JUDGMENT : 1. This is a writ application wherein the writ petitioner is a Company carrying on the business of managing, operating and running a bar-cum-restaurant attached to Pathik Motel under the West Bengal Tourism Development Corporation Limited (in short ‘WBTDCL’), the defendant no.1 herein. It is the case of the writ petitioner that by an agreement dated September 19, 2013 the petitioner had entered into an agreement with the defendant no.1 to run a bar cum restaurant in the Pathik Motel at Durgapur, West Bengal. 2. Mr. Basu, learned Senior Advocate appearing on behalf of the petitioner has placed the agreement between the parties for management and operation of the bar cum restaurant (hereinafter referred to as “the agreement”). He placed reliance on clause 5 of the agreement to indicate that the agreement was for a period of five years with an option of extension for two terms of three years each. He further submitted that the restaurant was running till the passing of the order passed by the Supreme Court in the case of State of Tamil Nadu represented by Secretary and ors. Vs. K. Balu & ors. (2018) 3 S.C.C. He submitted that by the Supreme Court order a ban of sorts had been imposed wherein bars were not allowed to operate within 500 meters from the outer edge of the National highway. The Supreme Court order had been passed on March 31, 2017 and the impact of the same continued for a period of six months. 3. Mr. Basu further relied on clause 28 being the Force Majeure clause and stated that due to the event of force majeure, the petitioner was unable to make payment of Minimum Annual Guaranteed Return (in short ‘MAGR’) as per clause 7.3 of the agreement as also the Achievement Fee as per clause 7.1(iii). He further submitted that on August 24, 2018 the petitioner had written to the WBTDCL with regard to renewal of the agreement as per clause 5. He submitted that till date no reply to this letter has been received by the writ petitioner. He further submitted by a letter dated 24th September, 2018 the WBTDCL issued a show-cause notice upon the petitioner stating therein that an amount of Rs.3,40,000/- was pending from the petitioner as full and final payment of the MAGR. He submitted that till date no reply to this letter has been received by the writ petitioner. He further submitted by a letter dated 24th September, 2018 the WBTDCL issued a show-cause notice upon the petitioner stating therein that an amount of Rs.3,40,000/- was pending from the petitioner as full and final payment of the MAGR. The show-cause notice further stated that the Achievement Fees as per clause 7.1(iii) was also payable by the writ petitioner. The said show cause notice concluded with the warning that if the pending amounts are not paid within 30 days the contract would be terminated forthwith along with legal actions that may be initiated by the WBTDCL as per law. 4. Mr. Basu further submitted that a reply to the said notice was given by the petitioner on October 5, 2018 stating therein that the balance payment due would be made by the petitioner upon reconciliation of accounts and requested the WBTDCL for renewal of the agreement for a further period of three years as per clause 5 of the agreement. 5. Mr. Basu submitted that surprisingly on October 9, 2018 a notice issued by the WBTDCL was received by the petitioner that stated that as the agreement had expired on September 9, 2018, the petitioner was to vacate the premises and hand over peaceful possession to the concerned authority with immediate effect. It was further stated that in the event of failure to hand over the premises before October 31, 2018, WBTDCL shall take the course of legal action against the petitioner. 6. Mr. Basu indicated to this Court that having issued a show cause notice on September 24, 2018 wherein a one-month grace period had been given to the petitioner i.e. till October 24, 2018, the action of the WBTDCL in directing the writ petitioner to vacate the premises on October 9, 2018 was absolutely arbitrary and against well established principles in law. He submitted that not only were the principles of natural justice not followed but the same had been given a complete go by. 7. Mr. Basu also submitted that the whimsical and capricious action of the WBTDCL needed to be struck down by this Court exercising extraordinary writ jurisdiction. He placed reliance on M/s. Dwarkadas Marfatia & sons Vs. He submitted that not only were the principles of natural justice not followed but the same had been given a complete go by. 7. Mr. Basu also submitted that the whimsical and capricious action of the WBTDCL needed to be struck down by this Court exercising extraordinary writ jurisdiction. He placed reliance on M/s. Dwarkadas Marfatia & sons Vs. Board of Trustees of the Port of Bombay, AIR 1989 S.C. 1642 and specifically paragraphs 15, 17, 21 and 25 of the said judgment to advance the argument that when a public authority is engaged in profit making business and enters into a contract with a private body, the authority cannot act as a private landlord/party and must not act for their own purpose as a private landlord does but must act for public purpose. He further relied on paragraph 25 to submit that where an arbitrariness in State action is seen, Article 14 of the Constitution springs in and judicial review strikes such an action down. 8. In reply, Ms. Sanchari Chakraborty, learned Counsel appearing on behalf of the WBTDCL submitted that the above writ petition is not maintainable as the same is based on a contract of a private nature to manage a bar cum restaurant. She submitted that there being no public duty in the management of a bar, the writ petition is not maintainable. 9. Ms. Chakraborty submitted that apart from the fact that there was no public duty involved in the said agreement, the petitioner had a right of an alternative remedy under the said agreement as per clause 36 of the agreement. She relied on Rajasthan State Industrial Development and Investment Corporation and another Vs. Diamond & Gem Development Corporation Limited and Another, (2013) 5 S.S.C. 470; State of U.P. and others Vs. Bridge & Roof Company (India) Ltd., (1996) 6 S.C.C.22; Bareilly Development Authority and another Vs. Ajai Pal Singh and others, (1989) 2 S.C.C. 116 , to buttress her above arguments. She also relied on the Apex Court judgment in M/s. Radhakrishna Agarwal & ors. Vs. State of Bihar & ors., (1977) 3 S.C.C. 457 and placed paragraphs 12, 17 and 19 to indicate that there are only certain kinds of contractual relationship that the State enters into that can be the subject-matter of the writ. She also relied on the Apex Court judgment in M/s. Radhakrishna Agarwal & ors. Vs. State of Bihar & ors., (1977) 3 S.C.C. 457 and placed paragraphs 12, 17 and 19 to indicate that there are only certain kinds of contractual relationship that the State enters into that can be the subject-matter of the writ. According to her, this particular case falls within the realm of a non-statutory and purely contractual nature, wherein rights and liabilities of the parties are governed by the terms of the contract and the petitioner cannot claim about breach of such contract by the State by way of a writ petition. Her submission is that such breaches can only be complained of by way of suits and other remedies available to the writ petitioner. 10. Per contra, Mr. Basu relied on Modern Steel Industries Vs. State of U.P. & ors., (2001) 10 S.C.C. 491 and Union of India and others Vs. Tantia Construction Private Limited, (2011) 5 S.C.C. 697 , to submit that the alternative remedy of arbitration is not an absolute bar on the writ court. He also relied on paragraphs 9 and 10 of Jayanti Paul Vs. Kolkata Metropolitan Development Authority, 2017 (2) C.H.N. (CAL) 352 to indicate that in case of arbitrariness the nature of the contract is of no relevance and plenary power of the High Court is always available to entertain such a writ petition. 11. At the very threshold I would like to examine the various judgments placed before this Court. In M/s Radhakrishna Agarwal and Others (supra) the Supreme Court examined the types of cases in which breaches of alleged obligation by the State or its agents and divided the same into three types. The Apex Court held that every case of a breach of contract by the state cannot be interfered under Article 226 of the Constitution. The relevant paragraphs are cited below: “12. The Patna High Court had, very rightly, divided the types of cases in which breaches of alleged obligation by the State or its agents can be setup into three types. The relevant paragraphs are cited below: “12. The Patna High Court had, very rightly, divided the types of cases in which breaches of alleged obligation by the State or its agents can be setup into three types. These were stated as follows: “(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Article 299 of the Constitution; (ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed There under and the petitioner alleges a breach on the part of the State; and (iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.” 17. Learned Counsel contends that in the cases before us breaches of public duty are involved. The submission made before us is that, whenever a State or its agents or officers deal with the citizen, either when making a transaction or, after making it, acting in exercise of powers under the terms of a contract between the parties, there is a dealing between the State and the citizen which involves performance of “certain legal and public duties”. If we were to accept this very wide proposition every case of a breach of contract by the State or its agents or its officers would call for interference under Article 226 of the Constitution. We do not consider this to be a sound proposition at all.” 12. Similarly in Bareilly Development Authority and Another (supra) the Apex Court held that no writ or order can be issued under Article 226 of the Constitution where the contract entered into between the State and the persons aggrieved is not statutory and purely contractual. The relevant paragraphs are delineated below: “20. Similarly in Bareilly Development Authority and Another (supra) the Apex Court held that no writ or order can be issued under Article 226 of the Constitution where the contract entered into between the State and the persons aggrieved is not statutory and purely contractual. The relevant paragraphs are delineated below: “20. Thus the factual position in this case clearly and unambiguously reveals that the respondents after voluntarily accepting the conditions imposed by the BDA have entered into the realm of concluded contract pure and simple with the BDA and hence the respondents can only claim the right conferred upon them by the said contract and are bound by the terms of the contract unless some statute steps in and confers some special statutory obligations on the part of the BDA in the contractual field. In the case before us, the contract between the respondents and the BDA does not contain any statutory terms and/or conditions. When the factual position is so, the High Court placing reliance on the decision in Ramana Dayaram Shetty case [ (1979) 3 SCC 489 : AIR 1979 SC 1628 ] has erroneously held: It has not been disputed that the contesting opposite party is included within the term ‘other authority’ mentioned under Article 12 of the Constitution. Therefore, the contesting opposite parties cannot be permitted to act arbitrarily with the principle which meets the test of reason and relevance. Where an authority appears acting unreasonably this Court is not powerless and a writ of mandamus can be issued for performing its duty free from arbitrariness or unreasonableness. 22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is non-statutory and purely contractual and the rights are governed only by the terms of the contract, no writ or order can be issued under Article 226 of the Constitution of India so as to compel the authorities to remedy a breach of contract pure and simple – Radhakrishna Agarwal v. State of Bihar, Premji Bhai Parmar v. Delhi Development Authority and DFO v. Biswanath Tea Company Ltd. 23. In view of the authoritative judicial pronouncements of this Court in the series of cases dealing with the scope of interference of a High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India in cases of non-statutory concluded contracts like the one in hand, we are constrained to hold that the High Court in the present case has gone wrong in its finding that there is arbitrariness and unreasonableness on the part of the appellants herein in increasing the cost of the houses/flats and the rate of monthly instalments and giving directions in the writ petitions as prayed for.” 13. The Apex Court in Rajasthan State Industrial Development and Investment Corporation and Another (supra) held that disputes relating to contract cannot be agitated nor the terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. The Court further held that while dealing with a writ petition, the Court under Article 226 must exercise discretion taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigencies that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. The Court also held that an alternative remedy if available should be exercised by the party before approaching the Writ Court. The relevant paragraphs are delineated below: “19. There can be no dispute to the settled legal proposition that matters/disputes relating to contract cannot be agitated nor terms of the contract can be enforced through writ jurisdiction under Article 226 of the Constitution. Thus, the writ court cannot be a forum to seek any relief based on terms and conditions incorporated in the agreement by the parties. [Vide Bareilly Development Authorityv. Ajai Pal Singh [ (1989) 2 SCC 116 : AIR 1989 SC 1076 ] and State of U.P. v. Bridge & Roof Co. (India) Ltd. [ (1996) 6 SCC 22 : AIR 1996 SC 3515 ] ] 20. In Kerala SEB v. Kurien E. Kalathil [ (2000) 6 SCC 293 : AIR 2000 SC 2573 ] this Court held that a writ cannot lie to resolve a disputed question of fact, particularly to interpret the disputed terms of a contract observing as under: (SCC pp. 298-99, paras 10-11) “10. In Kerala SEB v. Kurien E. Kalathil [ (2000) 6 SCC 293 : AIR 2000 SC 2573 ] this Court held that a writ cannot lie to resolve a disputed question of fact, particularly to interpret the disputed terms of a contract observing as under: (SCC pp. 298-99, paras 10-11) “10. … The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. … If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. …. 11. … The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. … The contractor should have relegated to other remedies.” 21. It is evident from the above that generally the Court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justitiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal. 39. The cancellation of allotment was made by appellant RIICO in exercise of its power under Rule 24 of the 1979 Rules read with the terms of the lease agreement. 39. The cancellation of allotment was made by appellant RIICO in exercise of its power under Rule 24 of the 1979 Rules read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24(aa) and, in the alternative, the respondent Company could have preferred an appeal under Rule 24(bb)(ii) before the Infrastructure Development Committee of the Board. The respondent Company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then decided the case. However, the respondent Company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law.” 14. In M/s. Dwarkadas Marfatia and Sons (supra) the Supreme Court held that where there is arbitrariness in State action Article 14 springs in and judicial review strikes such an action down. The Supreme Court further held that a public authority in respect of its dealings with its tenant must act in public interest and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction. The relevant paragraphs are cited below: “15. This Court in Baburao Shantaram More v. Bombay Housing Board, 1954 SCR 572 : ( AIR 1954 SC 153 ) had to consider Section 4 of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947, and so far as material for our present purposes explained the basis of exemption under Section 4 as that the Govt. or local authority or the Board would not be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are or are likely to be. In other words, this Court recognised that the basis of differentiation in favour of the public authorities like the respondent, was on the ground that they would not act for their own purpose as private landlords do, but must act for public purpose. 17. In other words, this Court recognised that the basis of differentiation in favour of the public authorities like the respondent, was on the ground that they would not act for their own purpose as private landlords do, but must act for public purpose. 17. It, therefore, follows that the public authorities which enjoy this benefit without being hidebound by the requirements of the Rent Act must act for public benefit. Hence, to the extent, this is liable to be gone into and can be the subject mater of adjudication. 21. We are unable to accept the submissions. Being a public body even in respect of its dealing with its tenant, it must act in public interest, and an infraction of that duty is amenable to examination either in civil suit or in writ jurisdiction. 25. Therefore, Mr. Chinai was right in contending that every action/activity of the Bombay Port Trust which constituted “State” within Art. 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Art. 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. Reliance may be placed on the observations of this Court in E. P. Royappa v. State of Tamil Nadu, (1974) 2 SCR 348 : ( AIR 1974 SC 555 ), Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : ( AIR 1978 SC 597 ), R. D. Shetty v. International Airport Authority of India, (1979) 3 SCR 1014 : ( AIR 1979 SC 1628 ), Kasturi Lal Lakshmi Reddy v. State of J&K., (1980) 3 SCR 1338 : ( AIR 1980 SC 1992 ) and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 2 SCR 79 : ( AIR 1981 SC 487 ). Where there is arbitrariness in State action, Art. 14 springs in and judicial review strikes such an action down. Every action of the Executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Art. 14. The observations in paras 101 & 102 of the Escorts’ case 9supra) read properly do not detract from the aforesaid principles.” 15. Every action of the Executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Art. 14. The observations in paras 101 & 102 of the Escorts’ case 9supra) read properly do not detract from the aforesaid principles.” 15. In Tantia Construction Private Limited (supra) the Supreme Court held that an alternative remedy in the form of an arbitration clause is not an absolute bar to the invocation of the writ jurisdiction of the High Court. The relevant paragraph is delineated below: “33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution.” 16. The Division Bench of the Calcutta High Court in Jayanti Paul (supra) has categorically held after examination of a catena of judgments that in cases of arbitrariness by a State authority or its instrumentality arising out of an contractual obligation is maintainable even if the arbitrariness emanates from a right under the contract. The relevant paragraphs are cited below: “9. The judgment referred to as relied upon by the learned Single Judge [i.e., Haldiram’s case (supra)] cannot be an authority for the proposition that even in an appropriate case, a writ petition as against a State or its instrumentality arising out of a contractual obligation is not maintainable even if there is arbitrariness present in such an action which emanates from a right under the contract. In fact, the legal principle is otherwise, as has been held and is well settled by several pronouncements of the Supreme Court referred to hereinbefore and also in ABL International Ltd. & Anr. In fact, the legal principle is otherwise, as has been held and is well settled by several pronouncements of the Supreme Court referred to hereinbefore and also in ABL International Ltd. & Anr. vs. Export Credit Guarantee Corporation of India Ltd. & Ors. reported in (2004) 3 SCC 553 (see paragraph 27). In paragraph 28, the Supreme Court has further observed as follows:- “28. However, while entertaining an objection as to the maintainability of a writ petition under Article 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. Vs. 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 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.” 10. Based on a board conspectus of the judgments of the Supreme Court referred hereinbefore, we can safely conclude that Haldiram’s case (supra) is not good law for the proposition that in an appropriate case, a writ petition as against a State or its instrumentality arising out of a contractual obligation is not maintainable even if there is arbitrariness present in such an action which emanates from a right under the contract. Referring to and relying primarily upon Haldiram (supra) by the learned Single Judge in the impugned judgment and order, therefore, was not proper in the facts and circumstances of the instant case.” 17. Referring to and relying primarily upon Haldiram (supra) by the learned Single Judge in the impugned judgment and order, therefore, was not proper in the facts and circumstances of the instant case.” 17. Upon examination of the judgments cited by both Counsel appearing for the parties, I am of the view that there is no absolute bar in entertaining the writ petition when the writ petitioner can show a clear case of arbitrariness having been committed by the State authority. It is also clear that an alternative remedy in the nature of an arbitration clause does not take away the discretionary power of the Writ Court to entertain a writ petition. The real test is whether the State authority has acted dehors the Constitutional mandate enshrined in Article 14 of the Constitution of India. Arbitrariness by a State authority is not just impermissible but also strikes at the very root of the guarantees provided under the Constitution. It is for this reason that the extra ordinary power has been given under Article 226 of the Constitution to the High Courts to annul and rescind any such arbitrary action that is based on extraneous considerations. The High Court is duty bound to act in such circumstances. 18. In the present case, having issued a letter/show- cause notice dated September 24, 2018 allowing the petitioner to mitigate the default within a period of thirty days, the State authorities seem to have acted in haste in seeking to take possession of the property on 9th October, 2018. The subsequent action on 9th October, 2018 was in contravention of its own letter/show-cause notice issued on September 24, 2019. Even though, I am of the view that this contract for management of the bar cum restaurant is a purely contractual matter and therefore, normally a writ petition would not be maintainable, the facts of the case with regard to arbitrary action of the State demands that the writ court step in. Arbitrariness is anathema to Article 14 and the Court has a duty to step in when a state authority acts in such a manner. The authority cannot be allowed to play hot and cold with the petitioner without any reasonable reason for the same. The letter dated October 9, 2018 is clearly and palpably an action taken by the authority in contravention of its own position taken on September 24, 2018. 19. The authority cannot be allowed to play hot and cold with the petitioner without any reasonable reason for the same. The letter dated October 9, 2018 is clearly and palpably an action taken by the authority in contravention of its own position taken on September 24, 2018. 19. Accordingly, I quash the letter dated October 9, 2018. 20. Needless to say, both parties are at liberty to act in accordance with law and approach the appropriate forum to resolve any dispute that may exist between them. 21. As a consequence of the writ petition being allowed, all applications being C.A.N. 3534 of 2019, C.A.N. 4066 of 2019, C.A.N. 961 of 2019, C.A.N. 4508 of 2019 that are pending in this writ petition become in-fructuous, and accordingly, stand disposed of. 22. I would like to put on record the excellent assistance provided by counsel appearing in this matter. Mr. Basu was of course his usual self dexterously highlighting the case of his client. But this Court was extremely pleased with the adroit skills displayed by Ms. Sanchari Chakraborty in defending her client. 23. Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.