Judgment :- 1. The Petitioner has challenged the order dated 7.1.2011, by which, the Managing Director, Tamil Nadu Civil Supplies Corporation, Thambusamy Road, Kilpauk, Chennai- 600 010, the 1st Respondent herein, has appointed the 3rd Respondent as an additional transport contractor for Non-FCI movement for the year 2010-2011, by matching with the L1 rate on collection of security deposit, etc. 2. It is the case of the Petitioner that pursuant to a tender Notification dated 11.4.2010, the Petitioner was declared as the lowest bidder for Dharmapuri region, and was awarded a contract on 9.8.2010 to transport essential commodities of Public Distribution System from Civil Supplies Corporation Godown to Fair Price Shops. The period of contract is for one year from 1.7.2010 to 30.6.2011. According to the Petitioner, he has been discharging his services without any deficiency. While that be so, by impugned order, an additional contractor was appointed. Questioning the same, he has filed the present Writ Petition and while entertaining the same, this Court by order dated 20.1.2011 in M.P. No.2 of 2011, has granted interim stay. To vacate the interim order, the 3rd Respondent has filed M.P. No.3 of 2011. 3. To sustain the interim order, Mr. D. Ashok Kumar, learned Counsel for the Petitioner submitted that when the tender was finalized, the 3rd Respondent who had originally participated had quoted price bid, at the rate higher than the Petitioner. Therefore, the case of the 3rd Respondent was not considered. As the tender had reached finality, Earnest Money paid by him, had also been refunded. It is his further contention that the volume of work given to the Petitioner was not define and that the Petitioner had moved only 15000 metric tones for 6 months at the rate of 2500 metric tones per month and therefore, it was not huge enough necessitating the appointment of an additional contractor for movement of the essential commodities from the godown. In order to support his contention that there was no Complaint of deficiency, learned Counsel for the Petitioner took this Court through the information dated 24.1.2011 furnished by the Senior Regional Manager, Dharmapuri, under the Right to Information Act and submitted that there is absolutely no necessity for the official Respondents 1 and 2, to engage the 3rd Respondent as an additional contractor. 4. 4. It is the further contention for the learned Counsel for the Petitioner that in order to monopolise Dharmapuri region, the 3rd Respondent has influenced the department, and as a result of which, the impugned order has come to be passed, after a lapse of nearly 6 ½ months from the date of issuance of the contract. He also submitted that if at all appointed of an additional contractor is required, the same ought to have been considered only at the time of finalizing the tender and it cannot be done during the subsistence of a contract, under the guise of invoking Condition No.5(c) of the Tender Conditions, by the Tamil Nadu Civil Supplies Corporation Ltd., as the movement of the goods is very meager. According to him, when the 3rd Respondent has failed to succeed in the tender, he cannot subsequently be inducted as an additional contractor, which is nothing but an attempt to scuttle the rights of the Petitioner under the contract. Bias has also been alleged. 5. As regard the objection on the maintainability of the Writ Petition in the light of Condition No.21 of the tender notification for reference to an Arbitrator, learned Counsel for the Petitioner submitted that if there was any deficiency in discharging the contractual obligations under the Tender, or failure to perform any of the terms and conditions of the agreement executed between the parties, instead of appointing an additional contractor, the corporation itself could have referred the matter to an Arbitrator, as per the Condition No.21 of the Tender Notification and resolved the dispute and without doing so, the appointment of an additional contractor is wholly unwarranted. For the abovesaid reasons, he submitted that there was not necessity to appoint an additional contractor and that the same has not been done in good faith and it is only to accommodate the 3rd Respondent, who had failed at the time of finalization of the tender. Learned Counsel for the Petitioner further submitted that so far the 3rd Respondent who has not executed an agreement with the Tamil Nadu Civil Supplies Corporation Ltd., and therefore, he cannot seek for vacation of the interim order. For the abovesaid reasons, he prayed to sustain the interim order of stay, till the disposal of the Writ Petition. 6. Learned Counsel for the Petitioner further submitted that so far the 3rd Respondent who has not executed an agreement with the Tamil Nadu Civil Supplies Corporation Ltd., and therefore, he cannot seek for vacation of the interim order. For the abovesaid reasons, he prayed to sustain the interim order of stay, till the disposal of the Writ Petition. 6. Based on the Counter Affidavit filed by the Managing Director of the Tamil Nadu Civil Supplies Corporation, the 1st Respondent herein Mr. P. Wilson, Learned Additional Advocate General, State of Tamil Nadu, appearing for the 1st Respondent-Corporation, submitted that the transport contractors are appointed for movement of essential commodities of Public Distribution System from corporation godowns to Fair Price shops and other places and every month about 11000 metric tones of rice, wheat, sugar, dhall, etc., are being supplied to family card holders in Dharmapuri District, through five Taluk operational godowns in the District. He also submitted that the Corporation has 36 Fair Price Shops run by different Cooperative Societies, for which, essential commodities have to be moved from the Corporation godowns to various places promptly, as the Corporation has been entrusted with the responsibility of supply of food articles to Fair Price Shops and other places for implementation of Social Welfare Schemes such as, Noon Meal Programme, supply of Free LPG connection with stove, supply of essential commodities to Government Hostels, Hospitals, Sri Lanka Refugees, Police and Fire Service Personnel, etc., for which, tenders were floated for carrying out the movement of essential commodities. He further submitted that the Writ Petitioner was chosen as a transport contractor for Dharmapuri district. 7. Taking this Court through Clause 35 of the agreement executed by the Writ Petitioner, learned Additional Advocate General further submitted that in the event of failure to fulfil the contractual obligations within the stipulated time, it is always open to the corporation to get the work done by other sources to complete the movement of essential commodities, as we as to cancel order or orders in either in full or part. He further submitted that though the contractor was asked to intimate his local address in Dharmapuri, in case of urgency to inform the movement of work then and there, so far, he has not furnished any address and that his representative was also not attentive and often missing at the time of need. He further submitted that though the contractor was asked to intimate his local address in Dharmapuri, in case of urgency to inform the movement of work then and there, so far, he has not furnished any address and that his representative was also not attentive and often missing at the time of need. He further submitted that though by office proceedings dated 12.8.2010 and 13.8.2010, the contractor was ordered to move 500 metric tones of raw rice to Karur District and 2000 metric tones to Pudukottai District respectively, and to move the stock before 18.8.2010, till 2.9.2010, he had not moved the stock despite, two phonograms issued on 14.8.2010 and 17.8.2010. It is also his submission that though the contractor was again reminded by an office proceedings dated 2.9.2010, to quicken the movement and deployed the lorries contractor had neither provided adequate lorries nor deployed the lorries shown by him in the tender form and whereas, instead found fault with the Corporation. Again, by office proceedings dated 7.9.2010, the Petitioner was informed that he was had failed to provide adequate number of lorries for movement of essential commodities from 3.9.2010 to 7.9.2010 and inasmuch as the supply of stock of essential commodities under Public Distribution System was affected, once again, the Corporation has reminded the Petitioner on 8.9.2010 by a telegram that he had not provided any lorry during the past six days and that he was directed to provide atleast 20 lorries daily, to clear the back log in the movement of essential commodities. Accordingly, a notice was also issued on 13.9.2010. In these circumstances, Learned Additional Advocate General submitted that as the work of movement of essential commodities as affected, the Respondents have no other alternative, except to invoke clause 5(c) of the tender conditions to engage an additional contractor to carry out the distribution of essential commodities to Fair Price Shops as well as to other places, such as Government Hostels, Hospitals, Sri Lanka Refugees, Police and Fire Service personnel, etc. 8. Learned Additional Advocate General further submitted that when the Corporation has been entrusted with the responsibility of supply of food articles under the social welfare schemes, it has to be done promptly otherwise, it would cause hardship many. 8. Learned Additional Advocate General further submitted that when the Corporation has been entrusted with the responsibility of supply of food articles under the social welfare schemes, it has to be done promptly otherwise, it would cause hardship many. According to him, the Petitioner has suppressed the issuance of the notices stated supra, in the supporting Affidavit filed along with the Writ Petition and has obtained an interim order. In support of his contention that when there is a provision for arbitration remedy under Article 226 is barred, Learned Additional Advocate General placed reliance on the decisions reported in Barilly Development Authority and another v. Ajai Pal Singh and others, 1989 (2) SCC 116 ; Rukmanibai Gupta v. Collector, Jabalpur and others, 1980 (4) SCC 556 ; and Empire Jute Company Ltd. V. Jute Corporation of India Ltd. & Anr., 2007 (14) SCC 680 , and for the abovesaid reasons, prayed to vacate the interim order. 9. On the basis of the averments made in support of the vacate stay Petition, Mr. A.R.L. Sundaresan, learned Senior Counsel appearing for the 3rd Respondent submitted that the 3rd Respondent is a contractor having many years of service in the field and that he had quoted the 2nd lowest bid amount in the tender. According to him, under Clause 5(c) of the tender Notification, Tamil Nadu Civil Supplies Corporation has every right to split and award contract to more one tenderer depending upon the necessity of work and Clause 5(g) also provided that in case, more than one transport contractor is appointed to a particular region, the transport contractors are expected to carry out the work allotted by the Regional Manager, within the stipulated time. According to him, the question as to whether the appointment of an additional contractor can be made only at the time of finalization of the initial tender or at the later point of time, on account of the necessity of work and whether there was sufficient volume of work in Dharmapuri region enabling the Civil Supplies Corporation to appoint an additional contractor, are matters to be considered only by an Arbitrator, to be appointed under Clause 21 of the tender document and that the same cannot be adjudicated by this Court, in the present Writ Present Writ Petition. He further submitted that appointment of an additional contractor is purely left to the discretion of the Civil Supplies Corporation Ltd., and in this context, he also drew the attention of this Court that in Dharmapuri District, there are four additional contractors. He denied the contention that there was bias or influence in appointing the 3rd Respondent as an additional contractor. On the maintainability of the Writ Petition, he placed reliance on the decisions reported in State of U.P. and others v. Bridge of Roof Co. (India), AIR 1996 SC 3515 ; Semalaiappan, Contractor and others v. The Tamil Nadu Water Supply and Drainage Board and another, 2010 (6) CTC 27 ; 2008 (1) ALD 612 and an unreported decision in W.P. No. 1951 of 2009, dated 23.4.2010. He also drew the attention of this Court to Clauses 5(c) and 21 of the Tender Notification. According to him, when the 3rd Respondent is the second lowest bidder in the tender and when discretion has been exercised by the Respondents in terms of Clauses 5(c)(f)(g) of the Tender Notification, taking into consideration the necessity, the same cannot be said as unwarranted. It is his further contention that appointment of an additional contractor is not restricted only at the stage of opening of the price bid and it also extends to the entire contractual period. As per the tender document, no volume of work can be guaranteed and when the movement of essential commodities has been paralysed or delayed, the discretion exercised by the Respondents to carry out the movement of food articles for implementation of Social Welfare Schemes cannot be said to be mala fide and biased. It is his further contention that the Petitioner under the guise of the interim order seeks to monopolise the region. 10. Learned Senior Counsel further submitted that the delay in movement of food articles has lead to the appointment of the 3rd Respondent as an additional contractor and at that stage, the Petitioner has obtained the interim order from this Court. In order to carry out the movement of stock from the godowns to various places and to facilitate the department from fulfilling its obligations, the interim order requires to be vacated. 11. Heard the learned Counsel for the parties and perused the materials available on record. 12. In order to carry out the movement of stock from the godowns to various places and to facilitate the department from fulfilling its obligations, the interim order requires to be vacated. 11. Heard the learned Counsel for the parties and perused the materials available on record. 12. Before adverting to the facts of this case, it is necessary to extract the tender conditions for the purpose of effective adjudication. Condition Nos.5(c), (f) & (g) of the Tender Notification are extracted hereunder. (c) TNSTC reserves the right to split and award the contract to more than one tenderer depending upon the necessity. (f) No definite volume to work to be performed can be guaranteed during the currency of the contract. (g) In case more than the transport contractor is appointed to a particular region, the Transport contractors are expected to carry out the work allotted by Regional Manager within the stipulated time. The period of contract is for one year from 1.7.2010 to 30.6.2011 and such reasonable extended time upto a maximum of three months if any specified by the corporation or till the finalization of tender for the next year whichever is earlier. As per Clause 17 of the Tender Conditions the stocks of Tamil Nadu Civil Supplies Corporation Ltd. (Other than FCI movement) should normally be delivered on the same day at the corporation Godowns and in any event, it should not exceed 24 hours. The contractor is required to place at the disposal of Tamil Nadu Civil Supplies Corporation and at any one of the place referred to by the Senior Regional Manager/Regional Manager, the required number of lorries which are in good roadworthy condition. The transport of rice, wheat, paddy, gunny, etc., dealt with by the Corporation shall be arranged from the Corporation godowns and other storage points. 13. Clause 21 deals with Arbitration and it is extracted hereunder: In the case of any dispute in the contract including the interpretation of any of the Clauses of the tender or the agreement the matter shall be referred by the Corporation/Contractor to an Arbitrator who shall be selected by the partly from the panel of the Arbitrators approved by the Board of Directors of TNCSC and communicate the same within 15 days from the date of receipt of the letter from the Corporation along with a name of an Arbitrator from the panel. If there is no reply from the contractor within 15 days, Corporation is at liberty to choose any one of the Arbitrators from the panel of Arbitrators referred to above. The remuneration for the Arbitrator as fixed by the Board and other expenses shall be shared equally by TNCSC and the partly to the Arbitration. 14. According to the Civil Supplies Corporation Ltd., the Petition has not provided his local address of the transport contractor and that his representative was also not attentive and often found missing at the time of need. As stated supra, it is the further contention of the Civil Supplies Corporation, Ltd., in spite of repeated reminders that movement of work of essential commodities to Fair Price Shops, as well as to other places such as Government Hostels, Hospitals, Sri Lanka Refugees, Police and Fire Service personnel etc. has to be done promptly, for proper implementation of the Social Welfare Schemes, the transport contractor has failed to deploy lorries and not moved the stocks in spite of phonograms and telegrams. It is the further contention that the transport contractor has neither provided adequate lorries nor deployed the lorries, shown at the time of submission of the tender form and due to the delay in moving the stock from the godown, the transport contractor was also asked to show cause as to why the contract should not be cancelled as per the tender conditions. As rightly contended by the Learned Additional Advocate General, the details of the notice, telegrams, phonograms and other such communications issued to the writ Petitioner have not been placed before this Court and that the fact that he had already been issued with a show cause notice, as to why the contract with him should not be cancelled, has also not been placed before this Court in the supporting Affidavit. Though the Petitioner has contended that there is mala fide and bias on the part of the official Respondents in awarding an additional contract to the 3rd Respondent, there is no bona fide on the part of the Petitioner, as suppression of the details regarding deficiency in service or failure of the contractor to perform his obligations under the tender conditions as well as the terms and conditions of the agreement dated 5.8.2010. As rightly contended by the learned Counsel for the Respondents, the corporation has reserved its right to split and award contract to more than one tenderer, depending upon the necessity and as per Clause 35 of the agreement for other than FCI movement, it is clear that in the event of failure to fulfil the obligations under the contract within the stipulated time, it is always open to the corporation to get the work done by other sources to complete the movement as well as to cancel order or orders, either in full or part. The contention of the learned counsel for the Petitioner that only at the time of finalising the price bid, the 1st Respondent has the authority to decide as to whether the appointment of an additional contractor is required or not, cannot be countenanced in law, in view of the Specific Clauses 5(c)(f)(g) of the Tender Conditions, stated supra. The abovesaid interpretation would go against the very terms of the tender conditions, as well as the terms and conditions of the agreement executed between them. 15. Pleadings and material on record disclose that in order to implement the Social Welfare Schemes effectively, the movement of essential commodities from the Civil Supplies Corporation godowns and supply of the same have to be done promptly and exercise of the discretion by the 1st Respondent, by invoking Clauses 5(c)(f) & (g) of the tender conditions read with Clause 35 of the Agreement, cannot be said to be arbitrary or mala fide. It is also to be noted that mala fide alleged is not specific and not proved and therefore, the same cannot be subscribed, by this Court. 16. On the aspect that the information dated 24.1.2011 furnished under Right to Information Act had disclosed satisfactory performance of the Petitioner in fulfilling the contractual obligations vis-à-vis the details in the Counter Affidavit, alleging failure on the part of the Writ Petitioner in fulfilling the contractual obligations. Courts have consistently held the disputed questions of fact cannot be adjudicated in the Writ Petition. However, the fact remains that for the delay in execution of work, i.e., supply of commodities in time, action has been taken by the Southern Regional Manager, Civil Supplies Corporation and show cause notice has been issued. 17. Courts have consistently held the disputed questions of fact cannot be adjudicated in the Writ Petition. However, the fact remains that for the delay in execution of work, i.e., supply of commodities in time, action has been taken by the Southern Regional Manager, Civil Supplies Corporation and show cause notice has been issued. 17. Reading of the Tender Notification Condition 5(f) also does not guarantee, as prescribed, Volume of work to any contractor to be performed and depending upon the necessity, an additional contractor can always be appointed by the 1st Respondent. The contention that the 3rd Respondent has failed in the initial price bid and therefore he cannot be considered for awarding an additional contract also, cannot be countenanced, for the reason that the 3rd Respondent is admittedly second in line in the order of offering price bid. 18. Perusal of the impugned order also shows that the Senior Assistant Manager, Dharmapuri region, has appointed the 3rd Respondent as a transport contractor for non FCI movement for the year 2010-2011 matching with the L1 rate on collection of security deposit and also executed agreement. Therefore, there is no reduction in the price bid and it matches with L1 rate. The decisions of the Supreme Court stated supra make it abundantly clear that when there is a provision for arbitration, remedy under Article 226 of he Constitution of India, is barred. 19. In view of the discussion and following the judgments of the Supreme Court, this Court is of the considered view that the Petitioner is not entitled for continuation of the interim order. For the reasons stated, balance of convenience is in favour of Tamil Nadu Civil Supplies Corporation. Therefore, the interim stay granted on 20.1.2011 is vacated. 20. In the result M.P. No.2 of 2011 is dismissed M.P.No.3 of 2011 for vacate stay is ordered.