ORDER The present appeal is directed against the order dated 15.04.2013 passed in W.P.(C) No. 2066 of 2012 dismissing the writ petition filed by the appellant and declining to quash the order dated 10.01.2012 imposing penalty upon the appellant for final settlement of transport bills of coal. 2. The respondent-CCL had notified one tender vide tender notice No. CGM (CMC) Kuju Area/2010/27 dated 13.07.2010 for the work of loading and transporting of coal from Pundi OCP stock to Kedla Washery for a period of one year. The petitioner was awarded the said tender and the work order was issued on 03.11.2010 for a distance 25-28 k.m. and the quantity to be transported had been 4,00,000 M.T. and the value of the contract work awarded to the appellant had been Rs.387.04 lakh. Pursuant to the decision of the Tender Committee, Letter of Intent contained in Memo No. 225 dated 07.10.2010 was issued in favour of the appellant and the appellant had entered into an agreement with the respondent on 15.11.2010. The appellant was also awarded another contract from Pundi OCP Stock to NR Siding for a distance of 16.95 k.m. vide N.I.T. No. CGM (CMC) Kuju Area/2010/28 dated 13.07.2010 and the work order was issued on 17.11.2010 for a period from 01.11.2010 to 31.10.2011 and quantity to be transported was 4,00,000 M.T. and the value of award was Rs.255.36 lakh. In terms of both the NIT and award of work, the appellant had to transport coal from Pundi OCP to Kedla Washery and NR Siding through the specified route as mentioned in the contract. 3. The case of the appellant is that due to coal found in the route, the respondent themselves took decision to extract the coal from the open cast mine which falls enroute and disrupted the route. In terms of Clause 6.0 of the terms and conditions of the agreement, contractor’s trucks should ply only on specified route/roads and in case plying of the trucks on any other route/roads becomes necessary due to any reasons, prior approval for the same shall be taken by the contractor from the Project Officer/General Manager and in case of violation of this provision, penalty may be imposed on the contractor and/or the contract terminated. According to the appellant they made representation to the Deputy General Manager/Agent seeking approval for the change of route and according to the appellant, by the change of route, actual difference is more than 1 k.m. Further case of the appellant is that by letter dated 17.02.2011 the appellant consented to the transportation of the coal by the new proposed route from Pundi OCP to Kedla Washery and NR Siding and also consented not to claim any extra rate for the same. However, by letter dated 30.06.2011, the appellant informed CCL that they are not in a position to continue with the transportation work and that the existing route is very higher distance than the tendered route and the local hired tipper owners are not ready to transport the coal in long distance and discontinued the transportation from 25.04.2011 for NR Siding and from 21.06.2011 for Kedla Washery. The impugned order dated 10.01.2012 was passed by the respondent-CCL in respect of transportation of coal from Pundi OCP to Kedla Washery, whereas against the targeted quantity of 4,00,000 M.T. coal, the appellant had transported only 49,410.79 M.T. and a penalty of Rs.30,90,989/- was imposed. In so far as the transportation of coal from Pundi Stock to NR Siding, as against 4,00,000 M.T. coal, the appellant was said to have transported only 69,421 M.T. coal and the appellant was imposed penalty of Rs.17,44,041/-. Being aggrieved by the said order dated 10.01.2012 levying penalty, the appellant had preferred the writ petition. 4. The learned Single Judge held that the actions are in the domain of private law arising out of contractual rights of the parties and the actions of the respondents in invoking such penalty clause upon failure of the appellant to perform its reciprocal promise of transportation of the work under the agreement in question cannot be found fault with and on those findings the learned Single Judge dismissed the writ petition. Being aggrieved by the dismissal of the writ petition, this Letters Patent Appeal has been preferred. 5. Learned counsel for the appellant, Mr. Ajit Kumar submitted that though it is well settled that in case of non-statutory contracts, in case of violation of conditions of the contracts, the writ petition is not maintainable, but in those cases, where the orders suffer from arbitrariness and violation of natural justice, review under Article 226 of the Constitution of India is not precluded. Ajit Kumar submitted that though it is well settled that in case of non-statutory contracts, in case of violation of conditions of the contracts, the writ petition is not maintainable, but in those cases, where the orders suffer from arbitrariness and violation of natural justice, review under Article 226 of the Constitution of India is not precluded. Learned counsel further submitted that as per Clause 6.0 of the general terms and conditions of the contract, the route of transportation of the coal could not have been changed and in case of change of the route of transportation of the coal could only be after obtaining the approval of the authorities of the C.C.L and without granting such approval for change of route, the respondents acted arbitrarily and in violation of principles of natural justice issued the impugned notice levying penalty of Rs. 30,90,989/- (Rs. Thirty lacs ninety thousand nine hundred eighty nine) {in case of contract no. 1) and Rs. 17,44,041/- (Rs. Seventeen lac forty four thousand forty one) {In case of contract no. 2} and, therefore, the writ petition is maintainable. In support of his contention, learned counsel for the appellant relied upon the judgment rendered in the case of ABL International Ltd. & Another Vs. Export Credit Guarantee Corporation of India Ltd. and others reported in (2004) 3 SCC 553 and in the case of Noble Resources Ltd. Vs. State of Orissa and another reported in (2006) 10 SCC 236 . 6. We have heard Mr. Bhaiya Vishwajeet Kumar, learned counsel appearing for the respondent-CCL. Learned counsel for the respondent-CCL submitted that since the dispute pertains to interpretation of terms and conditions, and disputed question of facts arise for consideration, the learned Single Judge has rightly dismissed the writ petition and order of the learned Single Judge does not suffer from any infirmity warranting interference of this Court. 7. We have considered the submissions of learned counsel appearing for the parties. 8. In ABL International Ltd. & Another Vs. Export Credit Guarantee Corporation of India Ltd. and others reported in (2004) 3 SCC 553 , after referring to various judgments, the Hon'ble Supreme Court, in paragraph 27 and 28 of the judgment, enumerated the legal principles as to the maintainability of the writ petition in respect of the contractual obligation, which reads as under:- “27. Export Credit Guarantee Corporation of India Ltd. and others reported in (2004) 3 SCC 553 , after referring to various judgments, the Hon'ble Supreme Court, in paragraph 27 and 28 of the judgment, enumerated the legal principles as to the maintainability of the writ petition in respect of the contractual obligation, which reads as under:- “27. From the above discussion of ours, the following legal principles emerge 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 a 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. 28. However, while entertaining an objection as to the maintainability of the writ petition under 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The court has imposed upon itself certain restrictions in the exercise of this power [See Whirlpool Corpn. V. Registrar of Trade Marks { (1998) 8 SCC 1 } ]. And 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 the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction. 9. Referring the judgment rendered in the case of ABL International (Supra) and other judgments in Noble Resources (Supra), the Hon'ble Supreme Court in paragraphs 22, 23, 26 and 27 held as under: “22. Interplay between writ jurisdiction and contractual disputes has given rise to a plethora of decisions by this Court. 9. Referring the judgment rendered in the case of ABL International (Supra) and other judgments in Noble Resources (Supra), the Hon'ble Supreme Court in paragraphs 22, 23, 26 and 27 held as under: “22. Interplay between writ jurisdiction and contractual disputes has given rise to a plethora of decisions by this Court. See, for example, Dwarkadas Marfatia & Sons v. Board of Trustees, Port of Bombay [ (1989) 3 SCC 293 ] and Mahabir Auto Stores[ (1990) 3 SCC 752 ]. 23. In Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai [ (2004) 3 SCC 214 ] this Court stated:- “16. The position of law is settled that the State and its authorities including instrumentalities of State have to be just, fair and reasonable in all their activities including those in the field of contracts. Even while playing the role of a landlord or a tenant, the State and its authorities remain so and cannot be heard or seen causing displeasure or discomfort to Article 14 of the Constitution of India. 17. It is common knowledge that several rent control legislations exist spread around the country, the emergence whereof was witnesses by the post-World War scarcity of accommodation. Often these legislations exempt from their applicability the properties owned by the Government, semi-government or public bodies, government-owned corporations, trusts and other instrumentalities of State.” 26. In ABL International Ltd. this Court opinion that on a given set of facts, if a State acts in an arbitrary manner even in a matter of contract, a writ petition would be maintainable. It was opinion: “23. It is clear from the above observations of this Court, once the State or an instrumentality of the State is a party to the Contract, it has an obligation in law to act fairly, justly and reasonably which is the requirement of Article 14 of the Constitution of India. Therefore, if by the impugned repudiation of the claim of the appellants the first respondent as an instrumentality of the State has acted in contravention of the abovesaid requirement of Article 14, then we have no hesitation in holding that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent.” 27. Contractual matters are, thus, not beyond the realm of judicial review. Its application may, however, be limited. 10. Contractual matters are, thus, not beyond the realm of judicial review. Its application may, however, be limited. 10. In paragraph 29 of the Noble Resources Ltd. (Supra), the Hon'ble Supreme Court held that though the scope of judicial review are the development of law in this field as being noticed in ABL International Limited and other cases, each case, however, must be decided on its own facts. 11. In the case of State of U.P. and others vs. Bridge & Roof Co. (India) Ltd reported in (1996) 6 SCC 22 the Hon'ble Supreme Court held that the existence of an effective alternative remedy which is provided in the contract itself, is a good ground for the Court to decline to exercise its extra-ordinary jurisdiction under Article 226. This judgment in “Bridge and Roof Company (India) Ltd.” has been approved by the Hon'ble Supreme Court in “ABL International Ltd.” (Supra.) 12. In the light of the above case laws and going by the pleadings and the contentions raised by the appellants in the memorandum of appeal, we are of the view that there are serious disputed questions of fact involved. According to the appellant, the coal which was found in the route, to which the respondent took a decision to extract the coal from the open cast mine, is far from the old one, is causing delay in transportation of the coal. It is further case of the appellant that in terms of clause 6.0 of the terms of the contract, for changing of the route, approval of CCL is required and in spite of repeated request (vide Annexure-6 dated 30.03.2011 and Annexure 7 dated 30.06.2011), the CCL has not granted approval and CCL was responsible for delay in granting approval for change in route. Thus the following disputed questions are involved:- (a). Whether there was a hindrance caused in the route which was originally agreed due to coal found in the route and because of the decision taken by CCL for extracting coal mine from open mine cast which falls in route and whether it has disturbed the route? (b). Whether the CCL is responsible for delay in granting approval for the change in route? (c). Whether CCL was at fault in granting approval for change in route (d). Whether non-granting of approval has hampered the work of the contract. (e). (b). Whether the CCL is responsible for delay in granting approval for the change in route? (c). Whether CCL was at fault in granting approval for change in route (d). Whether non-granting of approval has hampered the work of the contract. (e). Whether CCL was responsible for non-execution of the contract and whether CCL was responsible for causing financial loss to the appellant? 13. All the above mentioned questions are serious disputed questions of fact, arising for consideration between the parties. Such disputed question of fact cannot be dealt with while exercising power under Article 226 of the Constitution of India. By perusal of the terms of contract, it is seen that Clause 12 of the General Terms and Conditions of the Contract deals with settlement of disputes, which reads as under:- 12. Settlement of Disputes It is incumbent upon the contractor to avoid litigation and disputes during the course of execution. However, if such disputes take place between the contractor and the department, effort shall be made first to settle the disputes at the company level. The contractor should make request in writing to the Engineer-in-charge for settlement of such disputes/claims within 30 (thirty) days of arising of the cause of dispute/claim falling which no disputes claims of the contractor shall be entertained by the company. If differences still persist, the settlement of the dispute with Govt. Agencies shall be dealt with as per the Guidelines issued by the Ministry of Finance, Govt. of India in this regard. In case of parties other than Govt. Agencies, the redressal of the dispute may be sought in this Court of Law. 14. Since the General Terms and Condition of the Contract itself contain the mechanism for settlement of dispute between the parties, we are of the view that it is for the appellant to work out the remedy in accordance with the General Terms and Condition of the Contract. 15. 14. Since the General Terms and Condition of the Contract itself contain the mechanism for settlement of dispute between the parties, we are of the view that it is for the appellant to work out the remedy in accordance with the General Terms and Condition of the Contract. 15. By perusal of the impugned judgment of the learned Single Judge, we find that while holding that the writ petition as not maintainable, the learned Single Judge appears to have expressed opinion on the merits of the matter as under:- “In such situation, therefore, it appears that Clause 6 of the said transportation work are not of any help to the petitioner as no prior approval in such cases are required where the respondents themselves have decided to change the route and he himself consented to the same without claiming any extra rate for the same. Having defaulted in the performance of his promise under the terms of the work order and agreement, the respondents have invoked the penal clause which they are justified in doing it.” 16. Whether clause 6 of the special terms and conditions of the contract would be applicable in the case of the appellant or not is a matter, which is to be decided before the appropriate forum and, therefore, the observation made by the learned Single Judge noticed above would not affect the claim of the appellant, in any proceeding, so chosen by the appellant. 17. With the above observations and directions, this Letters Patent Appeal is disposed of. The appellant is at liberty to work out the remedy as per the terms and conditions of the contract, within a period of four weeks from the date of receipt/production of copy of this order. When the appellant so approaches the authorities, the authorities concerned shall consider the same in accordance with law within reasonable time.