JUDGMENT : HON’BLE MR JUSTICE ARUN DEV CHOUDHURY Heard Mr. KN Choudhury, learned Senior counsel assisted by Mr. BJ Ghosh, learned counsel for the petitioner. Also heard Mr. BK Singh, learned standing counsel for the FCI. 2. The brief fact of the case: The respondent FCI invited e-tender on 01.11.2017 for the construction of Cement Concrete Road proposed to be around 4 numbers of existing Food Storage Godowns at FSD, Ramnagar, Silchar, Cachar with an estimated cost of Rs. 2,26,10,750/-, which is to be completed within a period of 90 days. The petitioner, a Class-1 contractor participated in the NIT. The petitioner submitted his quoted bid value of Rs. 2,38,12,642/-, which was accepted by the respondent FCI through their letter dated 27.02.2018. Thereafter, the respondent FCI requested the petitioner to arrange for Design Mix M-30 from any renowned Government Engineering College and the same was done by the petitioner. Thereafter, NIT, Silchar evaluated the M-30 design mix and submitted the report to FCI on 27.04.2018 but no approval was given to the petitioner and asked the petitioner for fresh M-30 Design mix from NIT Silchar and accordingly the petitioner submitted the sample material for evaluation to NIT Silchar. Again, the respondent FCI vide letter dated 14.12.2018 asked the petitioner for fresh evaluation of the M-30 Design Mix from NIT Silchar in presence of Junior Engineer. The respondent FCI again vide letter dated 28.01.2019 asked for a fresh evaluation report of the M-30 Design Mix from IIT, Guwahati which was received on 20.03.2020. According to the the petitioner, he had made several communications with FCI for delay in starting of the remaining work due to the non approval of the M-30 Design Mix, but the respondent FCI vide letter dated 04.03.2020 issued show cause notice on the petitioner which was replied by the petitioner through his letter dated 13.05.2020, denying the allegations made in the show cause notice and the petitioner expressed his desire to complete the work in the event the respondent FCI agrees to enhance 30 % from the quoted rate to restart the remaining works due to the increase of price of materials in last 24 months, which is beyond the date of completion. Thereafter, the petitioner filed WP(C) 3907/2020, however, such writ petition was withdrawn by the petitioner with a liberty to file a fresh petition in order to assail the termination order dated 08.06.2020 and the petitioner filed fresh writ petition being WP(C)4856/2020 challenging the impugned final notice dated 08.06.2020, which was also withdrawn as the respondent FCI issued impugned tender notice dated 20.11.2020 with a liberty to file fresh petition challenging the final notice dated 08.06.2020.Accordingly, the petitioner filed this writ petition. 3. The facts pleaded by the petitioner: I. On 01.11.2017, Executive Director on behalf of Food Corporation of India invited e-tender for construction of Cement Concrete Road proposed to be executed around 4 numbers of existing Food Storage Godowns at FSD, Ramnagar. Respondent authority accepted the offer of the petitioner vide letter dated 23.02.2018. II. On 14.03.2018, the petitioner was requested to execute formal agreement and take possession of the work site and to start the work and also asked to arrange for Design Mix M-30 from any renowned Government Engineering College and on 19.03.2018, a contract agreement was executed between the petitioner and the respondent authority. III. Thereafter, the petitioner submitted petition on 28.04.2018 informing the authority that work site clearly not handed over and it has affected the WBM and concrete work held up for quite long time and the work was delayed. IV. On 18.05.2018, the petitioner again informed the respondent authority that the work could not be proceeded further due to heavy rain and vehicle are running in the construction area. V. Thereafter, the respondent authority received the report of Mix Design M-30 from NIT Silchar but could not be finalized. And thereafter, on 22.06.2018, the petitioner requested the respondent authority to hand over the site for PCC work by making vehicle free zone as WBM work completed because only scope of work only is PCC work since the M-30 design is not finalized. VI. The petitioner was directed to send requisite materials for fresh evaluation of design mix from NIT Silchar on 25.07.2018. and samples were sent on 27.07.2018.XIV. A letter was submitted on 30.08.2018 before the respondent FCI for approval of Design Mix M-30 otherwise work will not progress. VII. On 08.10.2018, he Asst. General Manager, CE directed the petitioner to complete the drains and culverts till finalization of Design Mix M-30. VIII. and samples were sent on 27.07.2018.XIV. A letter was submitted on 30.08.2018 before the respondent FCI for approval of Design Mix M-30 otherwise work will not progress. VII. On 08.10.2018, he Asst. General Manager, CE directed the petitioner to complete the drains and culverts till finalization of Design Mix M-30. VIII. On 06.11.2018, Assistant General Manager, CE extended the time for completion of work up to 31.12.2018 without informing the petitioner. IX. On 14.12.2018, the Assistant General Manager, CE again issued another letter directing the petitioner to arrange Design Mix M-30. And thereafter, on 24.12.2018, the without any information to the petitioner extended the time up to 30.01.2019. X. On 28.01.2018, the Assistant General Manager, CE requested the petitioner to supply samples of the materials to be sent to IIT Guwahati for testing of Design Mix M-30. XI. Thereafter, the Assistant General Manager, CE without any information to the petitioner extended the time up to 28.02.2019 on 28.01.2019 and further went on extending the validity period of the agreement till 30.03.2019 without any consent from the petitioner. XII. On 09.05.2019, the petitioner submitted letter to disassociate himself from the agreement as the authority was not approving the design of M-30 grade mix concrete and also requested to allow him to lift his T&P machines etc. from the site. XIII. However, on 23.05.2019, the respondent Assistant General Manager, CE issues a show cause to which, the petitioner submitted a reply on 29.05.2019 denying each and every allegation made and requested for return of PG with interest at prevailing rate. XIV. The petitioner submitted final bills on 04.07.2019 and requested for payment. And on 10.08.2019 The petitioner submitted notice under Clause 25 of the agreement for settlement of disputes along with list of claims. XV. On 25.09.2019, the Assistant General Manager, CE refuted the claims of 30% enhancement of quoted price as requested by the petitioner on untenable and whimsical grounds and also discarded the claims made under Clause-25. XVI. Thereafter, on 04.03.2020, show cause notice was issued to the petitioner and on 13.05.2020, the petitioner replied to the show cause notice denying each and every allegation. A final notice was issued on 08.06.2020 to which, the petitioner replied on 13.06.2020, interalia taking a stand that the contract agreement has already expired long before and does not exist anymore as of now. 4. Learned Senior counsel Mr. A final notice was issued on 08.06.2020 to which, the petitioner replied on 13.06.2020, interalia taking a stand that the contract agreement has already expired long before and does not exist anymore as of now. 4. Learned Senior counsel Mr. K N Choudhury appearing for the petitioner submits as follows: I. From the facts and record available there is no dispute on the fact that the execution of the project has been delayed for non-approval of the Design mix at the end of the respondent employer and not for any fault on the part of the petitioner inasmuch as in view of such fault on the respondent employer, the petitioner is entitled for escalation in prices as price of materials has already increased. Further, delay is also admittedly attributable for non-handing over of the site. Therefore, the authority could not have issued the fresh tender and it ought to have allowed the petitioner to complete the work by allowing price escalation. II. The termination itself is having no meaning inasmuch as prior to such termination not only the contract period was over but also the petitioner had withdrawn from the contract itself and took recourse to the provision of Clause 25 of the contract itself for redressal of the dispute. However same has also been rejected by a cryptic order. Therefore, the employer is not competent under the terms of the contract to issue the impugned order and advertisement and the petitioner is entitled to complete the work with escalated price. III. The impugned order of debarring the petitioner in participating in future tender process relating to the work contract is without any reason. The action of the State and its instrumentality must be supported by a reason and when such order is not supported by any reason, the action hits at the root of Article 14 of the Constitution of India and therefore, the impugned order is liable to be set aside and quashed. IV. When an instrumentality of the State is a party to a contract, it has an obligation to act fairly, justly and reasonably which is requirement of Article 14 of the Constitution of India. IV. When an instrumentality of the State is a party to a contract, it has an obligation to act fairly, justly and reasonably which is requirement of Article 14 of the Constitution of India. In the present case, the basic prayer is for quashing the order whereby, the petitioner is barred from participation in future tender process relating to the work in question inasmuch as the petitioner had himself withdrawn from the contract for the reason of delay caused in executing the contract for the fault of the employer and denial of escalation in price. V. The action of the respondents in the face of it is arbitrary and unreasonable resulting in violation of the petitioner’s right under Article 14 of the Constitution of India. In support of such contention Mr. Choudhury relies on a judgment of the Hon’ble Apex Court in A.B.L International Limited –Vs-Export Credit Guarantee Corporation of India Limited reported in 2004 3 SCC 553 and the judgment of the Hon’ble Apex Court in Kumari Shrilekha Vidyarthi, -Vs- State of UP reported in 1991 1 SCC 212 . 5. The pleaded case of the respondent FCI can be summarized as follows: I. Petitioner’s tender was accepted by the FCI at the estimated cost of Rs. 2,26,10,750/-. And On 14.03.2018, the petitioner was asked to take possession of site and start work. II. The petitioner submitted report on 27.04.2018 of Mix Design (M30) wherein Cement consumption per cubic meter was 450 kg. III. As the first report of design mix M-30 was not in conformity with the specifications laid down in the contract, therefore, the petitioner on 25.07.2018 was asked to arrange fresh design mix M-30 from any renowned Government Engineering College. IV. As the design Mix of M-30, which was carried from NIT Silchar two times but still the cement consumption was on a higher side as compared with DSR 2016 items, as such FCI requested the petitioner to provide samples to the FCI, RO so that FCI can submit to IIT, Guwahati for testing of M-30 design mix. V. On 23.02.2019, FCI, Silchar requested petitioner again to arrange M-30 design mix from IIT-Guwahati along with detail properties of all constituent materials. However, the petitioner on 09.05.2019 proclaimed disassociated from the said agreement and claimed for damages and losses. VI. V. On 23.02.2019, FCI, Silchar requested petitioner again to arrange M-30 design mix from IIT-Guwahati along with detail properties of all constituent materials. However, the petitioner on 09.05.2019 proclaimed disassociated from the said agreement and claimed for damages and losses. VI. The FCI claims that contract is still alive and requested the petitioner to collect samples for RMC plant for M-30 test. Since the petitioner was not taking out any effort to arrange design Mix from IIT, Guwahati, the FCI vide its letter dated 01.07.2019 requested IIT, Guwahati to arrange the Mix design. VII. In the meantime, on 19.08.2019, the petitioner invoked Clause 25 and filed list of claims including damages. Thereafter, on 25.09.2019, FCI asked the petitioner to pursue the IIT-Guwahati to get M-30 design. VIII. After getting the report from IIT, on 27.01.2020, FCI sent M-30 design to the petitioner and asked to restart work. Again on 06.02.2020, FCI requested the petitioner to restart the work. On 04.03.2020, FCI issued show cause notice because of delay and suspension of work by the petitioner. And in the meantime, on 20.03.2020, FCI submitted full-fledged report of M-30 issued by IIT, Guwahati. IX. The petitioner replied to the show cause and agreed to work at enhanced rate by 30%. As the 30% enhancement is against the provision of agreement and therefore, action as per agreement was necessary to be taken against the petitioner. And accordingly issued order impugned in the present writ petition. 6. The learned counsel for the respondent FCI submits as follows: Mr. BK Singh, learned standing counsel for the respondent FCI submits the following: I. Clause 10(A) of the tender agreement says that it is the sole responsibility of the petitioner to supply the materials for testing at his own cost. II. Clause 5 of the tender agreement says about the time and extension for delay. The respondent FCI refutes that the time of completion of work was extended solely because of negligence on the part of the respondent in taking the decision to approve Mix Design M 30. III. The present is a contractual dispute and therefore, the writ Court may not like to interfere with such contractual decision. IV. The respondent FCI refutes that the time of completion of work was extended solely because of negligence on the part of the respondent in taking the decision to approve Mix Design M 30. III. The present is a contractual dispute and therefore, the writ Court may not like to interfere with such contractual decision. IV. The deficiency in performance of the contract as well as abandoning the contract site and the legality of the reasons thereof cannot be a subject matter of a writ petition inasmuch as for such determination evidences are required. Due to inability of the petitioner to perform the contract, the FCI was compelled to terminate the contract by the impugned order and had decided not to allow such a contractor to participate in the tender. V. It is well settled that dispute relating to the contract cannot be agitated under Article 226 of the Constitution of India. Mr. Singh, learned counsel relies on paragraph 6 of a judgment of the Hon’ble Apex Court in National Highway Authority of India.–Vs-Ganga Enterprises reported in AIR 2003 SC 3823 . 7. Reason and determination: This Court has given anxious consideration to the submissions made by the learned counsel for the parties, gone through the materials available on record. The basic issue for determination is whether this Court should entertain the present writ petition interfering with the order of termination of the contract and also the consequential orders and the same are discussed in the following manner. A. The termination of the contract: I. The Hon’ble Apex Court while dealing with a difference between statutory contracts and private contract between private individual and instrumentally of the State, held in Pimpry Chinwad Municipal Corporation Vs.Gayatri Construction Company reported in (2008) 8 SCC 172 that if a term of contract is violated, ordinary remedy is not the writ petition under Article 226 of the Constitution of India. It was also held that a contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. It was further held that the dispute relating to interpretation of the term and conditions of such contract cannot be agitated in a petition under Article 226 of the Constitution of India, rather it is a matter for adjudication by a Civil Court or in arbitration, if provided for in the contract. It was further held that the dispute relating to interpretation of the term and conditions of such contract cannot be agitated in a petition under Article 226 of the Constitution of India, rather it is a matter for adjudication by a Civil Court or in arbitration, if provided for in the contract. It was also held that a contract between the parties is a contract in the realm of private Law. II. The Hon’ble Apex Court also in catena of decision considered the scope of exercise of power by High Court under Article 226 of the Constitution of India in relation to contractual obligation of the State or its instrumentalities with the citizens in the backdrop of violation of right of citizens under Article 14 of the Constitution of India. The Hon’ble Apex Court in the case of Ramana Dayaram Shetty –VS-the International Airport Authority of India reported in AIR 1979 SC 1628 held that modern welfare state which is committed to egalitarian values and dedicated to the rule of law has to act while awarding contract, under the Constitutional mandate of Article 14 of the Constitution of India and the Government cannot act arbitrarily in its sweet will like private individual and the action of the State must be in conformity with standard or norm which is not arbitrary, irrational and irrelevant. The Hon’ble Apex Court in the case of Kasturi Lal Lakshmi Reddy–VS-State of Jammu and Kashmir reported in AIR 1980 SC 1992 held that whatever the activity, a Government is still a Government and is subject to restrain inherent in its position in a democratic society and the power of Government cannot be exercised arbitrarily or in an unprincipled manner. In the case of A.B.L International Limited –Vs- Export Credit Guarantee Corporation of India Limited reported in (2004) 3 SCC 553 , the hon’ble Apex Court held that a writ petition involving serious disputed question of fact which requires consideration of evidence will not normally be entertained by a court in exercise of its writ jurisdiction, but there is no absolute rule that in all cases involving disputed question of fact the parties should be relegated to a civil suit. It was further held that on a given set of facts if the State acts in an arbitrary manner even in a matter of contract an aggrieved party can approach the court by way of writ petition and the writ court, depending on facts of the said case is empowered to grant relief. III. Thus law is by now well settled that High Court has a discretion to entertain or not entertain a writ petition involving contractual disputes, wherein state or its instrumentality is a party and such discretionary power shall not be exercised in exclusion of alternative remedies until and unless the action of the State is arbitrary, unreasonable resulting in violation of the right of a citizen under Article 14 of the Constitution of India. IV. It is also a settled proposition of law that in a case of dispute arising out of a statutory contract, a judicial review under Article 226 of the Constitution of India is permissible. When an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably in its contractual, constitutional or statutory obligation it really acts contrary to the Constitutional guarantee under Article 14 of the Constitution. V. Thus when the dispute arises out of performance or non performance of contractual liabilities as per the term of the contract and if the allegation and counter allegations are made regarding violation of terms of the contract, a writ Court generally shall not enter into the arena of such dispute and rather the parties should be relegated to the remedy of a civil Court or to any other remedy that the parties has agreed between them for determination of such disputes, including arbitration. It is also well settled that when the action challenged involves exercise of administrative power/executive power, arising out of a contract, a judicial review under Article 226 of the Constitution of India shall be permissible inasmuch as exercise of such administrative power/executive power is not controlled by the term of the contract. VI. From catena of decision, it can safely be concluded that a writ Court should not exercise its extra ordinary power in the case of pure contractual matters/disputes and it can exercise its power when the petitioner can satisfy the writ court that the remedy is not a private law remedy but a public law remedy. VII. VI. From catena of decision, it can safely be concluded that a writ Court should not exercise its extra ordinary power in the case of pure contractual matters/disputes and it can exercise its power when the petitioner can satisfy the writ court that the remedy is not a private law remedy but a public law remedy. VII. Since, the present contract in question is a contract between the respondent FCI and the petitioner for execution of a work contract and governed by the terms of the contractual obligations, the considered opinion of this Court is that such contractual obligation is a matter of private law remedy. The correctness of satisfaction of the respondent FCI cannot be tested by this court in exercise of its power of judicial review inasmuch as the reason for such termination is stated to be violation of the terms of the contract. Therefore, this Court is not inclined to interfere with the impugned decisions to terminate the contract. B. The Advertisement: I. From different pronouncements of Hon’ble Apex Court Tata Cellular Vs Union of India- 1994 6 SCC 651 , Afcons Infrastructure Ltd. Vs Nagpur Metro Rail Corpn. Ltd. - (2016) 16 SCC 818 , Silppi Constructions Contractors vs. Union of India and Another - (2020) 16 SCC 489 ) this court can take judicial notice that there has been a rise in scrutiny of tender in writ proceedings under Article 226 of the Constitution of India and almost all tenders are sought to be challenged by way of the writ petition in a matter of routine. In the aforesaid backdrop, Hon’ble Apex court has repeatedly held that in certain aspects relating to tender judicial review is equivalent to judicial restraint. The Hon’ble Apex court has viewed that such review should relate not to the decision itself but to the decision making process. It is well settled that the writ court does not have the expertise to correct such a decision by substituting its own decision for the decision of the authority. II. From the aforesaid pronouncements of the Hon’ble Apex court, it can safely be concluded that the Apex Court has consistently viewed that judicial review of a decision of public authorities, so far it relates to the award of the contract, should be limited. II. From the aforesaid pronouncements of the Hon’ble Apex court, it can safely be concluded that the Apex Court has consistently viewed that judicial review of a decision of public authorities, so far it relates to the award of the contract, should be limited. It is equally well settled that as the process of tender involves public authorities, the court does have the authority to intervene in terms of how a decision, action or process was arrived at. Therefore, to intervene in such a situation, while making a judicial review of the action, the court must satisfy that the action of the authority is arbitrary, irrational, malifide, whimsical or contrary to law, done to favour someone, done with an ulterior motive, misuses its power or such action has adversely affected public interest. The court can also intervene, if it is shown that a condition which is essential is not complied with or which is not essential is being insisted upon and applying such method contract work is allotted to some favoured party. III. From the discussions made herein above the following proposition of the Law can be summarized: a. When a State or its instrumentalities enters into any contract its conduct should be fair and reasonable and cannot be arbitrary and unreasonable. b. When any State action is violative of Article 14, including in realm of contract, a writ petition shall be maintainable. c. In case of pure contractual matters such as interpretation and implementation of a clause in contract cannot be a subject matter of a writ petition inasmuch as such dispute shall fall within the realm of a private Law remedy. d. In case of contract between the State and person aggrieved is non statutory and purely contractual the rights are governed only by terms of the contract. e. When the action impugned is issued in exercise of executive / administrative power and beyond the scope of the contract, writ court can exercise its jurisdiction when found to be arbitrary, irrational and illegal. IV. Now coming to the challenge to the advertisement, this court is of the considered opinion that after withdrawal of the petitioner from the contract and rejection of his claim under clause 25 of the agreement at the hands of the respondent FCI, the petitioner shall not have any right to obstruct the respondent FCI proceeding with the tender process. IV. Now coming to the challenge to the advertisement, this court is of the considered opinion that after withdrawal of the petitioner from the contract and rejection of his claim under clause 25 of the agreement at the hands of the respondent FCI, the petitioner shall not have any right to obstruct the respondent FCI proceeding with the tender process. Of course, the petitioner shall have a right to challenge the decision of the authority declining the claim of the petitioner under clause 25 of the contract before the appropriate forum including forum agreed to by the parties under the contract, which is not a writ court in view of the reasons and settled proposition of law as discussed hereinabove and being a pure contractual dispute. As discussed hereinabove, such issuance of tender cannot be open to judicial scrutiny as invitation of tender is in the realm of contract inasmuch as the petitioner wants to stall the tender process for the reason of alleged breach of contract by the respondent FCI. The petitioner in the considered opinion of this court is left with the option either to take recourse to the Specific Relief Act and / or Specific Performance of the Contract or is at liberty to sue for damages. Accordingly, this court is not inclined to interfere with the tender process already initiated. C. The decision to debar the petitioner to participate in the tender process: I. The learned counsel for the FCI has not been able to show any terms in the contract, which empowers the respondent FCI to debar the contractor from participating in the future tender process for the same work, as a penal action, in a situation when the contract in question is terminated for the alleged fault/ non-performance of the contractor. Therefore, the action of the authorities in debarring the petitioner from participating in the future tender process relating to the same work is not under any term of the contract rather it’s an executive/ administrative decision. And therefore, such action is having public law character. Therefore, the action of the authorities in debarring the petitioner from participating in the future tender process relating to the same work is not under any term of the contract rather it’s an executive/ administrative decision. And therefore, such action is having public law character. In the case in hand, as no power is discernable under the contract to debar the petitioner from the future tender process, passing of the said order without giving any opportunity of hearing to the petitioner hits at the very root of Article 14 of the Constitution of India inasmuch as in the given facts such action is arbitrary and illegal. The same also violates the petitioner’s right under Article 19 (1)(G) of the Constitution of India. Therefore, this Court is of the unhesitant view that the action of debarring the petitioner from participating in the future tender process is not supported by the terms of the contracts and same amounts to denial of equal protection of law and in violation of principle of natural justice. Therefore, in the considered opinion of this Court such decision can be judicially reviewed in exercise of power of this Court under Article 226 of the Constitution of India and same is liable to be interfered with for being violative of right of the petitioner under Articles 14 and 19(1)(G) of the Constitution of India. II. The decision of the FCI to debar the present petitioners from participating in the future tender process arising out of the same work, after termination of the contract cannot be said to be an action in exercise of any power under the terms of the contract in view of the settled proposition of law as discussed hereinabove. 8. The directions: For the reasons discussed hereinabove and the determination made, this writ petition is disposed of with the following directions: I. The Prayer for setting aside and quashing the termination of contract is rejected. The final termination notice is upheld. The employer, FCI shall be at liberty to continue with the impugned tender processor it can initiate fresh tender for the execution of the work in question. II. The decision to not to allow the petitioner to participate in future tender process relating to work contract in question is interfered with and the petitioner shall be permitted to participate in the tender process, if the petitioner so desires III. II. The decision to not to allow the petitioner to participate in future tender process relating to work contract in question is interfered with and the petitioner shall be permitted to participate in the tender process, if the petitioner so desires III. The petitioner shall be at liberty to proceed against the FCI regarding the termination of the Contract and his claim of damages and compassion as per the terms of the Contract. The FCI shall also be at liberty of proceed against the petitioner, in the similar nature and as per terms of the contract.