Judgment :- Common Judgment: (Smt T. Meena Kumari, J.) Challenging the order dated 01-05-2008 passed by a learned Single Judge of this Court, partly allowing writ petition No. 2085 of 2007, which was filed seeking a writ of Mandamus to declare the action of the 1st respondent therein in its letter No. 205/AE/PC/2005 dated 2-2-2007, terminating the Joint Development Agreement of the petitioner contained in the Agreement dated 8-2-2006 relating to development of Ac.35-05 of land in Sy.No. 1009/1/(P) situated at Kukatpally village, and Mandal, Ranga Reddy District, as arbitrary and illegal and further to direct the respondents herein to abide by the terms and conditions contained in the agreement dated 8-2-2006 and thereby enabling the petitioner to execute the project in terms of the said agreement on payment of total development fees as provided by schedule IV of the Agreement relating to development of Ac. 35-05 land in Sy. No.1009/1/(P) of Kukatpally village, these appeals are filed. 2. Since these two appeals arise out of a single judgment in the writ petition, and the question is common, we dispose of these two appeals together by a common judgment. 3. The appellant in W.A. No. 526 of 2008 is M/s. SITCO (Swarnandhra JMII Integrated Township Development Company) Pvt. Ltd., rep. by its Chief Operating Officer and Director, is the writ petitioner and the respondents herein the A. P. Housing Board rep. by its Vice Chairman and Housing Commissioner, respondents in the writ petition. The respondents in the writ petition are the appellants in W.A.No. 847 of 2008 and the writ petitioner is respondent. For convenient sake, the parties are hereinafter referred to with their original status as arrayed in the writ petition. 4. The writ petitioner questioned the action of the 1st respondent through its impugned letter No. 205/AE/PC/2005, dated 2nd February 2007 terminating the Joint Development Agreement dated 8th February 2006 for development of land admeasuring about Ac 35.05 gts., in Survey No. 1009/1 situated at Kukatpalli village and Mandal of Ranga Reddy District, as illegal and arbitrary and for a direction to the respondents to abide by the terms and conditions of the agreement dated. 8-2-2006 enabling the writ petitioner to execute the project in terms of the said agreement. 5. 8-2-2006 enabling the writ petitioner to execute the project in terms of the said agreement. 5. The case of the writ petitioner was that it is a Joint Sector company promoted by the first respondent A.P. Housing Board and M/s. IJM (India) Infrastructure Limited, a Company registered under the Companies Act, 1956 on the share holding basis and the share of the petitioner company is 51%, whereas the 1st respondent Housing Board has got 49% share, that the 1st respondent-Board, which is the owner of the above said land of Ac 35.05 gts had decided to develop the same by constructing residential and commercial space. That being so, the petitioner company, which is already executing another project with the 1st respondent-Board on another parcel of land, offered and submitted its suo motu proposals and an undertaking dated. 26-10-2005 to the Housing Board for the development of the said residential and commercial space. It had offered developmental fee for the development and undertook to pay process fee getting for said residential commercial space. Having received the said proposals and suo motu undertaking, the first respondent-Housing Board has invited bids from prospective bidders under the Swiss Challenge Process with a view to derive market driven price as against the price offered by the petitioner-company i.e., M/s. SITCO (Swarnandhra IJMII Integrated Township Development Company) Private Limited (hereinafter referred to as ‘SITCO’), which is called as original proponent and the first respondent Board as the State Agency. It is also agreed by the petitioner company to match the offer of the top rank bidder and pay the entire development fee in five instalments. In pursuance of said agreement, the petitioner company had paid first instalment aggregating to Rs.27,89,97,520/- representing 20% of total development fee at the time of entering the agreement. In furtherance of the proposal and agreed terms, petitioner company also furnished a bank guarantee for the total development fee amounting to Rs.108,48,80,000/-. Consequent on the payment of the first instalment and furnishing the bank guarantee, an agreement was entered into by the 1st respondent-Board with the petitioner company on 8th February 2006 on the agreed terms and conditions. In furtherance of the proposal and agreed terms, petitioner company also furnished a bank guarantee for the total development fee amounting to Rs.108,48,80,000/-. Consequent on the payment of the first instalment and furnishing the bank guarantee, an agreement was entered into by the 1st respondent-Board with the petitioner company on 8th February 2006 on the agreed terms and conditions. It is the further case of the petitioner company that in letter No. 205/AE/PC/2005, dated 15th December 2006, purportedly in exercise of the powers under clause 7.1.2 received by it from the respondents Board alleging the default in payment of 2nd instalment of 20% and also informing the petitioner company that there is a short fall of Rs.10.00 lakhs in the first instalment and the 2nd instalment of 20% of the fee has to be paid. It is also alleged in the letter that the petitioner company has to pay the 2nd instalment of 20% of development fee only on the issuance of Power of Attorney by the 1st respondent in favour of the Company, or three months from the agreement date, whichever is earlier. It is further stated in the said letter that an additional area of Ac 1.018 gts., handed over to the petitioner company and the differential bank guarantee also has to be furnished by the petitioner, apart from paying the defaulted amount within a period of 30 days. A reply has been issued by the petitioner company dated 10.01.2007 in letter No. APHB/SITCO/07-002, informing that there was no default on their part in payment of instalments amount and the 2nd instalment is payable only on issuance of the power of attorney by the first respondent-Board in their favour and as the same is not yet received, the question of default in payment would not arise. It is also stated that the first respondent-Board addressed a further letter dated 24.01.2007 to the petitioner in letter No. 205/AE/PC/2005 informing them that 2nd, 3rd and 4th instalment amounts of development fee had fallen due on 08.05.2006, 09.08.2006 and 09.12.2006 respectively and the company was directed to pay entire amount without any further delay and also indicated the action to be taken if the amount is not paid as per the agreement. By letter dated. By letter dated. 29.01.2007 also the Housing Board directed the petitioner company to pay the defaulted amount and further alleged that there is a violation of the terms of the agreement as the petitioner had started construction of electric sub-station, which was intended for Phase-I, in the Phase-II area. In reply to the said letters, the petitioner company has replied on 29-01-2007 disputing the payment schedule on the ground that the first respondent-Board has failed to discharge its obligation in executing the power of attorney in terms of the agreement dated 8-02-2006 and hence the company is not liable to pay the development charges as per the agreement. On 2-2-2007 by letter No. 205/AE/PC/05 it was informed by the first respondent-Board that the petitioner company has resorted to unauthorized constructions in violation of the terms and conditions of the agreement and also not adhering to the payment schedule in terms of the said agreement and there is a conscious failure in payment of instalment amounts. Therefore, the respondent-Board terminated the agreement dated 8-2-2006. The said termination was in terms of clause 7.1.3 of the agreement entered into by the first respondent with the petitioner company and the Board also rejected the request of the petitioner for arbitration saying that the dispute is not arbitrable. Questioning the said letter, the writ petition was filed. 5. It was the contention of the learned counsel for the writ petitioner that after the proposal of the petitioner was accepted a letter of award was issued on 31-12-2005, the possession of the land has also been handed over to the petitioner on 2-5-2006 and it carried out large scale development activity by incurring an expenditure of about 8 to 9 crores of rupees. Questioning the termination of the agreement dated 8-2-2006 and also the action of the first respondent in encashing the bank guarantee that was given towards the total development fee, as unconstitutional and contrary to Section 23 of the Indian Contract Act the petitioner invoked the jurisdiction of this Court. 6. In the counter filed by the first respondent a preliminary objection was raised stating that the deponent of the petitioner company was not competent to initiate the proceedings on the ground that there is no authorization in his favour and as such the writ petition is not maintainable. 6. In the counter filed by the first respondent a preliminary objection was raised stating that the deponent of the petitioner company was not competent to initiate the proceedings on the ground that there is no authorization in his favour and as such the writ petition is not maintainable. It is also stated in the counter affidavit that the petitioner company has given suo motu proposals to purchase the land for executing a joint venture with the 1st respondent-Board under the development and share holding agreement dated. 4-11-2003 and also submitted a suo motu proposal to the 1st respondent to purchase additional peace of land measuring Ac 35.05 gts., and the same is covered by Agreement dated 8.2.2006. It is admitted in the counter that 1st respondent Board had received the first instalment of 20% of the total development charges but has denied the averment that 2nd instalment fell due only on the execution of the power of attorney. It is stated in the counter that the terms of the agreement, the correspondence and undertaking given by the petitioner company have to be read conjointly and harmoniously but not in isolation. They have admitted that in pursuance of the suo motu undertaking dated 26-05-2005 the Board has invited tenders calling for Request for Proposal (hereinafter called as ‘RPF’ for brevity) for selection of a private developer for modern township in the land measuring Ac 35.05 situated at Kukatpalli through Swiss Challenge Bidding. They also admitted that the petitioner matched the offer of the top rank bidder and the acceptance of the offer of the petitioner was subject to the terms of RFP and the suo motu undertaking dated 26-05-2005. It is also agreed that the permissive possession was handed over to the petitioner to enable it to commence the work, but there was no obligation to the first respondent-Board to handover possession in terms of the agreement. 7. It was also averred in the counter that having admitted the permissive possession, it is not open to the petitioner to contend that the 2nd instalment is payable only on the issuance of Power of Attorney as the permissive possession given to the petitioner is one of the authorizations under Power of Attorney. 7. It was also averred in the counter that having admitted the permissive possession, it is not open to the petitioner to contend that the 2nd instalment is payable only on the issuance of Power of Attorney as the permissive possession given to the petitioner is one of the authorizations under Power of Attorney. Further, it is not open for the petitioner to postpone the payment schedule with regard to 2nd instalment amount and that as the petitioner has done the construction works un-authorizedly, the first respondent-Board terminated the contract through the impugned letter. It is also contended that the termination of the agreement was rightly done as per clause 7.1.3 of the agreement-dated 8.2.2006. It is also stated that as per the terms of the agreement under clause 3.1 of the agreement, handing over possession was linked to Power of Attorney and having taken possession, the petitioner cannot contend that the 2nd instalment is payable only on the issuance of the power of attorney. 8. On behalf of the petitioner company, an additional affidavit was filed before the learned Single Judge against the contention of the first respondent-Board that the deponent of the company is not authorized to initiate the proceedings, stating that by the resolution of the Board of Directors of the petitioner company dated. 15-07-2006, the deponent Sri Manjit Singh Brar is authorized to represent the petitioner Company to initiate the proceedings and that by the resolution dated 24-03-2007 it was declared that the termination of the contract is detrimental to the interest of the company and a resolution was passed ratifying the action of the deponent Manjit Singh Brar in seeking legal redressal. 9. In the reply filed by the petitioner to the counter affidavit, it was further stated that as the petitioner has paid 20% of the developmental fee towards the first instalment and also furnished the bank guarantee towards the total development fee, the first respondent-Board has delivered the possession of the land for carrying out developmental work on preliminary site clearance works and after delivery of the possession, the petitioner had incurred huge expenditure for carrying out the site clearance work ; that it is the first respondent who has committed breach of the terms and conditions of the agreement dated. 8-2-2006 by not issuing the power of attorney and hence the petitioner could not continue with the execution of the work. 8-2-2006 by not issuing the power of attorney and hence the petitioner could not continue with the execution of the work. It was also stated that the termination of contract is arbitrary and violative of Article-14 and hence the matter was agitated under Article 226 of the Constitution of India. 10. It was the contention of the learned counsel for the respondents that the writ petition is not maintainable as the subject matter arises out of the contractual rights between the petitioner company and the respondents and this court has no power to interpret the agreement. Before the learned single Judge, counsel for the first respondent took objection that the writ petition itself is not maintainable as there were several factual disputes in the matter. It is also contended that the relevant clauses of the agreement dated 8-2-2006 have to be read as part and parcel of the earlier agreement dated 26-05-2005 and if they read conjointly the appellant is bound to pay the 2nd instalment on issuance of power of attorney or within three months from the date of the agreement whichever is earlier and as per the Swiss challenge bidding as the petitioner company has submitted its proposals, the 2nd instalment would be payable within a period of 3 months from the date of the agreement or from the date of issuance of power of attorney whichever is earlier and as the petitioner had failed to pay the 2nd instalment within the time specified, the first respondent-Board rightly terminated the agreement and hence the writ petition is not maintainable and is liable to be dismissed. 11. Learned single Judge, having heard both the counsel and taking into consideration the rival contentions raised by both parties, referring to the case law mainly relying on Noble Resources Limited,(2006(10)SCC 236)and applying the law laid down by the apex court, held that the writ petition is maintainable and thereby allowed the writ petition by holding that the impugned termination order dated 02-02-2007 issued in Lr.No.205/AE/PC/2005 terminating the agreement dated 8.2.2006 is illegal and set aside the impugned letter. But at the same time, the learned single Judge observed that the petitioner is also not entitled to have the benefit of contract pursuant to the agreement dated 8th February 2006 so as to proceed further in accordance with the same. But at the same time, the learned single Judge observed that the petitioner is also not entitled to have the benefit of contract pursuant to the agreement dated 8th February 2006 so as to proceed further in accordance with the same. Learned single Judge also observed that the first respondent-Housing Board shall refund to the petitioner, the development fee paid by him, without any interest, within a period of two months from today. Learned single Judge further observed that the bank guarantee furnished by the petitioner towards the entire development fee in terms of the agreement dated 8th February 2006 shall be released in favour of the petitioner. It further observed that in case the 1st respondent-Housing board decides to proceed with the earlier plan of developing the site in question, it may do so by initiating fresh process. Aggrieved by the said observation the petitioner- company preferred W.A.No. 526 of 2008 stating that the learned Single Judge exceeded in granting such directions which are beyond the scope of the writ petition. The first respondent-Housing Board also preferred appeal in W.A. No. 847 of 2008 aggrieved by the order of the learned single Judge for setting aside the termination order by allowing the writ petition. 12. Both the parties have raised several contentions on the same lines that were urged before the learned single judge. 13. Learned counsel Mr. Vedula Venkata Ramana appearing for the petitioner company submits that there was no disputed question of fact, that Housing Board wanted to read the original letter of offer as part of the contract i.e., letter dated 26-10-2005, which is not incorporated in the agreement, and as such the writ petition is maintainable. Learned counsel also submits that the 2nd instalment was payable only on the issuance of the power of attorney as per the terms of the agreement dated 8-2-2006. Learned counsel also submits that the 2nd instalment was payable only on the issuance of the power of attorney as per the terms of the agreement dated 8-2-2006. Learned counsel also submits that the Request for Proposal (herein after referred to as ‘RPF’ for brevity) document is only a proposal inviting tenders for the selection of the private developer and in the absence of any incorporations of the conditions laid down in the offer letter and undertaking of the original proponent, the conditions of the undertaking which are meant only for matching the offer and to invite tenders from the prospective bidders, and in the absence of incorporating the same in the original agreement, the same cannot be read as a part and parcel of the original agreement dated 8.2.2006. He further submits that the conditions as laid down in the agreement dated 8-2-2006 alone would prevail and bind the parties and the contract could not be terminated invoking the powers under clause 7.1.3 of the agreement as the first respondent-Housing Board has not discharged its obligation in issuing a power of attorney in favour of the petitioner company so as to enable the petitioner to pay the 2nd instalment of the development fee, which is, as per the agreement, payable only after issuance of the power of attorney. To support his contention, learned counsel brought to the notice of this Court various clauses of the agreement and also relied on schedule-4 of the agreement regarding the payment of development fee. Learned counsel further argued that once payment is made as per the schedule-4 of the agreement, the petitioner cannot be termed as defaulter and that the first respondent has utterly failed in discharging its obligation in issuing the power of attorney in favour of the petitioner company. It is also contended that though the contract is under Swiss challenge method the contractual terms of the agreement dated. 8-2-2006 would only govern the parties. 14. It is contended by the respondents that the petitioner having issued notice under Section 80 CPC and chosen the remedy of filing the suit, cannot invoke the provisions of Article 226 of the Constitution of India. 15. Learned senior Counsel Mr S R Ashok appearing on behalf of the respondent-Housing Board, argued that the writ petition is not maintainable since several factual disputes arise for consideration.. 15. Learned senior Counsel Mr S R Ashok appearing on behalf of the respondent-Housing Board, argued that the writ petition is not maintainable since several factual disputes arise for consideration.. In support of the said proposition learned counsel relied upon decisions reported in Asst, Excise Commissioner v. Issac Peter( 1994 (4) SCC 104 ), Bareilly Development Authority v Ajai Pal Singh( 1989(2) SCC 116 ), State of U.P. v Bridge & Roof Company (India) Ltd., (1996)6 SCC 22 . 16. Learned senior counsel also submitted that the petitioner is guilty of breach of the conditions of the contract; that the petitioner could not secure approvals; and according to the RFP document the petitioner is under obligation to secure all approvals from the concerned before asking for issuance of power of attorney; that the effective date would be as per clause 3.1, the date on which the appellant obtain all approvals for the contemplated project and as the petitioner has failed to obtain approvals in terms of the RFP effective date has not come into effect and hence issuing of power of attorney would not arise and therefore there is no cause of action for the petitioner to demand power of attorney at any time much less it had ever asked for power of attorney. He also submitted that six months period was limited in the RFP for securing approvals and as the petitioner could not get approvals and committed default, the termination of the agreement is legal and valid. Learned Senior Counsel further argued that the agreement dated 8-2-2006 cannot be read in isolation and it shall be read conjointly with the Proposal (RFP) submitted by the petitioner wherein it was stated that the 2nd instalment development fee i.e., 20% of the total development fee, was payable within three months from the date of agreement and as the petitioner failed in discharging its obligation in paying the 2nd instalment, by invoking clause 7.1.3 of the agreement, the respondent-Board terminated the contract. Learned counsel also argued that the construction work started by the petitioner company is without any authority and on that ground also the termination of agreement is valid. Learned counsel further argued that as there are several disputed questions of fact are involved in this case, the petitioner cannot invoke the jurisdiction of this Hon’ble Court under Article 226 of the Constitution. Learned counsel further argued that as there are several disputed questions of fact are involved in this case, the petitioner cannot invoke the jurisdiction of this Hon’ble Court under Article 226 of the Constitution. Learned counsel further argued that the relief granted by the single Jude in the writ petition to the effect that “….However, at the same time, the petitioner is also not entitled to have the benefit of contract pursuant to the agreement dated 8th February 2006 so as to proceed further in accordance with the same. Respondent No.1/Housing Board shall refund to the petitioner, the development fee paid by him, without any interest, within a period of two months from today. Further the bank guarantee furnished by the petitioner towards the entire development fee in terms of the agreement dated 8th February 2006 shall be released in favour of the petitioner. However, it is also made clear that in case the 1st respondent-housing board decides to proceed with the earlier plan of developing the site in question, it may do so by initiating fresh process” is beyond the scope of the writ petition. Learned senior counsel would contend that the writ petition is not maintainable and that the learned single Judge erred in exercising the discretion as the relief sought for is in the form of Specific Performance of the Contract and the principle of interference would apply in contra appeals if two different views are possible. There are several serious disputed questions of fact involved herein to be decided and hence the writ petition itself is not maintainable. Learned counsel further argued that the petitioner having issued notice under Section 80 CPC, ought to have chosen the remedy of civil suit but not the writ petition and therefore the writ petition is not maintainable. He also argued that the learned single Judge has not given any reasons to come to the conclusion that the writ petition is maintainable. 17. In reply thereto learned counsel for the petitioner has argued that in the reply letter the petitioner has stated that he issued notice only to save the time as he was not sure by that time as to which remedy he has to choose. 17. In reply thereto learned counsel for the petitioner has argued that in the reply letter the petitioner has stated that he issued notice only to save the time as he was not sure by that time as to which remedy he has to choose. Learned counsel further argued that the learned single Judge after referring to various clauses in the agreement and having satisfied and also relying upon law laid down by the apex Court in Gangasaran & Sons Private Limited v Sachdeva Offset & Packing Industries Pvt. Ltd.,(1998 Company Cases 351), Hindustan Petroleum Corporation Ltd. V. Sardar Chand( AIR 1991 P&H 185 ), held that the deponent of the writ affidavit is competent to pursue the litigation. Learned counsel also relied upon the above decisions and also a decision between Sunil Pannalal Banthia v City and Industrial Development Corporation of Maharashtra Ltd., ( 2007(4)SCALE216) and Noble Resource Limited vs., State of Orissa ( 2006(10) SCC 236 ) for the proposition that deponent of the writ affidavit has every right to issue or initiate proceedings on behalf of the petitioner company. 18. Turning to the facts of the case on hand, regarding the authorization of Mr. Manjit Singh Brar to initiate proceedings on behalf of the petitioner company, though it is the contention of the learned counsel for the respondent Board that he has no authorization, yet, in view of the resolution of the Board of Directors of the petitioner-company dated 15-7-2006 and further resolution dated 24-3-2007 passed by the petitioner accepting the action taken by the deponent, it cannot be said that the deponent was not competent to initiate the proceedings. Further, the learned single Judge also relying on the case law reported in Hindustan Petroleum Corporation Ltd., v., Sardar Chand AIR 1991 Punjab & Haryana 185 held that the deponent, who is also one of the directors of the petitioner company, is competent to initiate the proceedings. In the above said judgment, it was observed at para 5 that “5. Further, the learned single Judge also relying on the case law reported in Hindustan Petroleum Corporation Ltd., v., Sardar Chand AIR 1991 Punjab & Haryana 185 held that the deponent, who is also one of the directors of the petitioner company, is competent to initiate the proceedings. In the above said judgment, it was observed at para 5 that “5. The Board of Directors, thus, was the authority under the Articles of Association, as referred to above to take a decision regarding institution or defending the suits.” In the light of the above decision and in view of the fact that the deponent is also one of the Directors of the company, and in view of the ratification of his action by way of resolutions in the Board of Directors meeting, Mr. Manjit Singh Brar was competent to file writ petition. 19. Learned counsel for the petitioner further argued that as the first respondent-Housing Board is a State Authority under Article 12 of the Constitution of India, and it is a major shareholder in the proposed development, any failure on the part of the housing board would be amenable to writ jurisdiction and it has got an obligation to discharge and perform its statutory duty and non-performance of the same is amenable to writ jurisdiction under Art. 226 of Constitution and therefore the State Authority cannot be allowed to act arbitrarily. MAINTAINABILITY OF WRIT PETITION 20. The learned counsel for the petitioner has argued with regard to maintainability of the writ petition stating that there is no bar for filing a writ petition under Art. 226 of Constitution in contractual matters and it is not a bar to avail the other remedy merely on the existence of suitable alternative remedy and it is also a discretion vested with the High Court to issue a writ and as the learned single Judge has exercised its discretion, a Division Bench sitting on the appellate side cannot interfere with such discretion. 21. On the other hand, learned senior Counsel Mr. S R Ashok has contended that the petitioner has suppressed the fact of issuance of notice under Section 80 CPC before the single Judge and had it been brought to the notice of the learned single Judge, the result would be otherwise and hence the writ petition has to be dismissed on the ground of suppression of fact. 22. S R Ashok has contended that the petitioner has suppressed the fact of issuance of notice under Section 80 CPC before the single Judge and had it been brought to the notice of the learned single Judge, the result would be otherwise and hence the writ petition has to be dismissed on the ground of suppression of fact. 22. Learned Single Judge having satisfied that the action of the housing board would be amenable to writ jurisdiction, set aside the impugned letter, but, however has held that the petitioner is not entitled to have the benefit of contract pursuant to agreement dated 8-2-2006 and also held that first respondent has failed to give detailed reasons in support of the allegations of default of payment of 2nd instalment on the part of the appellant as contemplated under clause 7.1.2. Learned Single Judge negatived the contention of the petitioner that clause 7.1.3 of the agreement dated 8-2-2006 is contrary to Section 23 of the Indian Contract Act. 23. The Apex Court already held in Noble Resource limited vs., State of Orissa 2006 (10) SCC 236 and also in International Airport Authority (AIR1979 Supreme Court 1628), held that when the State Corporation would be backing out of its obligation and a writ of mandamus can be issued directing the corporation to perform its obligations and duties. Further in Jemshed Hormusji Wadia vs., Board of Trustees, Port of Mumbai and another (2004)3 SCC 214 the Apex court while dealing with Articles 12 & 14 of the Constitution of India and the authority of State and its obligations, observed at para 17 that “xxxxxxxxxxxxxxxxxx It is not as if the requirements of Article 14 and contractual obligations are alien concepts which cannot coexist. Our Constitution does not envisage or permit unfairness or unreasonableness in State action in any sphere of activities contrary to the professed ideals in the Preamble. Exclusion of Article 14 in contractual matters is not permissible in our constitutional scheme. In P.J. Irani v. State of Madras the the Constitution Bench observed that a tenant in a building owned by the State or its instrumentality is not liable to eviction solely because the tenancy has terminated. The existence of rent control legislation, though not applicable to such building, is suggestive of the State’s policy of protecting tenants because of the great difficulty of their obtaining alternative accommodation. 18. The existence of rent control legislation, though not applicable to such building, is suggestive of the State’s policy of protecting tenants because of the great difficulty of their obtaining alternative accommodation. 18. xxxxxxxxxxxxxxxxxxxxx 19.xxxxxxxxxxxxxxxxxxxAt the same time the liberty given to the State and its instrumentalities by the statute enacted under the Constitution does not exempt them from honouring the Constitution itself. They continue to be ruled by Article 14. The validity of their actions in rent control legislation but under the Constitution. The rent control legislations are temporary, if not seasonal; the Constitution is permanent and an all-time law.” In another between “The D.F.O South Kheri and others, v. Ram Sanehi Singh, AIR1973 Supreme Court 205 the Supreme Court while dealing with a case where the action of a public authority invested with statutory powers is challenged; observed that the writ petition is maintainable even if the right to relief arises out of an alleged breach of contract. In the said decision, at para 4 the Apex Court observed that “4. xxxxxxxxxxxx We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of writ. In view of the judgment of this Court in K.N. Guruswamy’s case (1955)1SCR305=(AIR 1954 Supreme Court 592) there can be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power.” 24 So, in view of the above legal position, the respondent Board being the State Authority, has an obligation to discharge its duty and perform its obligations, and if any violation of the same, a writ petition is maintainable. Therefore, in the instant case, questioning the termination of the agreement on the ground of breach of contract entered into with the State authority, the writ petition filed by the petitioner company invoking the jurisdiction of Article 226 of the Constitution is maintainable and in our opinion the observations of the learned single judge relying on Noble Resources Ltd., and Mahabir Auto Stores vs., Indian Oil Corporation ( 1990 (3) SCC 752 ), that the writ petition is maintainable cannot be interfered with. SUPPRESSION OF FACT 25. As stated above, the contention of the respondent Board is that the petitioner has suppressed the factum of issuance of notice under Section 80- C P C and therefore on this ground alone the writ petition is liable to be dismissed. With regard to the issuance of notice under Section 80 CPC, the argument of the learned counsel for the petitioner company was that there is no suppression of fact. Even though the factum of Section 80 notice was not brought to the notice of the learned single judge, it has no significance for the reason that as he has already filed writ petition and chosen the remedy of writ jurisdiction and as there is no bar for filing a writ petition, it does not amount to suppression of fact. Further as the learned single Judge has exercised his discretion and such discretion cannot be interfered with by a Division Bench under the appellate jurisdiction. 26. Though, learned senior counsel for the respondent Board contended that the petitioner having issued notice under Section 80 CPC, has no right to invoke the jurisdiction of High Court under Art. 226 of the Constitution of India, but, we find some force in the submission made by the learned counsel for the petitioner that the said notice was issued only as a precaution and the company has every right to choose any of the options available to it and therefore it had opted to file writ petition. Further, in a similar circumstances, the apex court in S J S Business Enterporises (P) Ltd., vs., State of Bihar and others AIR 2004 Supreme Court 2421 observed that “13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. Further, in a similar circumstances, the apex court in S J S Business Enterporises (P) Ltd., vs., State of Bihar and others AIR 2004 Supreme Court 2421 observed that “13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter, which was material for the consideration of the Court, whatever view the court may have taken. ….” 14. xxxxxxx The existence of an adequate or suitable alternative remedy available to a litigant is merely a fact or which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. XxxIf however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition.,,……..the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226“ So, in view of the above legal position, the petitioner company has got every right to either to proceed with the alternative remedy or with the application under Article 226. In the present case on hand, it is the case of the petitioner that it had opted to proceed with the application under Article 226 and therefore the contention of the respondent Board cannot be accepted. 27. In the present case on hand, it is the case of the petitioner that it had opted to proceed with the application under Article 226 and therefore the contention of the respondent Board cannot be accepted. 27. It is to be observed that as the petitioner is claiming his right under the agreement entered with a statutory body, there is an obligation on the part of the housing board to discharge its duty to act upon in furtherance of the contract and there is a duty cast upon the Board to execute power of attorney when the conditions to agreement would envisage that the 2nd instalment has to be paid on issuance of the power of attorney as per schedule-4. In the absence of any clause that ‘Request for Proposal’ document is also a part and parcel of the original agreement, it can be held that the respondent board has failed in discharging its obligation to issue a power of attorney and therefore it can be termed as an arbitrary act done by the board and hence the dispute is amenable to writ jurisdiction. Thus, we are not agreeable to the contention of the counsel for the respondents that no mandamus can be issued in the particular circumstances of the case. Even assuming that the petitioner has suppressed the factum of issuing of notice under Section 80 C.P.C, it is not a material fact which goes to the root of the matter, and on that ground alone the petitioner cannot be non-suited. FINANCIAL CAPACITY 28. Further, learned senior Counsel for the respondents also argued that in view of clause 7 of the undertaking dated. 26.10.2005, which set out that the petitioner undertook to pay the 2nd instalment “on issuance of power of attorney or three months from the agreement date whichever is earlier”, the petitioner has to pay the 2nd instalment after three months from the date of the agreement. It is also argued that due to lack of financial capacity the petitioner company could not pay the 2nd instalment of development charges as per the undertaking and also failed in getting necessary approvals from the concerned authorities and as such the Board has every right to terminate the contract. 29. It is also argued that due to lack of financial capacity the petitioner company could not pay the 2nd instalment of development charges as per the undertaking and also failed in getting necessary approvals from the concerned authorities and as such the Board has every right to terminate the contract. 29. In reply thereto the learned counsel for the petitioner argued that the petitioner is already doing execution of work of another phase with the first respondent-Housing Board and the present one is the second venture and the petitioner has already paid the first instalment and also furnished bank guarantee for Rs. 108,48,80,000/- and hence the contention of the respondents board that the petitioner has no financial resources is without any basis and it is only invented to support their action for termination of the agreement. 30. It is also contended by the learned counsel for the petitioner company that the petitioner, after the judgment of the learned single judge in the writ petition, and after filing of the present appeal, has received a courier service from the respondent-board, but the same was returned to the respondent itself and he presumed that the said cover is one which would be the material containing refund of first instalment and also the bank guarantee, but the same is returned to with the respondents. 31. On this aspect, though the said contention was not raised before the learned single judge, yet a perusal of the material would go to show that the petitioner has paid the first instalment of development charges at 20% as per the payment schedule and also furnished a bank guarantee for nearly Rs 108.49 crores towards the total development fee. When the petitioner was able to furnish the bank guarantee for a huge sum of Rs 108.49 crores, and having paid the 1st instalment of development fee, it cannot be said that it is not in a position to pay the 20% of the amount towards 2nd instalment of development fee, and as such it cannot be said that the petitioner has no financial capacity to discharge its obligation and thus the contention of the respondent cannot be accepted. 32. This is a case where Housing Board has chosen to select a private developer through Swiss challenge bidding for the development of the land of nearly Ac 35-05 cents at Kukatpalli area. 32. This is a case where Housing Board has chosen to select a private developer through Swiss challenge bidding for the development of the land of nearly Ac 35-05 cents at Kukatpalli area. The petitioner being one of the executants of the development of adjacent land, according to the appellant, Phase-I, it has come forward for developing the land in question also and submitted suo moto proposals which were put to other tenderers by way of ‘RFP’ document so that the proponent i.e., the petitioner company would match with the other bidders. The RFP document was also filed as one of the material papers in the writ appeal. The condition No. 4.2 in ‘RFP’ states about “PROJECT”. In Clause 4.1 under the caption “BACKGROUND”, it was stated that “APHB encourages private sector participation in its developmental initiatives. Development of 34.71 acres at Kukatpally, Rangareddy District through a Joint Sector company M/s. Swarnandhra-IJMII Integrated Township Development Co. Pvt. Ltd., (SITCO) is one of such development initiative where APHB has 49% equity participation.” Clause 4.2 of RFP document deals with the ‘PROJECT’, under which it is stated that “APHB proposes to select a Successful Bidder through Swiss Challenge Bidding to design, finance, build, maintain, operate market and transfer the project for residential and commercial development.” The details contained in the tabular form are i.e., the location at Kukatpalli, approximate size in acres is Ac 9.50 for Residential (maximum 30% commercial) and Ac 26.00 Residential (maximum 10% commercial) totaling to Ac 35.50 cents or as per Permitted Development-(Refer to Clause 4.4 of the document. ) TABLE It is also stated therein that “The Successful Bidder would be given a Power of Attorney to develop, construct and market the Project.” Clause 4.3 under the caption “COMMERCIAL CONSIDERATION”, reads as follows “In return for the Power of Attorney to undertake development of the said site, the Successful Bidder shall pay APHB a share of the Gross Revenue.” Clause 4.4 of the ‘RFP’ deals with the PERMITTED DEVELOPMENT which says that “Successful Bidder would have to complete construction within 30 months from the grant of the Power of Attorney. Clause 5.1 deals with “SWISS CHALLENGE PROCESS AND ITS SCOPE”, wherein it is stated that “the original proponent will be given an opportunity to offer a quote equal to or higher than the Counter Proposal (“First Right of Refusal”.). Clause 5.1 deals with “SWISS CHALLENGE PROCESS AND ITS SCOPE”, wherein it is stated that “the original proponent will be given an opportunity to offer a quote equal to or higher than the Counter Proposal (“First Right of Refusal”.). If the original proponent is able to match the Counter Proposal within the time frame detailed in this RFP document, the project shall be awarded to the Original Proponent.” Clause No. 9.3 deals with EVALUATION OF COMMERCIAL OFFERS, wherein it is stated that “the Bidder offering the highest Development fee per Acre would be designated the Top Ranking Bidder.” Clause No. 9.4 deals with SELECTION OF SUCCESSFUL BIDDER. 30. By letter dated 14-11-2005 the petitioner company had agreed to abide by the decision of the APHB to award the development of the land, and with regard to the two undertakings submitted by the petitioner confirming their acceptance, it is stated that “ we would now like to amend our earlier offer to Rs.2,25,00,000/- per acre for the entire parcel of approximately 26 acres as against the differential offer indicated in the said Undertaking to enable Andhra Pradesh Housing Board (APHB) to evaluate Counter Proposals received from bidders pursuant to the Swiss Challenge bidding. We maintain our offer of Rs. 2,50,00,000/- per acre for the other parcel of land admeasuring approximately 9.50 acres.” It was referred to the undertaking dated. 26-10-2005, which is captioned as ‘UNDERTAKING FROM SITCO FOR AREA MEASURING NEARLY 26 ACRES”. Clause 7 of the said undertaking dated. 26-10-2005, deals with PAYMENT TERMS: The said clause reads as follows: “SITCO, in the event is awarded the development right for the said parcel of land pursuant to the Bidding Process, shall undertake to pay to APHB the Final Offer Price upon the terms mentioned herein below: TABLE Interest at the rate of 6.5% per annum would be payable in respect of instalments 2, 4 and 4 as laid out in payment schedule table detailed herein above, with reference to agreement date. 33. The second part of ‘RFP’ contains the definitions and other particulars of the agreement, wherein different clauses have been defined. Clause ‘1.1.15’ deals with the definition of ”EFFECTIVE DATE” “Effective date means the date on which all the Conditions Precedent are satisfied or waived in writing by both the Parties and the Power of Attorney is executed by APHB in favour of the Developer Company”. Clause ‘1.1.15’ deals with the definition of ”EFFECTIVE DATE” “Effective date means the date on which all the Conditions Precedent are satisfied or waived in writing by both the Parties and the Power of Attorney is executed by APHB in favour of the Developer Company”. Further clause 1.1.14 deals with “Drop Dead Date” “Drop Dead Date means the date occurring upon the expiry of six months from the Agreement Date or such other date as may be agreed to in writing between the parties.” Clause 1.1.23 deals with “Power of Attorney” “Power of Attorney means the power of attorney given to the Developer Company for development/ construction and sale of the properties developed under the Project and executed in the format given in SCHEDULE 1: Power of Attorney.” The other conditions have not been set in. Clause 9 of the ‘RFP’ part-II, deals with ‘CONDITIONS PRECEDENT’, which reads as follows: “9. Condition Precedent 9.1 The Drop Dead Date shall be the date occurring upon the expiry of six months from the Agreement Date or such other date as may be agreed to in writing between the parties. 9.2 The rights and obligations of the Parties shall terminate if the following events are not satisfied by the Drop Dead Date. 9.2.1 The developer Company having achieved Financial Commitment. 9.2.2 The Developer Company obtaining FIPB and other Approvals required for the commencement of the project, as provided under section 8.1 of the agreement. 9.2.3 Xxxxx 9.3 xxxxxxxxxxxxxxxxxxxxxxxxxxx 9.4 xxxxxxxxxxx” Clause 8 of this RFP deals with Approvals; “8. Approvals 8.1 The Developer Company shall obtain all Approvals from Governmental Authorities and other Persons for purposes of the Project including Approvals for (i) constructing and developing the Project and (ii) operating and maintaining the Project in accordance with the terms of this Agreement, the Basic Documents and Applicable Law. 8.2 APHB shall exercise………………… 8.3 Xxxxxxxxxxxxxxxx “ From the above, clause 9.2 deals with the rights and obligations of the parties to terminate the agreement in the case of the events are not satisfied which are detailed as above. 34. The counsel also brought to our notice about clause 16 of the RFP part-II that deals with the Events of default, as follows: 16. 34. The counsel also brought to our notice about clause 16 of the RFP part-II that deals with the Events of default, as follows: 16. Events of Default 16.1 Developer company Events of Default 16.1.1 The following events shall be construed as events of default on the part of Developer Company (“Developer Company Default Event”) (i) The Developer Company not paying APHB any Development Fee and /or Revenue Share Amount payable in accordance with the provisions of this Agreement. (ii) The Developer Company committing a material breach of the provisions of this Agreement. (iii) Xxxx (iv) Xxx (v) Xxx (vi) Xxxx (vii) Xxx (viii) Xxxxx 16.1.2 Without prejudice to the provisions of Section below, upon the occurrence and continuation of any Developer Company Default Event as stated in Section 16.1.1, APHB may deliver a notice to the Developer Company. Such notice shall specify in reasonable detail the breach, default or failure to which such notice relates. 16.1.3 Whereas the Developer Company commits a default in respect of the payment of the instalments due towards the Development Fee under this Agreement, APHB shall be entitled immediately upon expiry of 30 (thirty) Business days from the date of receipt of the notice specified in Section 16.1.2 by the Developer company to make a drawing or request for payment of the defaulted amount under the Bank Guarantee issued and maintained pursuant to section 2.9. In respect of Developer company Default Event under Sections 16.1.1(i), 16.1.1(iv), 16.1.(vii), 16.1.1(viii), APHB shall be entitled immediately to terminate this Agreement and revoke the Power of Attorney and proceed with the encashing/invoking of the Bank Guarantee for the amounts due to APHB.” Then SCHEDULE 1 POWER OF ATTORNEY (Draft Power of Attorney by APHB-Ltd); In the above document, Schdule-5 deals with the payment schedule, which is extracted hereunder: SCHEDULE 5 : Payment Schedule for Development Fee. TABLE From a perusal of the draft power of attorney and the payment schedule mentioned therein, wherein it is mentioned that the 2nd instalment of payment shall be “On issue of Power of Attorney”, the 2nd instalment would become due only on the issuance of Power of Attorney by the 1st respondent Board, and since the 1st respondent-Board failed in issuing the power of attorney in favour of the petitioner company, in spite of payment of first instalment and furnishing bank guarantee for Rs. 108,48,80,000/- the question of default in payment of the 2nd instalment does not arise. 35. Learned counsel also argued that original agreement has been entered into between the parties on 8.2.2006 i.e., between the Andhra Pradesh Housing Board and the petitioner in the writ petition i.e., M/s. Swarnandhra-IJMII Integrated Township Development Co. Pvt. Ltd., (SITCO). In the said agreement, under Clause 1- Definitions and Interpretations were dealt with, wherein, 1.1.5. “Basic Documents” means this Agreement and the Power of Attorney; 1.1.10 “Development Fee” shall mean the consideration payable as per Section 4.2 of the Agreement. 1.1.16 “Power of Attorney” means the power of attorney given to the Developer Company for development/construction and sale of the properties developed under the project and executed in the format given in SCHEDULE 1:Power of Attorney; In the agreement clause 2 deals with the obligations of the Developer Company 2. Obligations of the Developer Company; 2.1 The developer company shall design, plan, finance, market, develop necessary infrastructure, provide necessary services, operate and maintain the infrastructure administer and manage the Project and shall for such purposes, do all such acts, deeds and things as may be required in accordance with the terms and conditions set out in this Agreement. 2.2 The Developer company shall adhere to the development control Rules, the principles of good industry…..xxxxxxx 2.3 Construction and development of the Project 2.3.1 The developer company, either by itself or with the help of Contractors, shall carry out and complete at its own cost the construction and development of the Project, including such activities that may be required to level the said parcel of land, relocation/resettlement etc., 2.3.2 The Developer company shall secure at his own cost the provision of water and electricity supply and telecommunications lines, sewerage, and drainages to be brought to the periphery of the said land. 2.3.3 The Developer company shall complete construction of the Project within 30 months from the date of signing of the Power of Attorney” 2.4 Furnishing of Bank Guarantee 2.4.1 The Developer company shall furnish to APHB the original of the Bank Guarantee for an amount equal to the outstanding Development Fee before the Agreement Date days as security for performance of its obligations in respect of the timely payment of instalments towards the Development Fee, as stipulated under this Agreement. All charges, fees, costs and expenses related to the Bank Guarantee shall be borne and paid by the developer Company. The Developer company undertakes and warrants to APHB that the bank guarantee furnished as above shall be irrevocable and shall continue to be effective and enforceable till the full and final payment of the development fee in respect of such instalments outstanding. The format for the bank guarantee is provided in Schedule 5 ; Format of Bank Guarantee. 2.4.2 Upon receipt by APHB of an instalment towards the Development Fee, the amount of the bank guarantee shall be reduced to the extent of such receipt. 2.4.3 The Developer company undertakes that the Bank Guarantee shall be payable immediately on demand and without the assertion of any defences on part of the Developer Company. From the above, as per clause 2.3.3 of the agreement, the developer shall complete construction of the Project within 30 months from the date of signing of the Power of Attorney. The said clause would go to show that the developer company has to complete the construction within 30 months from the date of the signing of the power of attorney. Further clause 2.4.2 makes it clear that the APHB on receipt of the amount of an instalment, the amount of bank guarantee shall be reduced to the extent of such receipt. 36. In the very same agreement clause 3 deals with APHB’s obligation, which reads as follows; 3. APHB’s Obligation; 3.1 Subject to the other provisions of this agreement, APHB shall enter into a Power of Attorney in the format specified in SCHEDULE 1; Power of attorney with the developer company on the Effective Date and make available the said parcel of land on an “as-is-where-is-basis” , for the developer company to undertake and execute the project in accordance with the terms and conditions mutually agreed between the parties.’ 3.2 xxxxxxxxxxxxxxx 3.3xxxxxxxxxxxxxxxx” Further clause 4 of the Agreement deals with the Commercial Consideration, which is mentioned as under; 4. Commercial Consideration 4.1 In consideration of the APHB granting the Power of Attorney, the Developer company shall pay to APHB the amounts as given below: 4.2 Development Fee’ 4.2.1 The developer company shall pay to APHB the consideration of Rs 3.82 crores per acre in the manner specified in SCHEDULE 4: PAYMENT SCHEDULE FOR DEVELOPMENT FEE OF THIS AGREEMENT. Commercial Consideration 4.1 In consideration of the APHB granting the Power of Attorney, the Developer company shall pay to APHB the amounts as given below: 4.2 Development Fee’ 4.2.1 The developer company shall pay to APHB the consideration of Rs 3.82 crores per acre in the manner specified in SCHEDULE 4: PAYMENT SCHEDULE FOR DEVELOPMENT FEE OF THIS AGREEMENT. 4.2.2 Interest at the rate of 6.5% per annum from the Agreement date would be payable in respect of outstanding instalments as laid out in SCHEDULE 4; Payment schedule for Development Fee. Therefore, as per the above clause, the developmental fee has to be paid by the petitioner-company being the developer company, as per SCHEDULE 4 of the agreement. Schedule 4 reads as follows: SCHEDULE 4 : Payment Schedule for Development Fee. TABLE A perusal of the Schedule 4 which deals with payment schedule for development fee in categorical terms discloses that the developer company has to pay the 2nd instalment of development fee “on issuance of Power of Attorney” by the 1st respondent-Board at the rate of 20% of the total consideration. 37. The default Clauses of the agreement i.e. Clauses 7.1.1, 7.1.1 (i), 7.1.2 and 7.1.3 are extracted as under :- “7.1.1. The following events shall be construed as event of default on the part of Developer Company (“Developer Company Default Event”): 7.1.1(i)The Developer Company not paying APHB any Development Fee in accordance with the provisions of this Agreement; 7.1.2. Without prejudice to the provisions of Section below, upon the occurrence and continuation of any Developer Company Default Event as stated in Section 7.1.1, APHB may deliver a notice to the Developer Company. Such notice shall specify in reasonable detail the breach, default or failure to which such notice relates. 7.1.3. Where the Developer Company commits a default in respect of the payment of the instalments due towards the Development Fee under this Agreement, APHB shall be entitled immediately upon expiry of 30(thirty) Business days from the date of receipt of the notice specified in Section 7.1.2 by the Developer Company to make a drawing or request for payment of the defaulted amount under the Bank Guarantee issued and maintained pursuant to section 2.9. In respect of Developer Company Default Event under Sections 7.1.1(i), 7.1.1(iii), 7.1.1(v), 7.1.1(vi), 7.1.1(vii), APHB shall be entitled immediately to terminate this Agreement and revoke the Power of Attorney and proceed with the encashing/invoking of the Bank Guarantee for the amounts due to APHB.” 38. Learned counsel for the petitioner has argued that except stating that the effective date is the date of the agreement, the agreement did not specify what would be the effective date and the power of attorney has to be issued as per Schedule-1 and payment of 2nd instalment shall be as per Schedule-4 of the Agreement dated 8-2-2006. The agreement was signed by both the parties. Learned counsel further argued that the respondent company is bound to discharge its obligation in issuing the power of attorney so as to ensure the petitioner company to discharge its obligation for the purpose of developing the property and sale of the properties developed under the project. Unless the power of attorney is issued, the petitioner company cannot get the approvals from various authorities. 39. In the light of the above contentions, the effective date does not find place in the Agreement dated 8-2-2006 and it can be looked into from the definitions mentioned in the RFP document part-I contained in clause 1.1.15 which states that the “effective date means, the date on which the power of attorney is executed by APHB in favour of the developer company”. 40. Under the above circumstances and after referring to various clauses of the agreement dated. 8-2-2006 as well as the RFP document, We find some force in the contention of the learned counsel for the petitioner that even though the draft agreement contained many number of clauses, the same are absent in the original agreement and that the original agreement varied with the draft agreement and that the effective date has not come into force for the reason that the power of attorney has not been executed which fact is remain undisputed. 41. Further, even though the draft agreement contained the events of defaults under clause 16, under clause 16.1 events of defaults of the developer company were mentioned. Further, clause 16.1.3 says that if the developer-company commits default in payment of instalments, the APHB shall be entitled to terminate this Agreement and revoke the power of attorney and proceed with the encashing of the bank guarantee for the amount due. Further, clause 16.1.3 says that if the developer-company commits default in payment of instalments, the APHB shall be entitled to terminate this Agreement and revoke the power of attorney and proceed with the encashing of the bank guarantee for the amount due. From the above clause it can be deduced that the APHB has to first execute power of attorney in favour of the petitioner company and in case of any default as specified, then only the Board can revoke the power of attorney and encash/invoke the bank guarantee for the amount due to it. Further, the termination of agreement arises only after execution of power of attorney and not before that. 42. As regards the impugned letter in the writ petition is concerned, it is to be observed that clause 7.1.3 of the agreement also deals with the termination of agreement and revocation of the power of attorney and to proceed with the encashment of bank guarantee and the payment shall be as per schedule-4 and hence the petitioner-company is liable to pay the 2nd instalment on issuing of power of attorney in its favour by the 1st respondent-Board, which is simultaneous and as the Board has failed in discharging its obligation in issuing the power of attorney as contained in the agreement, the petitioner-company could not pay the 2nd instalment, but in the meanwhile, the company received the termination notice. 43. Lot of correspondence took place between the parties, though the three (3) months time was mentioned in the draft agreement (RFP), but in the original agreement dated 8.2.2006 it was mentioned that the 2nd instalment of 20% of the total amount shall be payable only on issuance of Power of Attorney. Therefore, in the absence of such condition that the 2nd instalment should be paid on issuing the power of attorney or 3 months which ever is earlier, the conditions mentioned in the agreement alone will prevail but not the draft conditions (RFP) and as such the contention of the respondent-Board that the petitioner-company failed to discharge its obligation cannot be accepted. 44. It is also the case of the petitioner company that in the absence of power of attorney, the petitioner could not prepare its plans and get the permission from the concerned authorities. 44. It is also the case of the petitioner company that in the absence of power of attorney, the petitioner could not prepare its plans and get the permission from the concerned authorities. The stand of the Board in the notice that the condition No. 7.1.3 is violated and thereby the agreement is terminated is only an after thought on the part of the respondent Board. 45. It is also argued by the learned counsel for the petitioner that even assuming that there is a default, the Board is entitled to deduct the same from the bank guarantee already furnished for a huge amount of Rs.108,48,80,000/- which is made available to the respondent-Board. Further more an interest component at the rate of 6.5% is also there and hence it is not an absolute right conferred in favour of the respondent-Board to terminate the agreement as it is subject to so many conditions and it is only an after thought on the part of the respondent Board to issue the impugned final letter dated 2-2-2007 terminating the agreement. One of the letters of the Board was referred to 15-12-2006, which had mentioned about non-payment of 2nd instalment of the developmental fee and directing them to make payment along with interest within 30 days. But, in the final letter of termination, it is mentioned about the petitioner resorting to unauthorized construction, which did not form part of any of the earlier correspondence between the parties, the petitioner company stated the necessity for making such constructions. As it was not a very serious lapse on the part of the petitioner company, and as it had already been informed to the respondent-Board that the petitioner company constructed an electric sub-station for rain tree park, Phase-II, the agreement cannot be terminated on that ground. It is also contended that by the letter dated 30-1-2007, the petitioner had brought to the notice of the respondent Board with reference to the discussions they had and it is also stated in the said letter that with the consent of the APHB the construction work of the Utilities has been started and will be completed as early as May 2006; that the construction was made for both Raintree Park Phase-I & II. Further, there is no mention in clause 7.1.3 or in any other clause that if any unauthorized constructions are made, the Board has every right to terminate the contract. Learned single Judge also find with reference to the unauthorized construction, the petitioner was not notified by giving details of such construction, which are in breach of the proposal submitted by the petitioner and the terms of the agreement dated 8-2-2006. 46. There is no material placed before this Court that the parties have arrived at a consensus with regard to the conditions of the agreement. 47. The agreement conditions would go to show that the payment shall be made as per Schedule-4 of the agreement and there is no clause in the agreement dated 8-2-2006 that the Request for Proposal (RFP) shall become part and parcel of the agreement and the invocation of the condition 7.1.3 is not envisaged as it deals only with the defaults as contained in the other clauses and there is no material placed before this court that the petitioner company was put to notice as to the unauthorized constructions prior to issuance of termination of the agreement and on the ground of unauthorized constructions, the contract can be terminated. For the first time it was envisaged in the termination letter as observed by the learned single Judge. It is a case where both the parties have acted upon the agreement entered into and the Housing Board having entered into the agreement, failed to discharge its performance and duty, whereas the petitioner company has acted upon it and that it is a case where the undisputed fact remains that the respondent board being a statutory authority, under Article 12 of the Constitution of India, a duty is cast upon it to act in a fair and reasonable manner and if the action on the part of the State is unfair, a writ petition would be maintainable even in the contractual field. Further, in pursuance of the agreement entered into between the parties, the petitioner had incurred huge expenditure in fulfilling the agreement. The undisputed fact is that the petitioner company had furnished a bank guarantee for the total development fee and there is a clause in the agreement that if any default is committed, the respondent can claim interest at 6.5% p.a., in respect of instalments and proportionate amounts can be deducted from the bank guarantee. The undisputed fact is that the petitioner company had furnished a bank guarantee for the total development fee and there is a clause in the agreement that if any default is committed, the respondent can claim interest at 6.5% p.a., in respect of instalments and proportionate amounts can be deducted from the bank guarantee. As per the above conditions of the agreement, unless the power of attorney is issued, the petitioner could pay the 2nd instalment and discharge its obligation of obtaining approvals of plans etc. 48. It is to be observed that as the petitioner is claiming its right under the agreement entered with a statutory body, and as there is an obligation on the part of the housing board to discharge its duty to act upon in furtherance of the contract and as there is a failure on the part of the Board in execution of power of attorney and as the 2nd instalment has to be paid on issuance of the power of attorney as per schedule-4, the termination of contract can be said to be unreasonable and illegal. In the absence of any clause that ‘Request for Proposal’ document is also a part and parcel of the original agreement, it can be held that the respondent-Board has failed in discharging its obligation to issue a power of attorney and therefore the termination of agreement can be termed as an arbitrary act done by the Board and hence the dispute is amenable to writ jurisdiction. Thus, the contention of the counsel for the respondents that no mandamus can be issued in the particular circumstances of the case cannot be accepted. However, it has to be held that the observations of the learned single judge that “petitioner is also not entitled for continuance of the contract at this point of time on the same terms and conditions” are erroneous and are set aside. For the aforementioned discussion, I allow the W.A.No. 526 of 2008 filed by the SITCO and consequently, the writ petition No. 2085 of 2007 is allowed. The W.A.No. 847 of 2008 preferred by the Housing Board is dismissed. JUDGMENT (Per Ramesh Ranganathan, J.) I have had the privilege of perusing the judgment prepared by my learned Sister Smt. Justice T. Meenakumari. The W.A.No. 847 of 2008 preferred by the Housing Board is dismissed. JUDGMENT (Per Ramesh Ranganathan, J.) I have had the privilege of perusing the judgment prepared by my learned Sister Smt. Justice T. Meenakumari. While I agree that W.A.No.847 of 2008 filed by the A.P. Housing Board is liable to be dismissed, I am unable to concur either with the analysis or the conclusion that W.A.No.526 of 2008 should be allowed in its entirety and regretfully, therefore, venture to write a separate judgment. 2. Both the petitioner, and the respondent-Board, in the writ petition have filed Writ Appeal Nos. 526 and 847 of 2008 respectively aggrieved by the order of the learned Single Judge in W.P. Nos 2085 of 2007 dated 01-05-2008. Parties shall hereinafter be referred to as they are arrayed in the Writ Petition. Since the learned Single Judge has dealt with it elaborately, the facts of the case, except to the extent relevant, do not bear repetition herein. Suffice to note that the learned Single Judge, relying on the judgment of the Supreme Court in Noble Resources Ltd. v. State of Orissa (2006) 10 SCC 236 = 2006 (8) SCJ 648 and ABL International Limited v. Export Credit Guarantee Corpn. of India Limited (2004) 3 SCC 553 , rejected the contention of the respondent-Board that the proper forum for alleged breach of a non-statutory contract, more so, when it involved disputed questions of fact, was the Civil Court of competent jurisdiction and that the writ petition was not maintainable. The learned Single Judge held that a suit notice, issued under Section 68 of the Andhra Pradesh Housing Board Act, 1956 (for short-'the Act') would not deprive the petitioner of the remedy which they were otherwise entitled to and, if more than one remedy was available, it was for the party to select the one which was more appropriate and beneficial, having regard to the facts and circumstances of the case. 3. While setting aside the order dated 02-02-2007 terminating the agreement dated 08-02-2006, upon holding that the action of the respondent-Board was illegal, arbitrary and in violation of Article 14 of the Constitution of India, the learned Single Judge, however, held that the petitioner was not entitled to have the benefit of the contract pursuant to the agreement dated 08-02-2006 so as to proceed further in accordance with the same. The respondent-Board was directed to refund to the petitioner the development fee paid by him without any interest within a period of two months, and to release in his favour the bank guarantee furnished towards the entire development fee in terms of the agreement dated 08-02-2006. The Learned Single Judge also held that, in case the respondent-Board decided to proceed with the earlier plan of developing the site in question, it may do so by initiating fresh proceedings. 4. Sri V.Venkataramana, learned counsel for the petitioner, would submit that termination of the agreement was in total disregard of the terms and conditions of the contract and that the learned Single Judge had rightly concluded that such termination was arbitrary and in violation of Article 14 of the Constitution of India. Learned counsel would contend that entertaining a writ petition involving contractual disputes was well within the discretion of the learned Single Judge and that the Division Bench, in an intra Court appeal, should not interfere with the exercise of such discretion. While submitting that the learned Single Judge was justified in entertaining the writ petition, learned counsel would contend that it was not obligatory that detailed reasons should be furnished for entertaining a writ petition involving contractual disputes. Learned Counsel would place reliance on Noble Resources Ltd. (supra), Sunil Pannalal Banthia v. City and Inds. Dev. Corpn., Maharashtra (2007) 4 SCALE 216, ABL International (supra), Guruswamy v. State 166 of Mysore AIR 1954 SC 592 , D.F.O., South Kheri v. Ram Sanehi AIR 1973 SC 205 , M/s. Kasturi Lal v. State of J. and K. AIR 1980 SC 1992 , India Thermal Power Limited v. State of M.P. AIR 2000 SC 1005 = 2000 (3) AL T 1.2 (DNSC), Royal Laboratories v. Labour Court, Hyderabad 1984 (2) AL T 207 (D.8.), Mys. S.R.T. Corpn. V. Mirja Khasim AI R 1977 SC 747, Manjunath Anandappa v. Tammanasa AIR 2003 SC 1391 , Krishena Kumar v. Union of India (1990) 4 SCC 207 , M/s. Dwarkadas Marfatia and Sons v. Board of Trustees, Bombay Port AIR 1989 SC 1642 , Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai (2004) 3 SCC 214 = 2004 (3) AL T 9.4, 11.1 (DNSC) and S.J.S. Business Enterprises (P) Ltd. v. State of Bihar (2004) 7 SCC 166 . 5. 5. On the other hand, Sri S.R. Ashok, learned Senior Counsel appearing for the respondent-Board, would submit that the jurisdiction of the High Court under Article 226 of the Constitution of India was barred in respect of non-statutory contracts, more particularly contracts such as the one involved in the present writ petition, that, while disputed questions of fact in the public law domain may be examined in writ proceedings, those in the private law realm were better relegated to an• adjudication by a competent Civil Court, that in Gunwant Kaur v. Municipal Committee, Bhatinda (1969) 3 SCC 769 and Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipal Council (1970) 1 SCC 582 , which were relied upon in ABL International(supra), the dispute was in the public law realm and that in ABL International (supra) there were no disputed questions of fact. According to the learned Senior Counsel, even assuming that this Court had the discretion to entertain a writ petition involving disputes relating to non-statutory contracts, it was only if the Court was satisfied that interference was justified would it exercise its discretion to entertain a writ petition, that, while the rule is to relegate parties to a civil suit, entertaining non-statutory contractual disputes in writ proceedings is an exception, that a dispute of this nature could not be entertained because the relief sought for by the petitioner herein was for specific performance of the agreement, that this Court should refuse to exercise its discretion in an intra-court appeal only if two views were possible, that the view taken by the learned Single Judge was a view which could not have been taken at all and, therefore, interference by the Division Bench was necessary, that in the present case the dispute related to interpretation of various clauses of the agreement, that the understanding of both parties, of the clauses therein, were at variance and that the entire controversy could be unravelled only after evidence was adduced and the disputes adjudicated in a civil suit before the competent civil court. Learned Senior Counsel would submit that Guruswamy (supra) was a case of a statutory authority exercising statutory power and was in the public law realm, that, even otherwise, it is only for weighty reasons, in exceptional circumstances, and if, in the peculiar facts of the case, larger public interest is adversely affected or the contract is unconscionable or is in violation of Article 14, would this Court exercise its discretion to interfere. Learned Senior Counsel would submit that the nature of dispute was determinative, that no reasons were assigned by the learned Single Judge for entertaining the writ petition, that the disputed questions of fact involved in the present writ petition were as to what constituted the contract, what were the obligations of each party, when was each party required to perform its obligations, whether the petitioner had performed its obligations in accordance with the agreement, whether the contractual understanding was modified expressly or impliedly by subsequent conduct, attitude, behaviour and understanding and whether termination of the agreement was proper. Learned Senior Counsel would rely on Lekhraj v. Deputy Custodian, Bombay (1966) 1 SCR 120 = AIR 1966 SC 334 , Banchhanidhi v. State of Orissa AIR 1972 SC 843 = (1972) 4 see 781, Har Shankar v. Dy. E. and T. Commr. AIR 1975 SC 1121 , Mirja Khasim (supra); Divisional Forest Officer v. Bishwanath Tea Co. Ltd. (1981) 3 SCC 238 , State of Gujarat v. M.P. Shah Charitable Trust (1994) 3 SCC 552 = 1994 (2) AL T 20 (DN), State of U.P. v. Bridge and Roof Co. (India) Ltd. (1996) 6 SCC 22 , Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 293 , National Highways Authority of India v. Ganga Enterprises (2003) 7 SCCe 410 = 2003 (6) AL T 38.1 (DNSe), Pimri Chinch wad Municipal Corpn. v. Gayatri Construction Co. (2008) 8 SCC 172 = 2008 (6) SCJ 940, ABL International (supra), Haryana Financial Corpn. v. Jagdamba Oil Mills (2002) 3 SCC 496 = 2002 (1) AL T 31.2 (DNSC), S.L. Kapoor v. Jagmohan AIR 1981 SC 136 , Life Insurance Corpn. of India v. Asha Gael (2001) 2 see 160 = 2001 (2) AL T 25.3 (DNSC), Union of India v. SP. v. Jagdamba Oil Mills (2002) 3 SCC 496 = 2002 (1) AL T 31.2 (DNSC), S.L. Kapoor v. Jagmohan AIR 1981 SC 136 , Life Insurance Corpn. of India v. Asha Gael (2001) 2 see 160 = 2001 (2) AL T 25.3 (DNSC), Union of India v. SP. Anand (1998) 6 SCC 466 = 1998 (5) AL T 7 (DN), K.o. Sharma v. Steel Authority of India Ltd. 2008 (3) CCC 433 = 2008 (6) SCJ 205. 6. On the question of maintainability of a writ petition involving contractual disputes, a distinction must be made between statutory and non-statutory contracts. A contract would not become statutory simply because it has been awarded by a statutory body. Merely because the obligations imposed by the contract, on the contracting parties, come within the purview of the Contract Act, that would not make the contract statutory. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied for every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have the power to contract or deal with property. Such activities may not raise any issue of public law. (Kerala State Electricity Board (supra)). 7. Merely because a contract is entered into in exercise of an enabling power conferred by a statute would not by itself render the contract statutory. It is only if entering into a contract containing the prescribed terms and conditions is a must under the statute would the contract be statutory in character. A contract may contain terms and conditions which may not be statutory and which have been incorporated therein as a result of mutual agreement between the parties. [India Thermal Power Ltd. (supra)] 8. We are, however, saved the trouble from examining this question any further, as both Sri V. Venkataramana, Learned Counsel for the petitioner and Sri S.R. Ashok, Learned Senior Counsel appearing on behalf of the respondent-Board, would agree that the contract, in the case on hand, is a non-statutory contract. 9. [India Thermal Power Ltd. (supra)] 8. We are, however, saved the trouble from examining this question any further, as both Sri V. Venkataramana, Learned Counsel for the petitioner and Sri S.R. Ashok, Learned Senior Counsel appearing on behalf of the respondent-Board, would agree that the contract, in the case on hand, is a non-statutory contract. 9. On the question whether a writ petition would lie under Article 226 of the Constitution of India for resolution of contractual disputes, or for enforcement of obligations arising there from, one line of judicial pronouncement of the Supreme Court is that the remedy under Article 226 of the Constitution of India is barred in such matters. In Lekhraj (supra), the Supreme Court held that a writ of mandamus may be granted only in a case where there is a statutory duty imposed, there is failure to discharge that statutory obligation and that any duty or obligation arising out of a contract cannot be enforced by the machinery of a writ under Article 226 of the Constitution. In Banchhanidhi (supra) the Supreme Court held that a right claimed in terms of a contract cannot be enforced in a writ petition. In Har Shankar (supra), a Constitution Bench of the Supreme Court held that a writ petition was not an appropriate remedy for impeaching contractual obligations. In Radhakrishna Agarwal v. State of Bihar (1977) 3 SCC 457 , the Supreme Court, following Har Shankar (supra), held:- "...... Even if the appellants could be said to have raised any aspect of Article 14 of the Constitution and this Article could at all be held to operate within the contractual field whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been urged before the High Court. And in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that the State, acting in its executive capacity through its officers, has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties. . .. . On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties. . .. . ." (emphasis supplied) 10. In Bishwanath Tea Co. Ltd. (supra) the Supreme Court held that, ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, or for damages, that such a suit would ordinarily be cognizable by the Civil Court and that the High Court, in its extraordinary jurisdiction, would not entertain such a petition. In Bareilly Development Authority v. Ajai Pal Singh (1989) 2 SCC 116 , the Supreme Court held that where the contract, entered into between the State and the person aggrieved, was non-statutory and the rights were governed only by the terms of the contract, no writ or order could be issued under Article 226 of the Constitution so as to compel the authority to remedy the breach of contract and that the High Court in such cases could not examine the question of arbitrariness and unreasonableness on the part of the State or its instrumentalities. In M.P. Shah Charitable Trust (supra) the Supreme Court held that if the matter is governed by a contract, a writ petition is not maintainable since it is a public law remedy and is not available in the private law field. In Asstt. In M.P. Shah Charitable Trust (supra) the Supreme Court held that if the matter is governed by a contract, a writ petition is not maintainable since it is a public law remedy and is not available in the private law field. In Asstt. Excise Commissioner v. Issac Peter (1994) 4 SCC 104 = 1994 (2) ALT 23 (DN) the Supreme Court held that there was no room for invoking the doctrine of unjust enrichment in business transactions, that the rule of promissory estoppel and estoppel by conduct could not be invoked to alter or amend specific terms of the contract, that the rule of legitimate expectation could not be invoked to modify or vary the express terms of the contract, that in case of contracts freely entered into with the State, there was no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State), for the purpose of altering or adding to the terms and conditions of the contract and that, in such cases, the mutual rights and liabilities of the parties are governed by the terms of the contract and the laws relating to contracts. 11. In State of UP. v. Bridge and Roof Co. (India) Ltd. (supra) the Supreme Court held that the contract between the parties was a contract in the realm of private law, that any dispute relating to interpretation of the terms and conditions of such a contract could not have been agitated in writ petition and that it was a matter either for arbitration as' provided by the contract or for the civil court, as the case may be. In Kerala State Electricity Board (supra) the Supreme Court held that the interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition, that if a term of a contract is violated, ordinarily, the remedy is not a writ petition under Article 226, that the contract between the parties was in the realm of private law, that disputes relating to interpretation of the terms and conditions of a non-statutory contract could not have been agitated in a petition under Article 226 of the Constitution of India and that it was a matter for adjudication by a civil court or in arbitration if provided for in the contract. 12. 12. In State of Bihar v. Jain Plastics and Chemicals Ltd. 2001 (8) Supreme 334 = AIR 2002 SC 206 the Supreme Court held that while it was true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits but that was hardly a ground for exercise of the extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract, that such seriously disputed questions or rival claims of the parties with regard to breach of contract was to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a Court exercising the prerogative of issuing writs. 13. In National Highways Authority of India (supra) the Supreme Court held that disputes relating to contracts cannot be agitated under Article 226 of the Constitution of India. In Pimri Chinch wad Municipal Corpn. (supra), the Supreme Court, following its earlier judgments in National Highways Authority of India (supra), Kerala State Electricity Board (supra), India Thermal Power Ltd. (supra), and Bridge and Roof Co. (India) Ltd. (supra), held that the High Court ought not to have entertained a writ petition involving contractual disputes. 14. There is, however, another line of decisions of the Supreme Court wherein it has been held that where the action of the State or its instrumentalities, even in contractual matters, is in violation of Article 14, a writ petition would lie, that entertaining such disputes was in the discretion of the High Court and that the scope of judicial review, in such contractual disputes, was limited. 15. In Guruswamy (supra), a Constitution Bench of the Supreme Court observed:- "... .The next question is whether the appellant can complain of this by way of a writ. In our opinion, he could have done so in an ordinary case. The appellant is interested in these contracts and has a right under the laws of the State to receive the same treatment and be given the same chance as anybody else. ...." 16. In our opinion, he could have done so in an ordinary case. The appellant is interested in these contracts and has a right under the laws of the State to receive the same treatment and be given the same chance as anybody else. ...." 16. In D.F.O., South Kheri (supra), the Supreme Court expressed their inability to hold that merely because the source of the right which the respondent-Board claimed was initially in a contract, he must resort to a suit, and not to a petition by way of a writ for obtaining relief against any arbitrary and unlawful action on the part of a public authority and that, in view of the judgment in Guruswamy (supra), there could be no doubt that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract, where the action challenged was of a public authority invested with statutory power. 17. In Board of Trustees, Bombay Port (supra), the Supreme Court held that a public body must act in public interest, and an infraction of that duty is amendable to examination either in a civil suit or in writ jurisdiction and that, if a governmental policy or action even in contractual matters failed to satisfy the test of reasonableness, it would be unconstitutional. In Mahabir Auto Stores v. Indian Oil Corpn. (1990) 3 SCC 752 , the Supreme Court observed that if governmental action, even in matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable and that the decision of the State/public authorities under Article 298 of the Constitution was an administrative decision and could be impeached on the ground that the decision was arbitrary or in violation of Article 14 of the Constitution of India or any other ground available in the public law field. 18. 18. In Asha Goel (supra) the Supreme Court held that it cannot be laid down as a general proposition of law that in no case the High Court can entertain a writ petition under Article 226 of the Constitution to enforce a contractual claim, that the matter was to be considered in the facts and circumstances of each case, that if the contract entered into between the parties provided an alternate forum for resolution of disputes arising from the contract, then the parties should approach the forum agreed by them and the High Court in writ jurisdiction should not permit them to bypass the agreed forum of dispute resolution and that, ordinarily, the High Court should not entertain a writ petition for mere enforcement of a claim under a contract. 19. In ABL International (supra) the Supreme Court held that there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact and that, in cases where there is a contravention of Article 14, a writ court can issue suitable directions to set right such arbitrary action. The Supreme Court laid down the following legal principles as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 20. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable. 20. The Supreme Court further held that, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the High Court, having regard to the facts of the case, has the discretion to entertain or not to entertain in writ petition, that this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate Article 14, that the scope of judicial review in respect of disputes falling within the domain of contractual obligations is limited and, in doubtful cases, the parties may be relegated to adjudication of their rights by resort to the remedies provided for adjudication of purely contractual disputes, but to the extent challenge is made on the ground of violation of Article 14 by alleging that the impugned act is arbitrary, unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would not relieve the State of its obligation to comply with the basic requirements of Article 14 and that this obligation is of a public character. 21. In Jamshed Hormusji Wadia (supra) the Supreme Court, relying on its earlier decision in Shrilekha Vidyarthi v. State of U.P. (1991) 1 SCC 212 , held that, while acting in the field of contractual rights, the personality of the State does not undergo such a radical change as not to require regulation of its conduct by Article 14, that it was not as if the requirements of Article 14 and contractual obligations were alien concepts which cannot co-exist and that exclusion of Article 14 in contractual matters was not permissible. 22. 22. In Noble Resources Ltd. (supra), the Supreme Court held that if the action of the State is violative of Article 14, a writ petition would be maintainable even in the contractual field, that, while exercising contractual powers also, government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on their part, that while contractual matters are not beyond the realm of judicial review, its application may be limited, that each case must be decided on its own facts, that, having regard to ABL International (2 supra), it could not be held that only because there existed disputed question of fact, or an alternative remedy was available, the same by itself would be sufficient for the High Court to decline its jurisdiction, that in cases where serious disputed questions of fact arose for determination, such disputed questions of fact, ordinarily, could not have been entertained by the High Court in exercise of its power of judicial review, and that, ordinarily, specific performance of a contract would not be enforced by issuing a writ of/or in the nature of mandamus. 23. In M/s. Kasturi Lal• (supra) the question whether a writ would lie for enforcement of the conditions of a anon-statutory contract did not arise for consideration. In Sunil Pannalal Banthia (supra), while a contention was raised that availability of an alternate remedy, Which was less efficacious than a writ petition, did not absolutely bar the filing of a writ petition, the Supreme Court did not express any opinion thereupon. 24. As noted hereinabove, while in one line of judicial pronouncements of the Supreme Court it has been held that a writ petition would not lie for resolution of contractual disputes, the other line of decisions have held that, while interference is permissible, it is on limited grounds and is, in any event, a matter to be decided by the High Court in its discretion. 25. Both Sri V. Venkata Ramana, Learned Counsel for the petitioner and Sri S.R. Ashok, Learned Senior Counsel appearing on behalf of the respondent-Board, would rely on one line of judgments and seek to distinguish the other. Both would, however, agree that these two line of judicial pronouncements are incapable of reconciliation by the High Court. 25. Both Sri V. Venkata Ramana, Learned Counsel for the petitioner and Sri S.R. Ashok, Learned Senior Counsel appearing on behalf of the respondent-Board, would rely on one line of judgments and seek to distinguish the other. Both would, however, agree that these two line of judicial pronouncements are incapable of reconciliation by the High Court. While they would ask us to count the numerical strength of the bench to decide which view to adopt, we refrain from doing so, since both Guruswamy (supra) and Har Shankar (supra) are Constitution Bench judgments. While the submission of Sri S.R. Ashok, Learned Senior Counsel, that Guruswamy (supra) was in the public law realm, as the contract therein was a statutory contract governed by statutory rules cannot be said to be without merit, we must bear in mind that the law laid down therein has been applied even to non-statutory contracts in ABL International (supra). 26. In the light of the two distinct line of judicial pronouncements of the Supreme Court, one holding that a writ petition would not lie, and the other that a writ petition involving contractual disputes could be entertained at the discretion of the High Court, the next question which necessitates examination is whether a Division Bench, in an intra-court appeal, would be justified in interfering with the discretion exercised by the Learned Single Judge to entertain a writ petition seeking enforcement of contractual obligations. 27. It is the internal working of the High court which splits it into different 'benches' and yet the court remains one. A letters patent appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent bench, sitting as a court of correction, corrects its own orders in exercise of the same jurisdiction as was vested in the Single Bench. (Baddula Lakshmaiah v. Sri Anjaneya Swami Temple (1996) 3 SCC 52 ). The judgment under appeal cannot be faulted on the ground that an alternative view which might commend itself to the appellate court is not accepted. At least, such review is not open to an appellate court hearing appeals against orders made under Article 226 of the Constitution which is a discretionary remedy. Interference can only be on an error of principle but not on re-evaluation of evidence; nor on the basis of preferential choice of alternatives. (Royal Laboratories (supra)). 28. At least, such review is not open to an appellate court hearing appeals against orders made under Article 226 of the Constitution which is a discretionary remedy. Interference can only be on an error of principle but not on re-evaluation of evidence; nor on the basis of preferential choice of alternatives. (Royal Laboratories (supra)). 28. While we may well have relegated the petitioner to the forum of the civil court for obtaining the relief sought for in the writ petition, since the Learned Single Judge, following one line of judgments of the Supreme Court, has exercised his discretion to entertain the writ petition, he cannot be held to have committed such a grave error as to necessitate interference in an intracourt appeal. The objection to the present writ petition, involving contractual disputes, being entertained under Article 226 of the Constitution of India must, therefore, fail. 29. The question which then arises for consideration is whether the conclusion of the learned Single Judge, that the impugned notice of termination is illegal, arbitrary and in violation of Article 14 of the Constitution of India, necessitates interference in appeal. 30. Sri Vedula Venkataramana, learned Counsel for the petitioner, would submit that the petitioner was a joint venture in which 51 % share capital was held by I.G.M. India Limited and 49% by the respondent-Board, that the development agreement, entered into between the petitioner and the respondent Board dated 08-02-2006 provided for 35.5 acres of land in Survey No.1 009 of Kukatpally to be handed over to 1:1e petitioner on payment of the development fee of RS.3.85 crores per acre, that the aggregate amount payable by the joint venture to the respondent-Board, in five instalments of 20% each, was RS.140 crores of which the 1st instalment was payable, and was paid, on the date of the agreement dated 08-02-2006, that, as stipulated, a bank guarantee for the remaining 80% of the amount i.e., for Rs., 110 crores was furnished in favour of the respondent-Board and was still in force. According to the learned Counsel, the 2nd instalment of 20% was due and payable only on the respondent-Board issuing a power of attorney to the petitioner, in accordance with the proforma contained in Schedule-I, that possession of the land was delivered to the petitioner on 02-05-2006, that leveling operations were taken up by the petitioner and that they had spent approximately RS.10 crores. 31. 31. Learned Counsel would submit that the respondent-Board had acted arbitrarily in terminating the contract on an erroneous interpretation of its terms, and in complete disregard to the terms of the agreement. According to the learned Counsel, the letter dated 26-10-2005 was at best an invitation to offer based on which the Request for Proposal (R.F.P) was issued inviting offers from others, that acceptance of the petitioner's offer matching the highest bid was accepted and the letter of award dated 31-12-2005 was issued resulting in the agreement dated 08-02-2006 and, in view of the aforesaid subsequent events, the earlier offer in the letter dated 26-10-2005 was of no consequence. Learned Counsel would submit that, while the earlier invitation to offer in the letter dated 26-10-2005 was for 26 acres at RS.2.25 crores per acre, the contract awarded was for an extent of 35 acres at RS.3.82 crores per acre. According to the Learned Counsel, it is only in respect of those violations, enumerated in Clause 7.1 of the agreement, that the respondent-Board was entitled to terminate the agreement and since the 2nd instalment, in terms of schedule IV of the agreement, was required to be paid only on issuance of a power of attorney the petitioner had neither violated nor acted contrary to the terms and conditions of the agreement and that the finding, recorded by the learned Single Judge that termination of agreement was arbitrary, did not necessitate interference in appeal. 32. Learned Counsel would submit that Clause 9 of the R.F.P was only a proposal by the respondent-Board and, since it was not incorporated in the agreement, it must be held that there are no conditions precedent to be performed. Learned Counsel would point out that several clauses, such as Clause 11 in the R.F.P which provided for project closure, were also not included in the agreement, that the final agreement dated 08-02-2007 was a simplified version of the draft R.F.P., that only the terms and conditions of the agreement were required to be examined and that no reliance could be placed either on the earlier letter dated 26-10-2005 or the Request for proposal. Learned Counsel would submit that, since the contract per se did not state that the R.F.P. was a part of the agreement, the contention that it was so did not merit acceptance. 33. Learned Counsel would submit that, since the contract per se did not state that the R.F.P. was a part of the agreement, the contention that it was so did not merit acceptance. 33. Learned Counsel would submit that having held that termination of the contract was arbitrary, and in violation of Article 14 of the Constitution of India, and though the petitioner had not sought for any such relief, the learned Single Judge had erred in granting relief to the respondent-Board, in a writ petition filed by the petitioner, placing reliance on the earlier letter dated 26-10-2005. Learned Counsel would contend that the learned Single Judge had erred in holding that the 30 months period had to be computed from the date of the agreement i.e. 08-02-2006 though Clause 2.3.3 of the agreement specifically provided that the period of completion was 30 months from the date of signing of the power of attorney, and not the date of agreement. 34. On the other hand, Sri S.R.Ashok, Learned Senior Counsel appearing on behalf of the respondent-Board would submit that the letter dated 26-10-2005 must be read along with the Agreement dated 08-02-2006 as the agreement itself so provided, that there were several expressions in the agreement which had not been defined therein and which necessitated the R.F.P. being referred to, that, on a conjoint reading of the letter dated 26-10-2005, the R. F. P and the Agreement dated 08-02-2006, it was evident that the petitioner was required to make payment of the 2nd instalment within three months of the agreement and the very fact that they had not even asked for issuance of a power of attorney was proof that they had no intention to pay, that the petitioner had failed to comply with the conditions precedent such as obtaining sanction from the authorities etc. as stipulated in Clause 9.1 read with Clause 8.1 of the R.F.P, that the prayer in the writ petition was for specific performance, that no such relief could be granted even in a suit in view of Section 14 of the Specific Relief Act, that the only relief which the petitioner could seek was for damages and neither the writ court, nor the civil court, had the power to monitor and that a writ petition, seeking specific performance of the agreement, should not be entertained. 35. 35. Before examining the rival contentions, it is necessary to note certain facts and contractual provisions to the extent they are relevant to the case on hand. 36. The petitioner made their initial offer, vide letter dated 26-10-2005, for development of Acs.26.00 of land for residential purposes and, as consideration, offered to pay RS.2.25 crores per acre for the hill area and RS.2.50 crores per acre for the flat areas of the said parcel of land. They submitted a letter of undertaking dated 26-10-2005 wherein, among other conditions, payment terms were stipulated. While the first instalment of 20% of the total sale consideration was to be paid on the signing of the agreement, the second instalment of 20% was to be paid on issue of power of attorney or 3 months from the agreement date, whichever was earlier. The petitioner's offer was made the basis for inviting bids from others one of whom offered to pay RS.3.50 crores per acre. The petitioner, vide letter dated 19-12-2005, agreed to match the commercial offer given by the top ranking bidder. The respondent Board, vide letter dated 31-12-2005, informed that, subject to the provisions laid out in the R.F.P document for the project and subject to government approval, the petitioner was being designated as the successful bidder for the project. The petitioner was also informed that the procedure and conditions with respect to award of the project, signing of the agreement and payment of commercial consideration to the respondent-Board would be as laid out in the R.F.P document for the project, that 31-12-2005 may be deemed as the date of the letter of Award and that the 18t instalment be paid as early as possible. The letter of the respondent-Board dated 31-12-2005 was accepted by the petitioner in their letter dated 05-01-2006. Thereafter, an agreement dated 08-02-2006 was entered into between the petitioner and the respondent-Board. 37. The letter of the respondent-Board dated 31-12-2005 was accepted by the petitioner in their letter dated 05-01-2006. Thereafter, an agreement dated 08-02-2006 was entered into between the petitioner and the respondent-Board. 37. As noted hereinabove, while the petitioner, in their letter dated 26-10-2005 had offered to pay the second instalment, of 20% of the total consideration, on the power of attorney being issued or 3 months from the agreement date whichever was earlier, in the Request for Proposal (R.F.P), which was furnished to all the bidders along with the offer made by the petitioner, the payment terms were stipulated in a form called the "Commercial Offer Formal', (Exhibit-8 of the Request for Proposal), and, thereunder, while the conditions for payment of the first instalment of 20% of the total consideration was similar to the one in the letter dated 26-10-2005, the second instalment of 20% was required to be paid on issue of the power of attorney. The distinction in the payment terms of the second instalment of 20% is that the words "or 3 months from the Agreement date whichever is earlier" found in the letter dated 26-10-2005 is not reflected either in the Request for proposal or in the Agreement dated 08-02-2006 whereunder the second instalment is payable on the power of attorney being issued. While the Request for proposal, and the Agreement dated 08-02-2006, mention the total project area as Acs.35.50 and the consideration is mentioned in the Agreement as RS.3.82 crores per acre, the earlier letter dated 26-10-2005 relates to a total extent of land of Acs.26.00 for a consideration of RS.2.25 crores/2.50 crores per acre. 38. Clause 1.1.10 of the Agreement dated 08-02-2006 defines 'Development Fee' to mean the consideration payable as per Section 4.2 of the Agreement. Clause 1.1.16 defines 'Power of Attorney' as the power of attorney given to the Development Company for development/construction and sale of the properties developed under the Project and executed in the format given in Schedule 1 Power of Attorney. Clause 1.1.16 defines 'Power of Attorney' as the power of attorney given to the Development Company for development/construction and sale of the properties developed under the Project and executed in the format given in Schedule 1 Power of Attorney. Clause 1.1.17 defines 'Project' as the erection and completion within the said land of the building, erections and structures and all works including planning, designing, financing, constructing, operating maintaining and marketing of the township at the said parcel of land measuring approximately 35.50 acres, to be undertaken by the Developer Company subject to the provisions of the Agreement and as set forth in Schedule 3: Map of the Project. 39. Clause 2 deals with the Obligations of the Developer Company. Clauses 2.1 and 2.3.3. read thus: 2.1 The Developer Company shall design, plan, finance, market, develop necessary infrastructure, provide necessary services, operate and maintain the infrastructure, administer and manage the Project and shall for such purposes, do all such acts, deeds and things as may be required in accordance with the terms and conditions set out in this Agreement. 2.3.3 The Developer Company shall complete construction of the Project within 30 months from the date of signing of the Power of Attorney. 40. Clause 3.1 which relates to the obligations of respondent-Board reads thus: 3.1. Subject to the other provisions of this agreement, APHB shall enter into a Power of Attorney in the format specified in Schedule 1 : Power of Attorney with the Developer Company on the Effective Date and make available the said parcel of land on an "as-is-where-is-basis", for the Developer Company to undertake and execute the Project in accordance with the terms and conditions mutually agreed between the Parties. 41. Clause H of the preamble to the Agreement dated 08-02-2006 takes note of the Request for proposal. While Clause 3.1 of the agreement refers to the "effective date" the said expression is not defined therein. It is only in the Clause 1.1 .15 of Part II of the Request for proposal (R.F.P) that "effective date" is defined to mean the date on which all the conditions precedent are satisfied or waived in writing by both the parties and the power of attorney is executed by APHB in favour of the developer company. The conditions precedent are those specified in Clause 9 of Part II of the Request for proposal. The conditions precedent are those specified in Clause 9 of Part II of the Request for proposal. Clause 9.1 provides that the drop dead date shall be the date occurring upon the expiry of six months from the agreement date or such other date as may be agreed to in writing between the parties. Clause 9.2 provides that the rights and obligations of the parties shall terminate if the following events are not satisfied by the Drop Dead Date:- 9.2.1. The Developer Company having achieved Financial Commitment. 9.2.2. The Developer Company obtaining FIPB and other approvals required for the commencement of the project, as provided under Section 8.1 of the agreement. 9.2.3. The Developer Company providing the bank Guarantee as mentioned in Section 2.9.1. 42. Section 8 relates to approvals and, under Section 8.1 thereof, the developer company shall obtain all approvals from governmental authorities and other persons for purposes of the project including approvals for (i) constructing and developing the Project and (ii) operating and maintaining the Project in accordance with the terms of the Agreement, the basic documents and the applicable law. 43. Clause 4 of the Agreement dated 08-02-2006 relates to commercial consideration and reads thus: 4.1. In consideration of the APHB granting the Power of Attorney, the Developer Company shall pay to APHB the amounts as given below: 4.2. Development Fee 4.2.1. The Developer Company shall pay to APHB the consideration of Rs.3.82 crores per acre in the manner specified in Schedule 4: Payment Schedule for Development Fee of this Agreement 4.2.2. Interest at the rate of 6.5% per annum from the Agreement date would be payable in respect of outstanding instalments as laid out in Schedule 4: Payment Schedule for Development Fee. The table given in Schedule 4 is as under:- Installment Milestone Percentage of Total No. Consideration 1 Signing of the Agreement 20% 2 On issue of Power of Attorney 20% 3 On the first day of the Fourth month from date of issuing the Power of Attorney 20% 4 On the first day of the Eighth month from date of issuing the Power of Attorney 20% 5 On the first day of the Twelfth month from date of issuing the Power of Attorney 20% 44. Clause 7 relates to the events of default. Clause 7 relates to the events of default. Clause 7.1.1 enumerates the events which shall be construed as events of default on the part of Developer Company ("Developer Company Default Event"). Clauses 7.1.2 and 7.1.3 read thus: 7.1.2. Without prejudice to the provisions of Section below, upon the occurrence and continuation of any Developer Company Default Event as stated in Section 7.1.1., APHB may deliver a notice to the Developer Company. Such notice shall specify in reasonable detail the breach, default or failure to which such notice relates. 7.1.3. Where the Developer Company commits a default in respect of the payment of the instalments due towards the Development Fee under this Agreement, APHB shall be entitled immediately upon expiry of 30 (thirty) Business days from the date of receipt of the notice specified in Section 7.1.2 by the Developer Company to make a drawing or request for payment of the defaulted amount under the Bank guarantee issued and maintained pursuant to Section 2.9. In respect of Developer Company Default Event under Sections 8.1.1 (i), 7.1.1 (iii), 7.1.1.(v), 7.1.1.(vi), 7.1.1 (vii), APHB shall be entitled immediately to terminate this Agreement and revoke the Power of Attorney and proceed with the encashing/invoking of the Bank Guarantee for the amount due to APHB" 45. The respondent-Board, vide letter dated 15-12-2006, informed the petitioner that notice was issued under Section 7.1.2 of the Agreement dated 08-02-2006 calling upon him to make payment of the defaulted amount along with interest within a period of 30 days. The petitioner, vide letter dated 1 0-01-2007, submitted his reply thereto informing that there was no default on their part as regards the payment due in respect of the development fee. The respondent Board, in their letter dated 24-01-2007, stated that the petitioner had never asked for the power of attorney and, meanwhile, nearly one year was over and if the power of attorney was not asked for, payment could not be delayed for years together. The petitioner was requested to make payment of the development fee without any further delay. This letter was followed by another letter dated 29-01-2007 wherein the petitioner is alleged to have constructed an electric sub-station intended for Phase-I area also in Phase-II area and another construction ostensibly for fixing LPG tank, without obtaining prior approval of the respondent Board. The petitioner was requested to make payment of the development fee without any further delay. This letter was followed by another letter dated 29-01-2007 wherein the petitioner is alleged to have constructed an electric sub-station intended for Phase-I area also in Phase-II area and another construction ostensibly for fixing LPG tank, without obtaining prior approval of the respondent Board. The petitioner was informed that they were given permissive possession of the land on 02-05-2006 only to carry out preliminary activities like site leveling. The petitioner was requested to suspend all works on the site including construction of the electric sub-station and site leveling till further orders from the respondent-Board and to clear out of the Phase II area with all men and machinery except for security. The petitioner, vide letter dated 29-01-2007, informed that the understanding of the respondent-Board, regarding the due date for payment of 2nd and subsequent instalments of the development fee, was not in terms of the provisions of the Agreement, that the due dates for payment of all subsequent instalments were linked to the date of issue of the power of attorney by the respondent Board, that the Payment Schedule contained in Clause 7 of the undertaking dated 26-10-2005 stood superseded by the Agreement dated 08-02-2006, that issuance of power of attorney to the petitioner was among the obligations under Clause 3.1 of the Agreement, that this obligation had to be fulfilled by the respondent-Board without any further act or thing having to be done by the petitioner and, until and unless this obligation was fulfilled by the respondent Board, no further instalments of the development fee was due and payable under the Agreement. The respondent-Board was requested not to insist on payment of further instalments till they fulfilled their obligation of issuing the power of attorney. In their letter dated 30-01-2007, the petitioner referred to the allegations relating to construction of an electrical sub-station and the LPG tank. While stating that they were ready to honour the orders of the respondent-Board, and stop work of construction and development of the said utilities, they informed that the respondent-Board would remain liable for all the legal consequences that may follow. 46. While stating that they were ready to honour the orders of the respondent-Board, and stop work of construction and development of the said utilities, they informed that the respondent-Board would remain liable for all the legal consequences that may follow. 46. Thereafter, the respondent-Board passed the impugned order of termination date 02-02-2007 wherein the petitioner was informed that the undertaking dated 26-10-2005 was part of a suo motu proposal from the petitioner forming part of the R.F.P document and that was the basis for the swiss challenge bidding process as mentioned in the Agreement dated 08-02-2006, that the suo motu undertaking given by the petitioner, which formed the basis for the Agreement dated 08-02-2006, could not be allowed to be stultified by any other document and that the plea that the 2nd instalment was conditioned by issue of a Power of Attorney in favour of the petitioner was incongruous apart from being inconsistent with the undertaking given by them and hence was unsustainable. Petitioner was informed that the respondent-Board had no other option except to terminate the Agreement in terms of Section 7.1.3, and that they were hereby terminating the contract dated 08-02-2006 entered into with the petitioner, resuming the land given to the petitioner for development and that the petitioner was interdicted from entering into the subject land or undertaking any developmental activity thereon. 47. In the order under appeal, the learned Single Judge held that the notice dated 15-12-2006, issued under Clause 7.1.1 of the agreement dated 08-02-2006, made no reference to the payment schedule as mentioned in the agreement and merely referred to the payment terms of the petitioner in the suo motu proposal along with the undertaking dated 26-10-2005, and that, by issuing a notice merely based on the proposal offered by the petitioner, without referring to schedule IV of the agreement dated 08-02-2006, the respondent-Board had violated Clause 7.1.2 of the agreement dated 08-02-2006 and, from said point of view, the impugned notice was illegal and arbitrary. The learned Single Judge further observed that, having entered into the contract with specific conditions, the respondent-Board had failed to detail the reasons in support of the allegations of default in payment of the second instalment on the part of the petitioner as contemplated under Clause 7.1.2 by taking relevant aspects into consideration in the proposed document in the suo motu undertaking and also the agreement dated 08-02-2006 and thus the said action was arbitrary and in violation of Article 14 of the Constitution of India. 48. As noted hereinabove, the table in Schedule IV of the Agreement dated 08-02-2006 required the second instalment of 20% of the total consideration to be paid on issue of power of attorney. While it is true that the Agreement dated 08-02-2006 is linked, at least in part, to the Request for proposal (RFP) and that the Request for proposal, along with the petitioner's offer in his letter dated 25-10-2006, was furnished to all the bidders who participated in the swiss challenge process, the fact remains that the words "or three months from the agreement date, whichever is earlier' in relation to the payment terms of the second instalment, found in the letter dated 26-10-2005 does not find mention either in the Request for proposal or in the Agreement dated 08-02-2006. While the letter dated 26-10-2005 is for development of Acs. 26.00 of land for a consideration of RS.2.25 crores/ 2.50 crores, both the Request for proposal and the Agreement dated 08-02-2006 relate to development of a larger extent of Acs. 35.50 of land and under the Agreement dated 08-02-2006 the consideration is RS.3.82 crores per acre, which are at variance with the development area of land and the consideration payable for development in the letter dated 26-10-2005. Since both the Request for proposal, and the Agreement dated 08-02-2006 merely require payment of the second instalment on the power of attorney being issued, the earlier undertaking given by the petitioner in their letter dt. 26-10-2005, in circumstances which no longer subsist after the letter of award was issued on 31-12-2005, or the Agreement was entered into on 08-02-2006, cannot be made the basis for terminating the Agreement dated 08-02-2006. In an intracourt appeal, while questions of fact and law may be re-appraised, normally, the Division Bench would not, unless there exist cogent reasons, differ from a finding arrived at by the learned Single Judge. In an intracourt appeal, while questions of fact and law may be re-appraised, normally, the Division Bench would not, unless there exist cogent reasons, differ from a finding arrived at by the learned Single Judge. (B. Venkatamuni v. C.J. Ayodhya Ram Singh (2006) 13 SCC 449; Manjunath Anandappa (supra). In such circumstances, the finding of the Learned Single Judge that the impugned proceedings dated 02-02-2007, whereby the agreement dated 08-02-2006 was terminated, is arbitrary, illegal and in violation of Article 14 of the Constitution of India, is not a conclusion which necessitates interference by a Division Bench in an intracourt appeal. 49. Sri S.R.Ashok, learned Senior Counsel appearing on behalf of the respondent-Board, would submit that, as required under Clause 9.2.2 of the Request for proposal, the petitioner had not obtained the approvals required for commencing, constructing and developing the project within six months from the agreement date and as such, under Clause 9.2, the rights and obligations of the parties under the Agreement dated 08-02-2006 stood terminated. We do not consider it necessary to examine this contention in these appeals, since the writ petition was filed challenging the order of termination dated 02-02-2007 and, thereunder, the only reason given for terminating the Agreement dated 08-02-2006 is failure on the part of the petitioner to pay the second instalment of 20% of the total consideration within three months from the Agreement date. Suffice to observe that, if the respondent-Board is entitled to proceed against the petitioner for other violations, this order shall not preclude them from taking action in accordance with law. 50. Suffice to observe that, if the respondent-Board is entitled to proceed against the petitioner for other violations, this order shall not preclude them from taking action in accordance with law. 50. We see no reason to accept either the submission of Sri V.Venkataramana, learned counsel for the petitioner, that as r the respondent-Board had taken steps to comply with the order of the learned Single ~ Judge in seeking to refund the 1st instalment amount and the Bank guarantee, they could not turn around and now question the very maintainability of the writ petition and that their conduct disentitled discretion being exercised in their favour or that of Sri S.R.Ashok, learned Senior Counsel appearing on behalf of the respondent-Board, that the very fact that the petitioner had issued a suit notice showed that it was their understanding that a suit was the proper remedy and that there was no exceptional circumstances for this Court to come to the petitioners' rescue burdening itself with an adjudication of contractual disputes and converting itself into a civil court. 51. The respondent-Board in their letter dated 20-5-2008, while enclosing the cheque for RS.27.89 Crares and the bank guarantee for Rs.108.48 Crores, informed the petitioner that the cheque and the bank guarantee were being returned in compliance with the order of this Court in W.P. No. 2085 of 2005 dated 1-5-2008 and this was without prejudice to their legal rights to pursue such remedies as were available to them in law. While the respondent-Board may well have been satisfied with the relief granted by the Learned Single Judge and to have decided to comply with the said order, the mere fact that they chose to do so would not bar them from preferring a writ appeal, consequent upon an appeal being filed by the petitioner, or to question the maintainability of the writ petition, more so, when it is evident from the aforementioned letter that compliance with the order was without prejudice to their legal remedies. 52. The notice, issued on behalf of petitioner under Section 68 of the A.P.H.B. Act on 15-03-2007, itself makes a reference to the petitioner having filed W.P. No. 2085 of 2007 before the High Court. It is also mentioned therein that the notice was being issued to the respondent-Board seeking substantial relief and for meeting the statutory requirement of issuing a notice under Section 68 of the A.P.H.B. Act. It is also mentioned therein that the notice was being issued to the respondent-Board seeking substantial relief and for meeting the statutory requirement of issuing a notice under Section 68 of the A.P.H.B. Act. It is true that a party, who invokes the extraordinary jurisdiction of the High Court under Article 226 of the Constitution, cannot be allowed to play 'hide and seek' or to 'pick and choose' the facts he likes to disclose and to suppress (keep back), or not to disclose (conceal) other facts, that suppression or concealment of material facts has no place in equitable and prerogative jurisdictions and, if the applicant does not disclose all material fact fairly and truly, but states them in a distorted manner and misleads the Court, the Court has the inherent power, in order to protect itself and to prevent an abuse of its process, to discharge the rule nisi and refuse to proceed further with the examination of the case on merits [K.D. Sharma (supra)]. As a general rule, suppression of a material fact by a litigant disqualifies him from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be material in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which material for the consideration of the court, whatever views the court may have taken. 53. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. (State of Haryana v. Kamal Distillery AIR 1977 SC 781 ). But the existence of such remedy does no impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed the alternative remedy, while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. If, however, a party has already availed the alternative remedy, while invoking the jurisdiction under Article 226, it would not be appropriate for the court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But even when an alternative remedy has been availed of by a party, but not pursued, that party could prosecute proceedings under Article 226 for the same relief. (S.J.S. Business Enterprises (P) Ltd. (supra). 54. It is evident that the suit notice was issued on behalf of the petitioner, after the writ petition was filed, in order to comply with the statutory requirement under Section 68 of the A.P.H.B. Act. Sri V. Venkataramana, Learned Counsel for the petitioner, would contend, not without justification, that in case this Court had held that the writ petition as filed was not maintainable and that the remedy available to the petitioner was to approach the competent civil court, then, under Section 68 of the A.P.H.B. Act, the petitioner would have to await a period of two months after issuance of notice before filing the suit and in order to avoid any further delay in this regard, and to safeguard the interests of the petitioner in case of an adverse order from this Court, the suit notice was issued. It is also not in dispute that, while a notice under Section 68 of the Act was issued, the petitioner has not even elected to file the suit seeking the relief sought for in this writ petition. They can, therefore, neither be said to be guilty of suppression of fact nor as being disentitled from availing the remedy under Article 226 of the Constitution of India on the doctrine of election. 55. Sri V. Venkataramana, Learned Counsel for the petitioner would submit that the petitioner no longer desired an adjudication of their entitlement to any consequential relief as a result of the termination of the contract being held to be illegal and that it would suffice if that part of the order of the learned Single Judge, whereby relief was granted to the respondent Board, was set aside. On the other hand, Sri S.R.Ashok, Learned Senior Counsel appearing for the respondent-Board, would submit that merely setting aside the order of termination without the consequential relief being granted would, in effect, amount to granting a declaration without a purpose and, since no consequence followed there from, it would be a futile writ, that the natural consequence of the order of termination being set aside, excluding the latter part, would be revival of the agreement, that a mere declaration that the termination was illegal would amount to grant of a decree of specific performance which the appellate Court should not grant since even a writ court would not do so under Article 226 of the Constitution of India and that the appellate court, in an intra-court appeal, could exercise all such powers as could be exercised by the writ Court itself. 56. Having held that the termination of the Agreement dated 8-2-2006 was arbitrary, illegal and in violation of Article 14 of the Constitution of India, the Learned Single Judge traveled beyond the scope of the writ petition in granting a relief which the petitioner had not sought for and which, Sri V. Venkata Ramana, Learned Counsel for the petitioner would contend, is in effect a relief granted in favour of the respondent-Board. The finding recorded by the Learned Single Judge that, since almost the time fixed in the agreement for completion of the contract had come to an end, and that the time fixed for payment of the entire development fee had also expired, the petitioner could not be allowed to execute the contract now, is contrary to the contractual terms. As noted hereinabove, Clause 2.3.3 of the Agreement dated 8-2-2006 specifically provides that the petitioner should complete construction of the project within 30 months from the date of signing of the power of attorney and since, admittedly, the respondent-Board has not issued the power of attorney till date, the period for completing construction of the project has not as yet expired. Similarly, under Clause 4 of the Agreement, read with Schedule IV thereof, the 2nd, 3rd, 4th and 5th instalments are all linked to the date of issuance of the power of attorney and, since the power of attorney has not yet been issued, it cannot also be said that the time fixed for payment of the entire development fee has also expired. The Learned Single Judge ought not to have accepted the respondent-Board's contention that want of financial resources was the cause for not paying the second instalment amount, as this could only have been ascertained if the power of attorney had been issued which would have simultaneously required the petitioner herein to pay the second instalment. The order of the Learned Single, to the extent he held.:- "However, at the same time, the petitioner is also not entitled to have the benefit of contract pursuant to the agreement dated 8-2-2006 so as to proceed further in accordance with the same. Respondent No.1 Housing Board shall refund to the petitioner, the development fee paid by him, without any interest, within a period of two months from today. Further, the bank guarantee furnished by the petitioner towards the entire development fee in terms of the agreement dated 8-2-2006 shall be released in favour of the petitioner. However, it is also made clear that in case the 15t respondent Housing Board decides to proceed with the earlier plan of developing the site inquestion, it may do so by initiating fresh process" is set aside. 57. As the order of the Learned Single Judge to the extent he declared the termination of the Agreement dated 08-02-2006, vide proceedings dated 2-2-2007, as arbitrary, illegal and in violation of Article 14 of Constitution of India is affirmed, the question which necessitates examination is whether such declaration can be issued without any consequential relief being granted. 58. It is well settled that the High Court under Article 226 of the Constitution of India would not issue futile writs. A petition under Article 226 of the Constitution may be dismissed on the ground that issuance of a writ will be ineffective, infructuous, unnecessary or futile. If the Court is satisfied that no useful purpose would be served by issuing a writ, it can dismiss the application on that ground alone. As it is not the practice of Courts to issue meaningless writs the High Court while granting relief, on being satisfied that issuance of a writ would be ineffective, should consider whether grant of a writ would be an exercise in futility. (Suresh v. Vasant AIR 1972 SC 1680 , Balmadies Plantations v. State of Tamil Nadu AIR 1972 SC 2240 ). (Suresh v. Vasant AIR 1972 SC 1680 , Balmadies Plantations v. State of Tamil Nadu AIR 1972 SC 2240 ). It is a well-known rule that whenever a writ of mandamus would be unavailing, or if granted fruitless, it will be refused. (Bal Krishan Aggarwal v. Punjab State AI R 1956 Punjab 201 ; Ajit KumarAddy v. S.M. Maitra AIR 1953 Calcutta 653). It is also well established that a writ of certiorari or mandamus should not be issued when they would be useless. (Debendra Bendhu Lahiri v. State of West Bengal AIR 1952 Calcutta 808). In S.L. Kapoor (supra), while holding that the impugned order was vitiated for failure to observe principles of natural justice, the Supreme Court let the matter rest there and chose not to quash the notification since the term of the committee was to run out in a few days time. 59. In the case on hand, the petitioner has sought a declaration that the order dated 2-2-2007 is arbitrary, illegal and in violation of Article 14 of the Constitution and the Learned Single Judge has declared it to be so. This Court would have been required to examine the question, whether or not any consequential relief should be granted and, if so, what should be the nature of the relief, only if the petitioner continued to seek grant of any consequential relief. Since Sri V. Venkataramana, Learned Counsel for the petitioner, would now state that the petitioner no longer desired grant of any consequential relief by this Court, we consider it wholly unnecessary to examine this aspect any further. In exercise of its writ jurisdiction under Article 226 of the Constitution of India, the High Court quashed several orders without granting any consequential relief. We see no reason, therefore, to deny the declaration sought for merely because the petitioner does not press for a consequential relief. 60. Since the impugned proceedings dated 02-02-2007, terminating the agreement dated 08-02-2006, is for non-payment of the second instalment allegedly due by the petitioner, which proceeding is alone impugned in the writ petition, we see no reason to examine the question as to whether the respondent-Board is entitled to terminate the agreement for the petitioner's violation of other contractual conditions. 60. Since the impugned proceedings dated 02-02-2007, terminating the agreement dated 08-02-2006, is for non-payment of the second instalment allegedly due by the petitioner, which proceeding is alone impugned in the writ petition, we see no reason to examine the question as to whether the respondent-Board is entitled to terminate the agreement for the petitioner's violation of other contractual conditions. It is, however, made clear that this order shall not preclude the respondent-Board from taking action against the petitioners in accordance with law for any breach on their part of the contractual conditions governing the rights and obligations of the parties. 61. We let the matter rest by affirming the order of the Learned Single Judge declaring that the order of termination dated 2-2-2007 is illegal, arbitrary and in violation of Article 14 of Constitution of India. We make it clear that we have not expressed any opinion on the consequences of the declaration, and our order shall not be construed as implicitly granting or denying any relief which may arise as a consequence of this order. 62. W.A. No. 526 of 2008 is allowed in part and WANo.847 of 2008 is dismissed. However, in the circumstances, without costs.