud with the Builder and despite the knowledge that it could not grant permission for constructing the building upto the height of 30 meter, JDA misrepresented before the Builder and snatched a sum of Rs. 18 lacs from the Builder. The writ petition in such a situation was maintainable. Reliance was placed on various judicial pronouncements.Case Law Cited By Builder : 10. In SJS Business Enterprises (P) Ltd. v. State of Bihar (2004) 7 SCC 166 , it was held that existence of alternative remedy does not impinge on jurisdiction of High Court to hear the matter it is otherwise possible and even where a party has initiated an alternative remedy (in this case by way of a suit) but not pursued it instead of dismissing a writ petition on ground of alternative remedy the court may call the party to elect whether it will proceed with alternative remedy or proceed with the writ petition. 11. In ABL International Ltd. v. Export Credit Guarantee (2004) 3 SCC 553 , it was held that writ petition cannot be thrown out on the ground of alternative remedy of civil suit and High Court would be justified in hearing the petition on account of (a) the delay and that stage of proceedings and (b) the principle of applicability of Article 14 to contractual dealings of State 12. In Durga Enterprises Pvt. Ltd. v. Principal Secretary Govt, of UP (2004) 13 SCC 665 it was held that it was improper for High Court to summarily dismiss the writ petition which was pending for long period of 13 years on account of alternative remedy. 13. In Claude-lila Parulekar v. Sakai Paper (P) Ltd. (2005) 11 SCC 73 it was held that where considerable delay was occurred in proceedings it would be inequitable and improper exercise of judicial discretion if Supreme Court were to turn away the appellant at this stage to pursue alternate remedy. 14. 13. In Claude-lila Parulekar v. Sakai Paper (P) Ltd. (2005) 11 SCC 73 it was held that where considerable delay was occurred in proceedings it would be inequitable and improper exercise of judicial discretion if Supreme Court were to turn away the appellant at this stage to pursue alternate remedy. 14. In Ramdeo Baba Kamla Nehru Engineering College v. Sanjay Kumar (2002) 10 SCC 487 , it was held that writ petition for refund of money subject to deductions was maintainable and technical plea that respondents ought to file civil suit was rejected. 15. In Ganga Retreat & Towers Ltd. v. State of Rajasthan (2003) 12 SCC 91 , the Apex Court heard the matter on merits after High Court dismissed the appeal on ground of alternative remedy in view of six years having expired from filing of writ petition. Further the factor like mire-presentation in contractual dealing by the State were considered on merits by the Supreme Court. 16. In Laxmi Devi v. JDA 2001 (5) WLC (Raj.) 568 , it was held that after twelve and half years of writ being admitted, objection of alternative remedy was untenable. 17. In ABL International Ltd. V. Export Credit Guarantee (2004) 3 SCC 553 , it was held that High Court can intervene under Article 226 if the State or its instrumentality act in an arbitrary manner even in contractual dealings. The writ petition involving relief of monetary claim was held maintainable. 18. In Mohammed Gazi v. State of MP (2004) 4 SCC 342 , in writ proceedings culminating in Supreme Court claim for refund of entire security deposit was allowed and deduction in earnest money made by High Court was set aside. 19. In Lamba Industries v. Union of India (1991) 2 SCC 407 it was held that relief can be obtained by a party in writ jurisdiction even if it arises out of breach of contract obligations. 20. In Sterling Computers Ltd. v. M & N Publications Ltd. (1993) 1 SCC 445 , it was held that decision taken by public authority in commercial/contractual transaction of State or its instrumentality is open to judicial review and the decision making process is violative of Article 14, Court can strike down the decision and action taken pursuant thereto. 21. 20. In Sterling Computers Ltd. v. M & N Publications Ltd. (1993) 1 SCC 445 , it was held that decision taken by public authority in commercial/contractual transaction of State or its instrumentality is open to judicial review and the decision making process is violative of Article 14, Court can strike down the decision and action taken pursuant thereto. 21. In LIC of India v. Consumer Education & Research Centre (1995) 5 SCC 482 , it was held that even if State/instrumentality/authority enters into contract with private persons, writ petition filed by the contracting private parties challenging the terms of the contract as being arbitrary, unjust and unfair is maintainable. 22. In Verigamto Naveen v. Govt, of AP (2001) 8 SCC 344 , it was held that interference in contractual matters was permissible where breach of contract involves breach of statutory obligation and order complained of has been made in exercise of statutory power by a statutory authority. In such situation though cause of action arises out of or is related to contract the dispute is brought within the sphere of public law. 23. In ABL International Ltd. v. Export Credit Guarantee (supra) it was held that there is no absolute rule in all cases involving disputed question of fact, party should be relegated to civil suit and reliance was placed on Gunwant Kaur’s case (1969) 3 SCC 759, that if need be even oral evidence can be taken in writ petition. 24. In Karam Singh v. Collector Kurukshetra District (1993) Supp. 2 SCC 759 , it was found that disputed question of fact was more illusory than real and the matter was remanded to High Court for hearing on merits. 25. In Nobel Resources Ltd. v. State of Orissa (2006) 10 SCC 236 , it was held that in contractual matters where State violates Article 14 or public law element is involved or malafides or ulterior motives are attributed, judicial review would be permissible. Even existence of a disputed question of fact or availability of an alternative remedy not ipso facto a bar to the exercise of High Court’s writ jurisdiction. 26. Even existence of a disputed question of fact or availability of an alternative remedy not ipso facto a bar to the exercise of High Court’s writ jurisdiction. 26. In B.L. Chakraborty v. State of WB (2005) 12 SCC 148 , where High Court dismissed the writ petition on account of disputed question notwithstanding the same in view of the fact that respondent was State within Article 12 and to meet the ends of justice by ending the long-standing dispute, high court was directed to hear writ petition without determining maintainability thereof. 27. in Sneha Mandal Co-op. Housing Society Ltd. v. Union of India (2000 AIR Bombay 121) it was held that on reading the provisions of Aircraft Act and Rules it was clear that permission was required to be obtained from Central Government before undertaking air transport service. 28. In Century Spg. & Mfg. Co. v. Ulhasnagar Municipality ( AIR 1971 SC 1021 ) it was held that public bodies are as much bound as private individuals to carry out representation of facts and promises made by them. 29. In DDA v. Skipper Construction Co. (P) Ltd. (2000) 10 SCC 130 , it was held that where builders entering into agreements with more number of buyers than the available units of accommodation without putting the buyers on notice that his purchase will depend upon availability of units of accommodation and collecting money without provision for interest thereon These transactions amounted to fraud and are unconscionable. 30. Learned counsel for the Builder further contended that the case was not of concluded contract as per clause-5 of the terms and conditions JDA Commissioner was entitled to accept or reject the bid. Since the acceptance of the bid was not made there was no concluded contract Without concluded contract no amount could have been forfeited. The earnest money was Rs. 3 lacs and first instalment 5% of bid amount was to be deposited after acceptance of bid, therefore, the amount was not liable to be forfeited. 31. Since the acceptance of the bid was not made there was no concluded contract Without concluded contract no amount could have been forfeited. The earnest money was Rs. 3 lacs and first instalment 5% of bid amount was to be deposited after acceptance of bid, therefore, the amount was not liable to be forfeited. 31. In UOI v. M/s. Bhimsen Walaiti Ram ( AIR 1971 SC 2295 ) it was held that in an auction sale of liquor shop where final bid was subject to confirmation of Chief Commissioner and resale was ordered without the bid having been confirmed by the Chief Commissioner, the auction purchaser whose bid was provisionally accepted was not liable for any short fall on re-auction because it was not a sale of concluded contract. 32. In State of UP v. Kishori Lal Minocha ( AIR 1980 SC 680 ) it was held that where highest bidder did not deposit the prescribed minimum and re-auctioned fetched smaller amount the suit for loss by State against highest bidder in previous auction was not maintainable as there was no concluded contract between State and auction bidder to hold bidder liable for breach of contract. 33. In Nutakki Seshratanam v. Sub-Collector Land Acquisition Vijaywada (1992) 1 SCC 114 , it was held that where an offer in terms of Contract Act was given it could be withdrawn at any time before acceptance and till the offer is accepted there w&s no contract between the parties. 34. In M/s. Suraj Besan and Rice Mills v. FCI (AIR 1988 Delhi 224) it was held that a person can withdraw or modify his offer or tender before communication of the acceptance is complete as against him that is before its acceptance is intimated to him. The Government by merely providing a clause to the contrary in the tender notice could not take away the legal rights of a person. 35. In Executive Engineer Sundargarh R&B Division v. Mohan Prasad Sahu (AIR 1990 Orissa 26) it was held that the submission of tender being in the nature of a proposal or offer unless the highest bid of a tenderer is accepted by the competent authority and the said acceptance is communicated to the tenderer, the contract cannot be said to be concluded between the parties. 36. 36. In Yogesh Mehta v. Custodian Special Court (2007) 2 SCC 624 , it was held that acceptance of bid was subject to order of the Supreme Court and the order of Special Court which accepted auction was only provisional one. Without the order of Supreme Court there was no concluded contract. Further forfeiture of earnest money in the aforementioned situation could not have been directed. While directing forfeiture of the "earnest money" the provisions of the Contract Act, 1872 are to be kept in mind. Forfeiture is permissible only when a concluded contract has come into being and not prior thereto. 37. Learned counsel contended that sections 73 and 74 of Contract Act would apply in case of forfeiture of amount and there can be no forfeiture unless there be a loss proved. In the instant case, as set out in additional affidavit the land in question had been sold at more than double the price offered by respondent Company, thus no loss was caused to the JDA, therefore, no amount could have been forfeited. 38. In UOI v. Rampur Distillery & Chemical Co. ( AIR 1973 SC 1098 ) it was held that party to a contract taxing security deposit from the other party to ensure due performance of the contract is not entitled to forfeit the deposit on ground of default when no loss is caused to him in consequence of such default. 39. In Maula Bux v. UOI ( AIR 1970 SC 1955 ) it was held that a forfeiture is in the nature of penalty, Section 74 would apply. Where loss in terms of money can be determined the party claiming compensation must prove the loss suffered by it. 40. In Arvind Coal & Construction Co. v. Damodar Valley Corpn. (AIR 1991 Patna 14 ) it was held that in absence of concluded contract the question of Corporation taking recourse to Section 74 for claiming damages under the Contract Act did not arise and it was not entitled to forfeit the amount of security deposited. 41. In Bhanwar Lal v. Babu Lal ( AIR 1992 MP 6 ) it was held that in absence of proof of any loss to the auctioning authority the advance deposited by the auction purchaser could not be forfeited by the receiver as earnest’, it could not be supported by the provision of Section 74 of the Contract Act. 42. 41. In Bhanwar Lal v. Babu Lal ( AIR 1992 MP 6 ) it was held that in absence of proof of any loss to the auctioning authority the advance deposited by the auction purchaser could not be forfeited by the receiver as earnest’, it could not be supported by the provision of Section 74 of the Contract Act. 42. Learned counsel also contended that instant case was of unjust enrichment by Government thus inferences under Article 226 by the High Court was justified. 43. In New India Industries Ltd. v. UOI (AIR 1990 Bombay 239 ) it was held that in writ petition the Court might prevent both the State and the person from whom tax had been illegally collected from making unjust enrichment. There is no real contradiction between the two concepts viz. (1) the State is bound to refund amounts collected without authority of law and (2) the jurisdiction under Article 226 is discretionary and equitable in nature. 44. In M/s. Shyam Biri Works v. UP Forest Corporation ( AIR 1990 All 205 ) (DB) it was held that writ petition is maintainable seeking refund of earnest money. 45. In FCI v. Sujit Roy (AIR 2000 Gauj. 61) (DB) it was held that a writ petition challenging forfeiture order as maintainable and no forfeiture of earnest money could be done unless loss was suffered by FCI.Judicial Review Of Administrative Action Taken In Contractual Field : 46. No judicial review by the High Court by way of writ of mandamus under Article 226 of the Constitution is available to enforce a private rights such as contractual rights or obligations or to avoid it. For the contracts which were non-statutory and purely contractual and governed solely by the terms of contract, no writ would lie but the party aggrieved has to move appropriate civil court for appropriate remedy. (Vide Lekh Raj v. N.M. Shah AIR 1966 SC 334 , DFO v. Biswanath Tea Co. AIR 1981 SC 1368 , Bareilly Development Authority v. Ajay Pal Singh AIR 1989 SC 1076 ) . 47. In Orissa Agro Industries v. Bharti Industries (2005) 12 SCC 725 , their Lordships of the Supreme Court indicated thus : (Para 7) "...Where a complicated question of fact is involved and the matter requires thorough proof of factual aspects, the High Court should not entertain the writ petition. 47. In Orissa Agro Industries v. Bharti Industries (2005) 12 SCC 725 , their Lordships of the Supreme Court indicated thus : (Para 7) "...Where a complicated question of fact is involved and the matter requires thorough proof of factual aspects, the High Court should not entertain the writ petition. Whether or not the High Court should exercise jurisdiction under Article 226 of the Constitution, would largely depend upon the nature of dispute and if the dispute cannot be resolved without going into the factual controversy, the High Court should not entertain the writ petition." Conclusion : 48. Bearing these principles in mind we proceed to analyse the facts of the instant matter. Factual situation emerges from the material on record may be summarised as under: (i) Auction of Plot No. 7 situated at Indira Palace Malviya Nagar Jaipur was held on August 5, 1996. (ii) In terms and conditions of the auction, one of the condition was that height of building to be constructed over the plot could be raised upto 30 mtr. (iii) The Builder participated in the auction after going through the terms and conditions of auction. He deposited a sum of Rs. 3 lacs as earnest money and Rs. 15 lacs towards 5% of total amount of bid on the spot. (iv) The Builder gave highest bid of Rs. 15,000/- per square meter and his bid was accepted by the Commissioner JDA and the Builder was required to deposit 10% of the total amount within 24 hours i.e. upto August 6,1996. (v) On August 6, 1996 the Builder suddenly took ‘U turn’ and served a letter dated 1.45 PM on JDA directing JDA to obtain No Objection Certificate from Air Port Authority to the effect that height of building to be constructed on plot No. 7 could be raised upto 30 mtr. The NOC had to be obtained by JDA upto 3 PM i.e. within one hour and fifteen minutes. (vi) The Builder did not deposit required amount of 10% on August 6, 1996. (vii) On August 8, 1996, JDA sent a telegram to the Builder, informing him that Controller Air Port wrote a letter that height of building could be raised upto 35 mtr., therefore, 10% amount could be deposited by the Builder upto August 9, 1996. Telegram was followed by confirmatory letter but the Builder refused to accept the confirmatory letter. (vii) On August 8, 1996, JDA sent a telegram to the Builder, informing him that Controller Air Port wrote a letter that height of building could be raised upto 35 mtr., therefore, 10% amount could be deposited by the Builder upto August 9, 1996. Telegram was followed by confirmatory letter but the Builder refused to accept the confirmatory letter. (viii) When the required amount was not deposited by Builder, JDA published a notice in Daily News Paper on August 20, 1996 informing about the forfeiture of the amount earlier deposited by the Builder. (ix) On August 20, 1996 the Builder sent a letter to JDA to the effect that since JDA failed to furnish NOC from Air Port Authority, the offer of the Builder was to be treated as withdrawn. (x) On September 2, 1996 JDA informed the Builder that his bid was cancelled and amount deposited by him stood forfeited. 49. It also appears from record that in the vicinity of Air Port, building of ‘Hotel Clarks Amer’ already existed height of which is concededly 32.60 meters. 50. Learned Single Judge has dealt with the issue of condition of 30 meter height in paras 13, 14, 15, 16, 17 and 18 of the impugned judgment. We deem it necessary to incorporate these paras, which read thus : "13. The short controversy in this case is that when one of the condition of the auction of commercial plot published by the JDA that the buyer can raise building uptil 30 meters height. Taking that into account, petitioner has taken part in the bid and raised his bid uptil Rs. 15,000/- per square meter. Subsequently, it is found that he cannot raise the height of the building uptil 30 meters, whether he can withdraw his offer prior formal acceptance by the JDA. The JDA is empowered to reject or accept the bid without assigning any reason. In these circumstances, when the NOC was not obtained from the Airport Authority after request of the petitioner, can his deposit of Rs. 18 lacs be forfeited? Can the respondents take advantage of their own wrong? 14. The auction take place on 5.8.96. The petitioner has deposited 5% of the auction bid amount on the spot. On the next day i.e. 6.8.96, when he came to know that without obtaining NOC from the Airport Authority, he cannot raise the building uptil 30 meters height. Can the respondents take advantage of their own wrong? 14. The auction take place on 5.8.96. The petitioner has deposited 5% of the auction bid amount on the spot. On the next day i.e. 6.8.96, when he came to know that without obtaining NOC from the Airport Authority, he cannot raise the building uptil 30 meters height. He wrote to the Secretary, JDA that before he pay the balance amount NOC from the Airport Authority be obtained as required under the law. 15. No such NOC has been obtained form the Airport Authority by the JDA. Instead they cancelled the auction and forfeited the deposited amount of the petitioner. It is also not in dispute that letter dated 6.8.96 has been received in JDA at 1.45 pm i.e. before 24 hours from the time of final bid. Subsequently, a reply has been seen sent that Airport Authority has expressed their views. "It is expected that NOC will not be a problem.". The letter of Airport Authority, that NOC will not be a problem, is only expectation, but in fact no NOC from the Airport Authority has been taken. 16. Once the JDA has given the lucrative, location and conditions of the commercial plot, including that petitioner can raise the building on that commercial plot uptil 30 meters height, which is one of the most attractive condition which petitioner has taken into account before taking part in the auction and if after purchase, if the petitioner is not allowed to raise the building uptil 30 meters height, how he can start construction unless he is assured that once he starts construction, no objection will be raised by the Government or any Semi-Government authority. Admittedly, no NOC has been obtained. 17. If any person want to raise the construction within 10 kms. from the Airport under rule NOC from the Airport Authority is necessary how that can be ignored. But the JDA has given this fact in advertisement that purchaser can raise the building uptil 30 meters height. Once this fact has been given in the advertisement, now it is for the JDA to assure the petitioner that he can raise the building uptil 30 meters height on the plot. 18. In spite of the request of petitioner, no such NOC has been obtained by the JDA from the Airport Authority. Once this fact has been given in the advertisement, now it is for the JDA to assure the petitioner that he can raise the building uptil 30 meters height on the plot. 18. In spite of the request of petitioner, no such NOC has been obtained by the JDA from the Airport Authority. How the JDA can take advantage of their own wrong and forfeited the amount of petitioner. 51. A look at the afore quoted observations demonstrates that the learned Single Judge himself indicated that disputed questions of fact were involved yet he went on to give directions as if he was adjudicating the money claim in a suit. In view of ratio indicated in G.M. Kisan Sahkari Chini Mills Ltd. v. Satrughan Nishad (2003) 8 SCC 639 and Rourkela Shiamik Sangh v. Steel Authority of India (2003) 4 SCC 317 , this course was clearly impermissible. 52. Approving the judgment of Patna High Court, their Lordships of the Supreme Court in Radhakrishna Agarwal v. State of Bihar (1977) 3 SCC 457 propounded three types of cases where breaches of alleged obligation by the State or its agent could be set up. The first type of obligation that related to assurance or promise made by the State could be held enforceable by the force of a doctrine of promissory estoppel. The second category covers those cases where the breach complained of is of a statutory obligation. In the case of third category where questions of pure alleged breach of contract are involved it was indicated that no writ under Article 226 to compel the authorities could be issued to remedy a breach of contract pure and simple. 53. The Constitution Bench of Supreme Court in Har Shankar’s case ( AIR 1975 SC 1121 ) observed thus ; (Para 21) "The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations." 54. In the instant case as already noticed, the concluded contract came into being, forfeiture of earnest money and other amount deposited by the Builder was permissible. 'The highest bid of the Builder was accepted in his presence by the Commissioner JDA and the Builder was required to deposit 10% of the total amount within 24 hours i.e. upto August 6, 1996. 'The highest bid of the Builder was accepted in his presence by the Commissioner JDA and the Builder was required to deposit 10% of the total amount within 24 hours i.e. upto August 6, 1996. It was only at 1.45 PM on August 6, 1996 that the Builder took ‘U turn’ and despite the knowledge of this fact that the building Hotel Clarks Amer situated in the vicinity of Air Port was of 32.8 meter height, gave only one hour and fifteen minutes to JDA to furnish No Objection Certificate of the Air Port Authority to the effect that height of building on plot No. 7 could be raised upto 30 meters. Even on August 8, 1996 information, incorporated in the letter of Controller Air Port regarding permissible of 35 meters height was communicated to the Builder and time to' deposit 10% of amount was extended upto August 9, 1996 but the Builder did not pay any heed to the request of JDA. In such a situation provisions contained in Sections 73 and 74 of the Contract Act could not have been invoked. 55. We also find no substance in the contention of learned counsel for the Builder that the earnest money and other amount collected by JDA was for making unjust enrichment. The Builder himself approached JDA and participated in auction. The JDA assured him that he could raise building upto 30 meters height over the plot but he unnecessary became apprehensive. By his immature act the Builder has made mockery of the auction. 56. Above being the position the judgment of the learned Single Judge is clearly unsustainable and is set aside. However, our interference in the matter shall not stand in the way of Builder seeking any other remedy as is available in law. 57. The appeal is allowed but in the circumstances without any order as to costs.Appeal Allowed. *******