Judgment :- (1.) SENGUPTA, J. : This appeal is against judgment and order of dismissal of the above writ petition of the learned Single Judge. It appears from the records that when the writ petition was filed the original respondent nos. 1 and 2 were made parties as their offices were found in existence. Thereafter, these offices were closed by the Government for good. Consequently, their names have been deleted from the array of the parties. From the pleadings it appears that the case made out by the appellants/ writ petitioners before the learned Trial Court is that the first writ petitioner is a partnership firm with the other writ petitioners who are partners thereof. The first writ petitioner has been carrying on business as a dealer of petroleum oil products which include lubricating oils, petroleum and diesel fuel. As such, the first writ petitioner is a dealer of the respondent. Hindustan Petroleum Corporation Limited (hereinafter referred to as the said Corporation), first respondent. The first writ petitioner has various places of business viz. at 236, A. J. C. Bose Road, Kolkata, Bongaon, 24-Parganas (North), Chakdaha, Nadia. It has also its godown at 29/1b, b. T. Road, Kolkata-700 002. The said Corporation, supplies stocks of oil for selling to the customers from their various pumping stations. On 30th july, 2002 a team of officers from the Anti-Adulteration Cell, Eastern regional Office, led by the Deputy Director of the above Cell, visited the godown of the petitioner at 29/1 B, B. T. Road, Kolkata-700 002. The said team observed, on inspection, unaccounted bulk lubricants contained in the three tanks with no valid documents for procurement of the same. It was informed on the following date i. e. on 31st July, 2002 that the samples would be drawn from the said tanks by the inspecting team. On the 31st july, 2002 when the said team came again for drawing samples necessary documents were produced before them to explain that the stocks were validly procured and there cannot be any discrepancy. On 30th July, 2002 an order was passed suspending the first petitioner from selling petroleum products. On 31 st July, 2002 after going through the documents the Deputy director revoked and/or withdrew the sale suspension order. On 30th July, 2002 an order was passed suspending the first petitioner from selling petroleum products. On 31 st July, 2002 after going through the documents the Deputy director revoked and/or withdrew the sale suspension order. The said officials, on the said day, asked the petitioner to submit product-wise last audited stock of all products within certain time limits and the tanks and godown calibrated and maintain calibration chart at the godown. The samples were drawn as usual and the said tanks were sealed for examination. The petitioner duly sent thereafter a copy of the auditors report for lubricating oil stocks kept at the said godown. On 9th August, 2002 the petitioner received a letter dated 13th August, 2002 from the deputy Director containing allegation of irregularity and discrepancy in the statements given on the date of inspection. The petitioner duly replied to the same explaining that there was no discrepancy in the records maintained by the petitioner with regard to purchase of stock of lubricating oil and/or greases and/or sale thereof. Again on 9th September, 2002 some persons of Anti-Adulteration Cell visited the head office of the petitioners and threatened that stern action would be taken against the petitioner for violation of the direction and stipulation recorded in the letter dated 13th August, 2002 written earlier by the Deputy Director. Such threat is without any authority of law inasmuch as the allegations made in the letter dated 13th August, 2002 of the Deputy Director has been duly replied to by the petitioner. The aforesaid raid and inspection were conducted to harass and disturb the petitioner as there was no cogent reason for doing so. The Anti-Adulteration Cell, Ministry of Petroleum and Natural Gas had no authority to question running of the petitioners business under licence granted under order of 1967 or to call upon the petitioners to produce books of accounts and other documents. They do not have any jurisdiction nor authority to issue any direction of any nature whatsoever with regard to the business of the petitioner as a dealer of lubricating oil and greases under order of 1967. They do not have any jurisdiction nor authority to issue any direction of any nature whatsoever with regard to the business of the petitioner as a dealer of lubricating oil and greases under order of 1967. The storage and seizure conducted by the officers of the Anti-Adulteration Officer, Ministry of Petroleum and Natural Gas and also the directions given by them with regard to the manner in which the petitioners should carry on their business of lubricating oil and greases under order, 1967 is without authority of law and colourable exercise of power. On or about 14th September, 2002 an inspecting team from the same Cell consisting of Deputy Director and other officials, visited the petrol pump of the petitioners situated at 236, A. J. C. Bose Road, kolkata700 020 and started inspecting dispensing units thereat on the allegation that operational system of dispensing units had been tampered with. The inspection team came to the purported conclusion that the seals of all the dispensing units had been tampered with. The totalizer weights and measures were not present. There was a shortage of more than 3000 litres of both Unleaded Petrol Lubricants (UPL) and High Speed diesel (HSD) in the fiscal stock and the stock mentioned in the daily sales record books maintained by the dealer. A report was prepared after the inspection and a copy thereof handed over to the petitioners. On 14th september, 2002 the petitioner was served with a letter issued by the senior Sales Officer of the said Corporation intimating the petitioner that in view of the findings of the inspecting team of Anti-Adulteration Cell, ministry of Petroleum and Natural Gas Sales from the dispensing units at the petrol pump should be suspended forthwith. By the letter the petitioners were advised to get dispensing units re-calibrated and re-stamped by the department of Legal Metrology, Government of West Bengal, and submit the calibration certificate so as to enable the said Corporation to take further necessary action in the matter. Pursuant to the said advice the petitioner contacted the said Department of Legal Metrology and got dispensing units recalibrated and restamped. On 14th September, 2002 sale from the said dispensing units at the petrol pump was suspended. Pursuant to the said advice the petitioner contacted the said Department of Legal Metrology and got dispensing units recalibrated and restamped. On 14th September, 2002 sale from the said dispensing units at the petrol pump was suspended. The above order of suspension is without authority of law as the said corporation cannot suspend sale through the various dispensing units and the petrol pump as mentioned in the letter dated 14th September, 2002. That apart no opportunity of hearing was given by the said corporation before taking the said purported decision to suspend sale. The same being in violation of principle of natural justice is a nullity. The said impugned order of suspension was passed upon non-application of mind. After receipt of the necessary report from the Inspector of Legal and Metrology Department the same was produced before the Chief regional Manager of the said Corporation and he was requested to permit the petitioner to resume business of petrol pump. Thereafter, in the evening of 17th September, 2002 the petitioner received a letter dated 16th september, 2002 from the Chief Regional Manager of the said Corporation calling upon the petitioners to give their explanation to the purported irregularities notice of 14th September, 2002 when the petrol pump was inspected by the said officials of anti-adulteration team. The said notice to show-cause dated 16th September, 2002 was also issued without any application of mind. There was no necessity to issue such notice nor there was any factual basis for issuance of the same. From the inspection report dated 16th September, 2002 prepared by the Inspector of Legal Metrology and also pump maintenance report dated 16th September, 2002 it is clear that all the dispensing units were in order and there was no tampering and irregularities as purportedly reported on 14th September, 2002 by the said officers. Till date illegal order of suspension of sale through the dispensing units has not been revoked resulting in the petitioners suffering from loss of business and prejudice. (2.) UNDER the order of 2000, the petitioners are required, inter alia, to maintain true and correct accounts of purchase, sale and storage of oil at the Premises No. 236, A. J. C. Bose Road, Kolkata. (2.) UNDER the order of 2000, the petitioners are required, inter alia, to maintain true and correct accounts of purchase, sale and storage of oil at the Premises No. 236, A. J. C. Bose Road, Kolkata. Any officer in the department of Food and Supplies of the Government of West Bengal, not below the rank of a Sub-Inspector, or any Police Officer not below the rank of an Assistant Sub-Inspector, may, with a view to securing compliance of the provisions of order of inspection for any stock of oil belonging to or under the control of any licensee enter and search any go-down or premises or places. The officers of Anti-Adulteration Cell under the Ministry of Petroleum and Natural Gas do not have authority to enter into any petrol pump for the purpose of inspecting any book or document or account of any stock of oil. The said Corporation does not have power to call upon the petitioners to explain alleged discrepancies found between the actual stock and stock mentioned in the books of accounts at the time of the purported inspection carried out by the Inspecting team of Anti-Adulteration cell on 14th September, 2002. The said Corporation is acting without jurisdiction in calling upon the petitioners to explain alleged irregularities found between actual stock and stock mentioned in the books of accounts at the time of purported inspection which was carried out by the inspection team of Anti-Adulteration Cell on 14th September, 2002. The Anti-Adulteration Cell exceeded its power or authority while exercising power under the Act of 1976 and/or Act of 1985. Under the said two Acts the controller of Department of Legal Metrology, West Bengal is empowered to take action. Neither Anti-Adulteration Cell nor the said Corporation can pass any order restraining the petitioners from operating the petrol pumps for alleged violation of provisions contained in the Act, 1976 or in the Act, 1985 and the order of 2000 and/or for any reason whatsoever. (3.) THE alleged shortage occurred due to leakage in the underground pipe of unleaded petrol storage tank and as a result thereof a substantial quantity of oil was lost. It is thus obvious that there is bound to be discrepancy in the actual stock in the tank and stock mentioned in the books of account. (3.) THE alleged shortage occurred due to leakage in the underground pipe of unleaded petrol storage tank and as a result thereof a substantial quantity of oil was lost. It is thus obvious that there is bound to be discrepancy in the actual stock in the tank and stock mentioned in the books of account. The aforesaid information of leakage in the underground pipe of unleaded petrol storage tank was communicated to the said corporation and the repairing work of the pipe has been made by the said corporation in or about 6th August, 2002. From time to time Hindustan petroleum Corporation Limited visited the petrol pump and checked the actual stock in the tank and stocks mentioned in the books of account and found legally permissible discrepancy in the actual stock in the tanks of both high speed diesel and unleaded petrol and the stocks mentioned in the books of accounts. (4.) TO sum up above details, the petitioners have actually challenged legality and validity of the said order of suspension of sale as well as, notice asking to show-cause as to why appropriate action should not be taken and also called for explanation as to why such irregularities occurred. (5.) BY filing affidavit the said Corporation contested the writ petition contending in substance that the writ petition is not maintainable as there is an alternative remedy provided in the dealership agreement dated 28th august, 1985 for resolution of disputes between the parties by the mechanism of arbitration, and without exhausting such alternative remedy the petitioner has no right to invoke-jurisdiction under Article 226 of the constitution of India. The question raised in the writ petition involve disputed question of fact and the same cannot be gone into by the Writ court. In terms of the dealership agreement the premises, where the petrol pump is located, and all its outlets are the absolute properties of the corporation and it may, at any time, enter into the said premises to inspect, test, repair, add, reduce and/or remove outlet located at building and structures of the said premises. All the products supplied by the said corporation to the dealer hereunder shall be in accordance with the specification laid down by the said Corporation from time to time. All the products supplied by the said corporation to the dealer hereunder shall be in accordance with the specification laid down by the said Corporation from time to time. The dealer shall take every possible precaution against contamination of the corporations products by water, dirt or other things injurious to their quality and shall not, in any way, directly or indirectly alter specification of the said products as delivered. The Corporation shall have right to exercise its discretion at any time and from time to time take quality control measures for the products marketed by the Corporation and lying with the dealer. The decision of the District Manager for the time being at Corporations district Office at Calcutta as to whether any product of the Corporation has been contaminated shall be final and binding upon the dealer. In the event the said District Manager finds that the contamination has occurred due to any act or default of the dealer or his servant or his agents the corporation shall have the right to do so to remove contaminated products or to destroy it or otherwise to deal with the same without making any payment to the dealer and without prejudice to the Corporations right to revoke this agreement forthwith. The Corporation will be entitled, at all times, to enter into the said premises and inspect the management of the retail outlet of the said dealer in all respects and the dealer shall be bound to render assistance and to give all information to the Corporation. Pursuant to the dealership agreement the dealer is bound to abide by the terms of the agreement and to apply the rules, regulations, guidelines, circulars of the Government of India including the guidelines of the Corporation and also to apply all the statutory provisions of Acts and Rules in selling the right quality and quantity of the petrol products to the consumers from the retail outlet premises of the Corporation. The respondent Corporation, being the owner of the retail outlet, has contractual and ethical right to see as to whether the dealer is selling the right quality and quantity of the petrol products at the prescribed rate to the consumers and providing courteous service to the general public. The respondent Corporation, being the owner of the retail outlet, has contractual and ethical right to see as to whether the dealer is selling the right quality and quantity of the petrol products at the prescribed rate to the consumers and providing courteous service to the general public. In deviation or breach of the terms and conditions of the dealership agreement committed by the dealer, actions such as suspension and termination of the dealership can be taken by the respondent Corporation and the said authority is derived from the dealership agreement. In addition to the powers conferred by the dealership agreement between the parties and in exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955, the Ministry of Petroleum and Chemicals (Department of Petroleum and Natural gases), Government of India has, by Notification dated 28th December, 1998, notified the Motors Spirit and High Speed Diesel (Regulation of supply and Distribution and Prevention of Malpractices) Order, 1998. Under the said 1998 Order, for the purpose of checking of malpractices, the power of search and seizure has been delivered to all oil companies officers also. The Central Government, by the order dated 17th January, 2002 being GSR 46 (e) authorized the Joint Director of the Anti-Adulteration Cell to exercise power of search and seizure in pursuance of Clause 4 of Motors spirit and High Speed Diesel (Regulation and Supply of Distribution and provisions of Malpractices) Order, 1998. Pursuant to the said order, 1998 anti-Adulteration Cell team accompanied by the senior Sales Officers of the respondent No. 3 inspected retail outlet at 236, A. J. C Bose Road on 14th September, 2002 in the presence of the representatives of the petitioners. During Inspection it was found on the spot in presence of the representatives of the petitioners that there was short delivery of petroleum products from the dispensing units and the retail outlet operated by the writ petitioners. Various irregularities were found as mentioned in the said report which has been annexed to the writ petition. In order to see that the consumers did not get short delivery of the petroleum/diesel from the dispensing units the Inspection team asked to stop sale until re-calibration is made by the Legal Metrology Department. The officers of the respondent no. Various irregularities were found as mentioned in the said report which has been annexed to the writ petition. In order to see that the consumers did not get short delivery of the petroleum/diesel from the dispensing units the Inspection team asked to stop sale until re-calibration is made by the Legal Metrology Department. The officers of the respondent no. 3 immediately served a letter dated 14th September, 2002 to the writ petitioners advising them to recalibrate and revamp the dispensing units by the Legal Metrology Department. Thereafter, the writ petitioners got the dispensing units of the retail outlet recalibrated and re-stamped by the Department of Legal Metrology of Government of West Bengal as per the advice served by the letter dated 14th September, 2002. Thus, the respondent No. 2 has every right of search and seizure in pursuance of the said order, 1998. The present writ petition has been moved challenging the authority of the officers of the Anti-Adulteration Cell under the Ministry of Petroleum and Natural Gas. Besides, by the aforesaid powers of the anti-Adulteration Cell, the respondent No. 3, Corporation has also right to inspect and check the dispensing units and to suspend supply of all products under the dealership agreement, and Order, 1998 and the revised Marketing Discipline Guideline, 2001 and the same has been confirmed by the Controller of Legal Metrology in its meeting held on 21st january, 2004. (6.) APART from stating the aforesaid fact in the affidavit-in-opposition the respondent Corporation has denied all the material facts stated in the petition. (7.) MR. Samir Talukdar, learned Advocate, appearing in support of the appeal, contends that learned Trial Judge ought not to have dismissed the writ petition, rather should have granted reliefs claimed therein. He would urge that the observation of the learned Single Judge is that the arbitration agreement contained in the dealership agreement is a factor for dismissal of the writ petition, is not the correct proposition of law. The arbitration agreement at the highest, according to him, is an alternative remedy and when there are allegations of arbitrary and mala fide action in the writ petition the Writ Court should have intervened in the matter. This has been well settled by the several pronouncements of the Supreme court. In support of his contention he relied on the following decisions viz. This has been well settled by the several pronouncements of the Supreme court. In support of his contention he relied on the following decisions viz. 2003 (5) SCC 194 , 2004 (3) SCC 553 , 2003 (2) SCC 107 . He further contends that when the writ petition has been admitted for hearing on affidavits on the plea of alternative remedy the writ petition should not have been dismissed. He has referred to an old decision of the Supreme court reported in AIR 1957 SC 1269. He then contends on merit that the officials of the respondent Corporation with the officials of the Anti-Adulteration Cell have no power or jurisdiction to conduct raid or to make search and seizure under the provisions of the Standards of Weight and measures (Enforcement) Act, 1985 and the Motor Spirit and High Speed diesel (Regulation of Supply and Distribution and Prevention) Order, 1998 (hereinafter referred to as the said order). According to him, whether there is shortage of stock and alleged adulteration in the petroleum product steps can only be taken by the authorities as mentioned in the said Act, 1985, not by any other person. The report on 14th September, 2002 as prepared as per illegal search and seizure is wholly incorrect and the same is belied by the subsequent report dated 16th September, 2002 made by the authorities as permissible under the Act, 1985. On 16th September, 2002 there has been no complain and it is reported that everything is in order as far as dispensing units are concerned. Had there been any illegality and irregularity the authority appointed under the said Act would have taken action. As such, story of alleged adulteration and shortage of stock of the petroleum product is absolutely concocted. Consequently, action taken by them on the face of this document is arbitrary, mala fide and high handed. In substance, he contends that there was no necessity or warrant for taking action taking advantage of the contractual provisions. He further contends that in the writ petition or in the affidavit-in-opposition and the documents annexed thereto it would appear that there is no disputed question of fact and no evidence is called for, and going by the report and other documents it is absolutely plain that the allegations against the writ petitioners are wholly unfounded. The learned Single Judge should not have dismissed the writ petition. (8.) MR. The learned Single Judge should not have dismissed the writ petition. (8.) MR. Goutam Chakraborty, learned Senior Counsel, appearing for the respondent Nos. 3, 4 and 5, at the first instance, contends that the appeal has now become infructuous as the allegations constituting challenge are directed against the report prepared by the Regional Director and Deputy Director of Anti-Adulteration Cell, Eastern Regional Office. The aforesaid department has been abolished and as such those officers are not the parties and they can no longer be parties to the writ petition. Therefore, report furnished by them cannot be challenged in absence of those persons. The action has been taken by his clients basing on the said report. The learned Trial Judge has found that no service was effected upon the said respondent Nos. 1 and 2 and the writ petition has been dismissed as such the contents of the report dated 14th September, 2002 remained unchallenged. (9.) NEXT, he contends that the relationship between the writ petitioner and the said Corporation is guided by the written agreement. It will appear from the relevant clauses viz. 13,19 and 37 that the stocks. and the installations and building and structures and machines belong to the Corporation. The writ petitioner has no right, title, interest therein. It is, thus, as a matter of right the said Corporation can enter the petroleum pump and go-down where stocks are stored and conduct search and seizure to safeguard its own property. The quality of the petroleum product supplied for retail sale and distribution to the customers is to be maintained and observed strictly in accordance with the standard and norms laid down by the aforesaid order. Thus, the right of the respondent corporation vis-a-vis obligation of the writ petitioners emanating from the said contractual right and obligation does not have any public character and element and it is purely a private contract. He contends, further, that when the terms of the agreement provide for carrying out search and inspection, and for taking action, question of lack of authority and jurisdiction of the said Corporation officials does not and cannot arise. According to him, the authority mentioned in the action which might be or could be taken under the Act, 1985 has nothing to do with the action taken by the Corporation officials with the help of the officials of the Anti-Adulteration Cell. According to him, the authority mentioned in the action which might be or could be taken under the Act, 1985 has nothing to do with the action taken by the Corporation officials with the help of the officials of the Anti-Adulteration Cell. On the date of search and seizure i. e. on 14th september, 2002 not only officials of the Anti-Adulteration Cell visited the said petroleum pump but also the appropriate officials were present there. He contends that any dispute in connection with contract including action taken, can very well be adjudicated by the alternative mechanism viz. the arbitration agreement being Clause 66. It is true that the respondent Corporation is a "state" within the meaning of Article 12 read with Article 226 of the Constitution of India still having regard to the nature of the dispute canvassed writ petition cannot be entertained. The learned Trial Judge, therefore, has rightly dismissed the writ petition. He contends, further, that when the agreement which is of a private nature and the disputes touching and relating thereto are absolutely covered by arbitration agreement the Writ Court will not be the appropriate forum and the parties should be asked to go to arbitration mechanism. In support of his contention he has relied on the following decisions of the Supreme court: AIR 1975 SC 1967 , AIR 1976 SC 127 , AIR 2003 SC 2881 , AIR 2005 SC 3454 , 2000 (JT) SC 167 : AIR 2003 SC 273. (10.) WE have heard the contentions and rival contentions of the parties and noted the same. In this case questions are whether learned trial Judge was justified in dismissing the writ petition on the ground of existence of the arbitration agreement contained in the dealership agreement, and further whether on the facts stated in the writ petition it should have been decided on merit or not. It appears to us that the learned single Judge has found that going by the report dated 14th September, 2002 the respondent Corporation is perfectly within their right to take action. The learned Trial Judge concluded whether the allegations contained in the said report dated 14th September, 2002 are correct or not and whether action taken by them was warranted or not are disputed questions of fact and the same can be effectively decided by the arbitration. The learned Trial Judge concluded whether the allegations contained in the said report dated 14th September, 2002 are correct or not and whether action taken by them was warranted or not are disputed questions of fact and the same can be effectively decided by the arbitration. The learned trial Judge has dismissed the writ petition as against the respondent Nos. 1 and 2 on the ground of non-service of the notice of the writ petition. (11.) IT is settled position of law that in the writ jurisdiction Court cannot decide justification of taking action or find out factual correctness of the allegations at least at the initial stage of authority concerned. The Writ court is to see whether the authority concerned has jurisdiction or authority to take any action or not at that stage and that too subject to the well-settled principle of exhaustion of alternative remedy. The learned Counsel for both the sides have brought a number of decisions on the question of alternative remedy. Those decisions have uniformly held that alternative remedy is not an absolute bar in entertaining the writ petition and further exhaustion of remedies is not a mandatory exercise and the same can be avoided in certain situation. (12.) IN the case of Harbanslal Sahnia andanr. v. Indian Oil Corporation limited and Ors. , reported in 2003 (2) SCC 107 it is held amongst others that arbitration agreement being a source of an alternative remedy is not bar in entertaining the writ petition if the complaints of the writ petitioners are amongst others (i) the petitioner seeks enforcement of any of the fundamental rights; (ii) allegations of failure of principles of natural justice or (iii) orders or proceedings are wholly without jurisdfction or the vires of an Act is challenged. (13.) IN the case of ABL International Limited and Anr. v. Export Credit guarantee Corporation of India Limited and Ors. , reported in 2004 (3) SCC 553 as a proposition of law the Supreme Court has held in Paragraph-19 after considering the judgment rendered in case of Gunwant Kaur v. Municipal Committee, Bhatinda, reported in 1969 (3) SCC 769 that merely because one of the parties to the litigation raised a dispute with regard to the facts of the case, the Court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the matter to the suit. The judgment rendered in Gunwant Kaur case was also followed in this judgment to the extent that in a writ petition, if the facts require, even oral evidence can be taken. Thus, in an appropriate case the Writ Court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation. (14.) IN the case of Union of India v. Hindalco Industries, reported in 2003 (5) SCC 194 it is observed that in an appropriate case the writ petition is not entertained not because of lack of jurisdiction but because of self-imposed restriction. In Paragraph-12 in this judgment it is ruled as follows:-"there, can be no doubt that in matter of taxation, it is inappropriate for the High Court to interfere in exercise of jurisdiction under Article 226 of the Constitution either at the stage of show-cause notice or at the stage of assessment where alternative remedy by way of filing a reply or appeal, as the case may be, is available but these are the limitations imposed by the courts themselves in exercise of their jurisdiction and they are not matters of jurisdictional factors. " (Emphasis supplied) (15.) IN the case of Mrs. Sanjana M. Wig v. Hindustan Petro corporation Limited, reported in AIR 2005 SC 3454 the Supreme Court while dealing with the termination of the dealership agreement in paragraph-12 held that ordinarily when dispute between the parties requires adjudication of question of facts wherefor the parties are required to lead evidence both oral and documentary which can be determined by a domestic forum chosen by the parties, the Court may not entertain a writ application. (16.) WHILE laying down this proposition of law the Supreme Court has relied on the cases of Titagarh Paper Mills Limited v. Orissa State electricity Board, reported in 1975 (2) SCC 436 and Biswas Tone v. Orissa a. C. Board, reported in AIR 1976 SC 127 . While deciding this the Apex court hastened to add in Paragraph-13 however, access to justice by way of public law remedy would not be denied when a Us involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief. While deciding this the Apex court hastened to add in Paragraph-13 however, access to justice by way of public law remedy would not be denied when a Us involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief. (17.) IN another decision reported in AIR 2000 SC 2573 (Kerala State electricity Board and Anr. v. Kurien E. Kalathil and Ors.) the Supreme Court in paragraph-10 has observed amongst others that a contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. (18.) A Division Bench of this Court in case of Hindusthan Petroleum corporation Limited and Ors. v. Shyam Sundar Ganeriwala, reported in 91 cwn 217 has held that when the rights and obligation emanating from a contract between the parties are involved the proceedings under Article 226 of the Constitution is hardly an appropriate remedy. (19.) AFTER careful reading and comparative study of all the decisions cited above it seems to us that the writ petition can be entertained even if disputes arise out of contract of private nature, if the action is a mala fide and arbitrary and without any authority either deriving from the contractual terms or otherwise provided the respondent is "state" within the meaning of Article 12 of the Constitution of India. Any action without authority strikes at the very root and such action is, ab initio, arbitrary. Action without having any authority is obviously one of the facets of arbitrary and mala fide action. If the party against whom allegations of arbitrary and mala fide charge have been made is a State or instrumentality of the State, regardless of the nature of the contract the writ petition can be entertained provided such action affects ones fundamental rights guaranteed in Part-Ill of the constitution of India. In case of statutory contracts the breach of the terms of the statutory contracts can also be remedied by the Writ Court but in that case the pre-condition would be that the dispute must have public element. While entertaining writ petition alleging breach of terms of the statutory contract if evidence is called for the Writ Court has jurisdiction to go to the extent of receiving evidence and there is no bar under Article 226. While entertaining writ petition alleging breach of terms of the statutory contract if evidence is called for the Writ Court has jurisdiction to go to the extent of receiving evidence and there is no bar under Article 226. But it is for the Writ Court to examine whether it would be convenient and proper to try the matter on witness action or receiving other evidence. From the facts and circumstances of this case it appears to us that admittedly there has been an agreement which in our view is of private character and nature though the object of the agreement is to sell and distribute the petroleum product to the public customers but this fact of contractual obligation on the part of the dealer is not of a public character. The Division Bench of this Court on earlier occasion has already decided not to entertain the writ petition in case of breach of such agreement of a private character. Now we have to examine whether the action taken by the respondent Corporation is without any authority meaning thereby it is arbitrary or mala fide or not. As rightly said by Mr. Chakraborty the relevant terms of the agreement are origin of power and such power has been conferred by both the contracting parties to take action in terms thereof. The aforesaid terms of the contract or contract itself are not challenged. So we cannot decide otherwise than what has been decided by the learned single Judge, that the respondent Corporation has authority to take action. Therefore, we are unable to accept the contention of Mr. Talukdar that the action of respondent is high handed or arbitrary on the given fact. We have gone through the report of the respondent authority contained in the memorandum dated 14th September, 2006 and prima facie it appears that there are allegations for taking action, and allegations can be true or untrue, but the same can be decided by the respondent authority themselves by virtue of arbitration agreement. We have gone through the report of the respondent authority contained in the memorandum dated 14th September, 2006 and prima facie it appears that there are allegations for taking action, and allegations can be true or untrue, but the same can be decided by the respondent authority themselves by virtue of arbitration agreement. As observed by the Supreme court ( AIR 2005 SC 3454 ) when it is found that the allegations of the breach of the terms of any subject matter relating to the rights and obligation of the contract can effectively be adjudicated by the alternative mechanism, in absence of allegations of element of arbitrariness and mala fide the Writ Court will not take the trouble of deciding this disputed question of fact. (20.) LEARNED Trial Judge, therefore, in our view, has rightly concluded that in this case the Writ Court is not the appropriate forum. We, therefore, hold that learned Judge has correctly dismissed the writ petition. (21.) THE contention of Mr. Talukdar that the Anti-Adulteration Cell or the officiate of the respondent No. 3 concerned have no jurisdiction, and authorities appointed under 1985 Act are the only competent persons to search and seize and to take action, is not acceptable because action which might be taken under the aforesaid Act is completely different from that of action taken in terms of the agreement. Action taken by the respondent No. 3 is in terms of the agreement and it is lawful for the respondents to proceed with such action, of course, in compliance with natural justice. For example, if an employee commits any penal offence under the penal laws the employee can be proceeded with as an offender and at the same time he can be proceeded with departmentally if the rules and regulations governing such employment permit so. (22.) SIMILARLY, in this agreement the respondent authority has every right to take action. Whether action is justified or not on fact or allegations contained in the report dated 14th September, 2002 are correct or not, can be proved by adducing evidence and by producing materials before the authority concerned. (23.) IN terms of our earlier interim order the action has already been taken. We desire that same shall be finally disposed of. Whether action is justified or not on fact or allegations contained in the report dated 14th September, 2002 are correct or not, can be proved by adducing evidence and by producing materials before the authority concerned. (23.) IN terms of our earlier interim order the action has already been taken. We desire that same shall be finally disposed of. We also direct the authority concerned that the materials which are relied on in this writ petition shall be examined and considered by the officials in terms of our interim order. We may not be understood that we have approved the legality or validity of the action taken on merit. We have merely held that the respondent No. 3 has jurisdiction and authority to proceed going by the face value of the report and nothing else. (24.) THE appeal is, thus, dismissed with the aforesaid observation. No order as to costs.