ORDER : 1. The petitioner No.1 being a Public Limited Company has filed this petition with the following prayers: “10(a) The Hon’ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction, directing the respondent herein to reconnect the bulk water supply to the unit of petitioner No.1 herein at Mundra, Kutch, with immediate effect. (b) The Hon’ble Court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned letter dated 24.1.2023 at Annexure P/1, whereby, GWIL has communicated to disconnect the bulk water supply to the Mundra Unit of petitioner No.1 herein, which was being supplied hitherto since the year 2008-2009.” 2. The facts in brief are as under: * It is the case of the petitioners that the petitioner No.1 company is manufacturing carbon black which is the basic raw material for manufacture of tyres. One of the plants is situated at Mundra. The plant was established in the year 2008-09. According to the petitioners, the manufacturing process of carbon black is a continuous process which is water intensive. Therefore, the State government as a part of its Industrial policy to ensure adequate water supply, through the Gujarat Water Infrastructure Limited (for short, hereinafter referred to as `the GWIL’) respondent No.1 has provided for supply of such water. * It is the case of the petitioners that on 24.1.2008, a company under respondent No.1 entered into an agreement for bulk water supply. The initial agreement was for a period of five years. It contained a renewal clause stipulating that the agreement can be renewed at the end of five year term for successive term of ten years. Under the agreement, the respondent GWIL was required to supply a monthly amount of water equally a minimum of 0.20 MLD. According to the petitioner, the supply by a subsequent agreement was increased to 0.80 MLD. The contract was renewed on 16.12.2014 effective from 21.4.2014. In accordance with the terms of the agreement, the petitioner was sanctioned to withdraw 1.75 MLD of water. According to the petitioner, the supply by a subsequent agreement was increased to 0.80 MLD. The contract was renewed on 16.12.2014 effective from 21.4.2014. In accordance with the terms of the agreement, the petitioner was sanctioned to withdraw 1.75 MLD of water. In clause 2 of the agreement, it was specifically stated that the purchaser will purchase a monthly quantity of water that equals the minimum quantity which shall be 80% of the sanctioned quantity i.e. 1400 MLD. It appears that according to the master agreement, according to the petitioners, clause 3.2 thereof provided that the petitioners will purchase a monthly amount of water that equals to the minimum quantity of 0.20 MLD and maximum of 0.52 MLD. * Terms of the master agreement including clause 5.6 and clause 13.4 thereof provided that the purchaser shall pay for the minimum quantity of water specified in clause 3.2 as the case may be irrespective of the consumption or non consumption of the said amount of water. * Clause 13.4 provided that in the event the bulk supplier i.e. the respondent was unable to supply the minimum quantity of water, the purchaser will be given a choice of either to receive free of cost within four months consecutive billing cycles the quantity of water or receive credit etc. * According to the petitioners, on several occasions when the GWIL was not able to supply minimum quantity of water as agreed, GWIL was raising bills only as per actual quantity of water supplied and not as per the minimum quantity of water supplied. According to the petitioners, this was in violation of the agreement and was conveyed to the respondent by letter dated 9.4.2021. A refusal of the GWIL to revise the bills led to a dispute and since the respondent threatened to discontinue the water supply, the petitioners were compelled to pay the entire amounts. For the resolution of the dispute, seeking recourse to the arbitration clause under the agreement an arbitrator was appointed as a result of an order of this Court dated 16.12.2022. * A subsequent renewal was made for a further period of five years effective from 24.1.2008 by a renewal agreement dated 10.7.2018. The agreement was therefore to expire on 23.1.2023. For the resolution of the dispute, seeking recourse to the arbitration clause under the agreement an arbitrator was appointed as a result of an order of this Court dated 16.12.2022. * A subsequent renewal was made for a further period of five years effective from 24.1.2008 by a renewal agreement dated 10.7.2018. The agreement was therefore to expire on 23.1.2023. * It is the case of the petitioners that six months prior to the expiry of the agreement, the petitioner company on 14.7.2022 made an application for renewal of the agreement. It was followed up by letter dated 12.12.2022. The petitioners also sought an appointment with the Managing Director of GWIL which was refused. * It is the case of the petitioners that by communication dated 13.1.2022, GWIL informed the petitioners that it could renew the agreement on certain terms and conditions. To this, the petitioners on 4.1.2023 informed the respondent expressing reservations on certain terms of the agreement being deleted which were otherwise part of the master agreement. It also asked for the copy of the draft agreement. The respondent in response sent a draft agreement of renewal, which according to the petitioners did not contain the stipulation such as the arbitration clause and the clause regarding adjustment of bills in the event of short supply of water as per clause 13.4 of the master agreement. * After certain discussions were held between the parties, by the impugned communication dated 24.1.2023 the respondent No.1 informed the petitioners that since there is disinclination to execute the agreement in the manner proposed by the respondent the water supply agreement has come to an end on 23.1.2023 and the supply of water will be stopped from 25.1.2023. This has given rise to the present petition. 3. On 30.1.2023, this Court issued notice making it returnable on 6.2.2023, as it was the case of the petitioners that the entire manufacturing process for lack of water supply will come to a standstill. On 6.2.2023, the respondent filed an affidavit in reply. Looking to the request made by the petitioners, the matter was taken up for hearing today. 4. Mr. R. S. Sanjanwala, learned Senior Counsel for the petitioners would make the following submissions: * Mr. Sanjanwala would submit that the initial agreement was dated 24.1.2008. It was effective for a period of five years providing further for a renewal of ten years. 4. Mr. R. S. Sanjanwala, learned Senior Counsel for the petitioners would make the following submissions: * Mr. Sanjanwala would submit that the initial agreement was dated 24.1.2008. It was effective for a period of five years providing further for a renewal of ten years. He would take the Court to the terms of the agreement essentially clause 3.2 thereof and clause 13.4 to indicate that in the event of the respondent unable to supply minimum quantity of water, the benefit of clauses (i) and (ii) of Article 13.4 of the agreement was to be extended to the petitioners. This essentially was the bone of contention between the parties. In accordance with clause 17 of the agreement which provided for dispute resolution, the disputes were referred to arbitration and the same is pending. However, pending this, the agreement was renewed in December, 2014 for a period of five years keeping the terms of the master agreement intact, the clauses of renewal too also one and the same. The only limited aspect that the arbitrator is supposed to decide was the question of the refunds of the amount which the petitioners had paid in terms of the relevant clauses and the bills. * Mr. Sanjanwala would further submit that much before the expiry of the contract, on 14.7.2022, the petitioners had informed the respondent of renewal of the agreement. Follow up letter was written on 12.12.2022 to request the respondent to look into the matter at the earliest and complete the documentation before the expiry of the current agreement on 23.1.2023. No response was forthcoming from the respondents and even the Managing Director refused to meet the petitioner No.2. On 31.12.2022, the respondent addressed a letter to the petitioner No.1 informing of the main condition of the renewal agreement. In the renewal agreement, the conditions similar to clause 13.4 was found missing. So also, was it found that some of the conditions were not in consonance with the master agreement. On 4.1.2023, the petitioners therefore addressed a letter to the respondent contending that they cannot change the sanctioned quantity and that if the supply was to be as per clause 13.4 of the master agreement, they would agree to accept a draft copy of the agreement for necessary consideration. He would submit that the draft renewal agreement which was sent on 3.1.2023 did away the clauses of minimum supply of water. He would submit that the draft renewal agreement which was sent on 3.1.2023 did away the clauses of minimum supply of water. * Mr. Sanjanwala would invite the Court’s attention to a letter dated 13.1.2023 written to GWIL conveying certain issues as retaining of clauses 13.4, 17 of the dispute resolution etc. However, in Mr. Sanjanwala’s submission by the impugned communication dated 24.1.2023, in an arbitrary manner and out of motive as a result of the invoking of the arbitration, the petitioners were informed that the water supply will be stopped with effect from 25.1.2023. * Mr. Sanjanwala would submit that the present is a case which does not involve entertaining a dispute which would be in the realm of a contract but the same would involve public policy. He would submit that from the affidavit in reply filed on behalf of the company respondent it is evident that an NOC was granted to the petitioner company for ground water extraction. That permission was in pursuance of the notification of the Ministry of Water Resources dated 24.9.2020 which was pursuant to the directions of the National Green Tribunal. Reading the preamble in the background of the notification dated 24.9.2020, Mr. Sanjanwala would submit that it was on the directions of the Hon’ble Supreme Court in the case of M C Mehta v. Union of India in Writ Petition No.4677 of 1985 that under the Environmental Laws, extraction of ground water was permitted and, therefore, the issue that needs to be adjudged falls within the domain of public policy and not purely a matter of private contract. The NOC was granted for ground water extraction where the local government water supply agencies are not able to supply the desired quantity of water. * Mr. Sanjanwala would read the impugned communication dated 24.1.2023 to submit that damage to the environment would be a direct fall out of the discontinuing of the water supply by the respondent. The NOC was granted for ground water extraction where the local government water supply agencies are not able to supply the desired quantity of water. * Mr. Sanjanwala would read the impugned communication dated 24.1.2023 to submit that damage to the environment would be a direct fall out of the discontinuing of the water supply by the respondent. All these circumstances indicate that the non renewal of the contract for supply of water is motivated as a result of the arbitral proceedings and also the abrupt stopping of the supply of water to an industry without giving it an opportunity of setting out an alternative resource is arbitrary and therefore this Court in exercise of powers under Article 226 of the Constitution of India, can certainly interfere even if the contract is a matter under consideration. The implication of termination of the contract of non renewal thereof has a direct bearing on a declared policy and therefore an element of public law is involved so as to warrant interference under Article 226 of the Constitution of India. 5. In support of his submission, Mr. Sanjanwala would rely on the following decisions: (a) Unitech Limited v. Telangana State Industrial Infrastructure Corporation (TSIIC) reported on 2021 SCC Online SC 99 (b) Noble Resources Limited v. State of Orissa reported in 2006(10) SCC 236 & (c) Uttar Pradesh Power Transmission Corporation Limited v. CG Power & Industrial Solutions Limited reported in 2021 (6) SCC 15 . 6. In the case of Unitech Limited (Supra), Mr. Sanjanwala would rely on paragraphs 38 to 40 of the decision to submit that merely because some disputed question of fact arises, it is improper for the Court to conclude that a writ petition under Article 226 of the Constitution of India is not maintainable. Even an arbitration clause within a contract cannot be an absolute bar in entertaining the petition. 7. Relying on the decision in the case of Noble Resources Limited (Supra) concentrating on para 15, 18, 20 and 32 to 33, Mr. Sanjanwala would submit that as held in the case of Mahabir Auto Stores v. Indian Oil Corpn reported in 1990(3) SCC, 752, the Supreme Court had opined that even if the nature of rights are contractual in nature, the motive of the decision is subject to judicial review. Sanjanwala would submit that as held in the case of Mahabir Auto Stores v. Indian Oil Corpn reported in 1990(3) SCC, 752, the Supreme Court had opined that even if the nature of rights are contractual in nature, the motive of the decision is subject to judicial review. In the facts of the present case, the motive was the pending arbitration proceedings and therefore the termination being motivated, this Court could sit in judicial review. 8. Mr. Sanjanwala would rely on para 66 of the decision in the case of CG Power & Industrial Solutions Limited(Supra) that even in case when the contract has an arbitration clause the same will not bar a petition under Article 226 of the Constitution of India. 9. Mr. Deven Parikh, learned Senior Counsel for the respondent would make the following submissions: *Mr. Parikh would invite the Court’s attention to the prayers made in the petition and submit that no writ of mandamus can be issued in the nature of a direction to the respondent to reconnect the bulk water supply. A party cannot be seen to approach a Court seeking a direction that its water supply be continued particularly when the contract in question has come to an end. *Mr. Parikh would further submit by reading the various conditions of the master agreement, the renewals and the draft renewal agreement which the petitioners were unwilling to be a signatory too and submit that it was evident from the letter dated 31.12.2022 written by the respondent that it was willing to supply water and enter into a renewal agreement. The terms and conditions remained the same. He would invite the Court’s attention to clause 29.1 of the agreement entered at the first point of time and the letter of 31.12.2022. * Mr. Parikh would submit that there existed a clause that the purchaser shall not raise any objection for irregular supply of water despite which the petitioners continued to agitate on the question of short supply. Mr. Parikh in detail would explain the modus of the petitioners in curtailing the supply and then fall back on the ground water supplied pursuant to NOC to seek the benefit of clause 13.4. In his submission, a party to a contract cannot seek recourse to a mischief and then claim that the action of the respondent is motivated. * Mr. Parikh in detail would explain the modus of the petitioners in curtailing the supply and then fall back on the ground water supplied pursuant to NOC to seek the benefit of clause 13.4. In his submission, a party to a contract cannot seek recourse to a mischief and then claim that the action of the respondent is motivated. * Mr. Parikh, on the argument made by the learned counsel for the petitioner on the aspect of the involvement of public policy would submit that the action of the petitioner drawing underground water was in fact contrary to the clause in the agreement which prevented him, using underground water. 10. Mr. Parikh would submit that the case of hand was not the case of termination of a contract in an arbitrary manner but was a case where no renewal was granted. A party to a contract cannot be compelled to renew its contract especially when it is found that there is no fairness on the part of the other party. He would invite the Court’s attention to page 208 to submit that the petitioner continued to harp upon short supply of water. 11. The GWIL according to Mr. Parikh received its water from Narmada. If the petitioner was the only unit of the several units to which the respondents were supplying water which complained about inadequacy of supply and the quality of water being poor, in fact, it was a method or a device to use the underground water. 12. Mr. Parikh would further submit that the petitioners have not come with clean hands. A projection is made before this Court to suggest that the company would have to shut down because the only source of supply that is the respondent has not extended its contract. The averment in the petition also is a false suggestion. In fact, the petitioners are exploiting the underground water and the NOC granted by the Central Ground Water Authority is valid upto 30.11.2023. 13. In support of his submissions that, no writ would lie in matters falling under the realm of contract, Mr. Parikh would rely on the following decisions: (a) Decision dated 21.11.2022 passed in SCA No.9772 of 2021 and allied matters in the case of Ahmedabad Gymkhana Club v. Union of India. 13. In support of his submissions that, no writ would lie in matters falling under the realm of contract, Mr. Parikh would rely on the following decisions: (a) Decision dated 21.11.2022 passed in SCA No.9772 of 2021 and allied matters in the case of Ahmedabad Gymkhana Club v. Union of India. (b) State of U.P. v. Bridge & Roof Company (India) Limited reported in 1996(6) SCC 22 (c) Kerala State Electricity Board v. Kurien E Kalathil reported in 2000(6) SCC 293 (d) Rajasthan State Industrial Development & Investment Corporation and another v. Diamond & Gem Development Corporation Limited reported in 2013(5) SCC 470 (e) Bharati Airtel Limited v. Union of India reported in 2015(12) SCC 1 . 14. Considering the submissions made by the learned advocates for the respective parties, essentially, the Court needs to consider whether this Court can entertain a writ petition with the reliefs that have been prayed for. The answer to this question will depend upon whether can the stand of the respondent be said to be arbitrary and / or motivated. These two will have to be gone into keeping in mind the position of law vis-a-vis entertaining of petition under Article 226 of the Constitution of India in matters which are in the realm of contract. 15. The brief recapitulation of facts indicates that GWIL entered into an agreement with the petitioners for bulk supply of water. The respondent supplier is a Government of Gujarat undertaking and the resource of the water is from the Narmada under the Sardar Sarovar Narmada Nigam Limited. That itself may not fascinate this Court so as to treat the contract and the scope of work being that in the realm of public contract for a public purpose. Simply seen, it is a contract for supply of water to a desirous purchaser who intends to use it for running its factory. In order to mutually fulfill these obligations, the parties entered into a contract. The contract was initially executed on 24.1.2008 and was to enure for a period of five years for renewals on its expiration. The last renewal was effective from 24.1.2018. The contract was to run its life upto 23.1.2023. 16. In context of the subsisting agreement, which the parties have called as “master agreement” certain clauses essentially clause 5.6 and 13.4 read with clause 3.2 thereof gave rise to a dispute inter se between the parties. The last renewal was effective from 24.1.2018. The contract was to run its life upto 23.1.2023. 16. In context of the subsisting agreement, which the parties have called as “master agreement” certain clauses essentially clause 5.6 and 13.4 read with clause 3.2 thereof gave rise to a dispute inter se between the parties. The dispute was with regard to the supply of water and the billing. Admittedly, as per the case of the petitioners apprehending disconnection of water supply, the disputed bills were paid. Recourse to arbitration was undertaken as a result of the claim as of now to the refund of such dues. 17. The parties to the agreement especially the petitioners were fully aware of the life of the contract. The last contract of which the petitioners were aware was renewed upto 23.1.2023. True it may be, that the petitioners six months prior to the contract coming to an end requested the respondents to undertake the exercise of renewal. That letter is of 14.7.2022. The reminder is of 12.12.2022. The respondent GWIL on 31.12.2022, acknowledged the receipt of their application and expressed its willingness to renew the contract albeit subject to certain conditions which may not have formed part of the master agreement. The renewal that the parties especially the GWIL wanted to undertake was subject to clause 13.4 being done away with. This intention of a party to a contract needs to be examined in the background of the past conduct of the parties. It is the case of the petitioners that in accordance with clause 5.6 read with clauses 3.2 and 13.4 of the agreement then subsisting, the petitioner was entitled to the benefit of set off. The case of the respondent was otherwise. That dispute was at large between the parties before the Arbitral Tribunal. Can a party to a contract for supply, in this case water, be compelled to retain a clause in a renewal agreement which has been a bone of contention. “To borrow the terms of the counsel for the petitioner if renewal is sought of a contract on a fresh terms and conditions, merely because the earlier contractual terms are a part of a dispute mechanism can by itself be not be tainted as motivated”. “To borrow the terms of the counsel for the petitioner if renewal is sought of a contract on a fresh terms and conditions, merely because the earlier contractual terms are a part of a dispute mechanism can by itself be not be tainted as motivated”. Parties to a contract are at their free will to suggest, enter into a consultation and arrive at an agreement in terms of a consensus, if found suitable. That intention is evident from the reading of the impugned communication. To borrow the language of the impugned communication when read would indicate that “for the purpose of renewal of the water supply agreement, we had shared a drat of the agreement on 6.1.2023 in pursuance of your letter dated 3.1.2023. Thereafter, a meeting was convened between the parties on 11.1.2023 so as to iron out the issues. During the said meeting, we were given to understand that PCBL has agreed to the terms and conditions of the draft agreement and that apart from the issues which are already subject matter of arbitration proceedings, no further issues are arising which could kindle renewal of the agreement.... It appears that there is no meeting of minds and that the parties are unable to agree to final terms and conditions which are acceptable to both the parties.” 18. The contention of the learned counsel for the respective parties on the maintainability of the petition has to be examined in light of this controversy. 19. Merely because, pursuant to an NOC granted to the petitioners pursuant to some notification issued under the Environmental Laws permits the petitioners to extract part of its need of water cannot give the contract a colour of “a public policy” so as to bring it within the jurisdiction of this Court to examine certainly can’t the Court entertain a petition to compel the respondent to renew a contract with an unwilling partner. In the case of Bharti Airtel Limited (Supra), the Hon’ble Supreme Court considering the issue of the right to extension of a licence, observed that neither under the contract a licenser or a licensee has a right to insist that the other party should continue with the contract even if such other party is not willing to accept it. In the case of Bharti Airtel Limited (Supra), the Hon’ble Supreme Court considering the issue of the right to extension of a licence, observed that neither under the contract a licenser or a licensee has a right to insist that the other party should continue with the contract even if such other party is not willing to accept it. In a writ under Article 226 of the Constitution of India, if the Court were to exercise jurisdiction and entertain the prayers made in this petition it would clearly be a case of the nature of enforcement of a contract between two unwilling partners. 20. Much has been said on the question of law as to whether a writ under Article 226 can be entertained for the reliefs in the nature which the petitioners have prayed for. Decisions have been cited by the respective parties. This Court had the benefit of considering these decisions in the case of Ahmedabad Gymkhana Club (Supra). While considering the decisions of the Supreme Court on the issue on hand, this Court held as under: “7. Reading of the aforesaid paras would indicate that when the State Officers purport to operate within the contractual field and the only grievance of the citizen could be that the contract between the parties is broken, the appropriate remedy cannot be a petition under Article 226 of the Constitution of India. The relationship between the parties is governed by the term of the agreement, and therefore, in light of the decision in the case of Joshi Technologies (supra), of which paras 65 to 72 read as under, enforcement of government contracts in respect of private law rights cannot be permitted by invocation of writ jurisdiction under Article 226 of the Constitution of India. “65. Similarly, in State of Gujarat v. M.P. Shah Charitable Trust, this Court reiterated the principles that if the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, for example, where the matter is governed by a non-statutory contract. 66. At this stage, we would like to discuss at length the judgment of this Court in ABL International Ltd. (supra), on which strong reliance is placed upon by the counsel for both the parties. In that case, various earlier judgments right from the year 1954 were taken note of. 66. At this stage, we would like to discuss at length the judgment of this Court in ABL International Ltd. (supra), on which strong reliance is placed upon by the counsel for both the parties. In that case, various earlier judgments right from the year 1954 were taken note of. One such judgment which the Department in support of their case had referred to was the decision of Apex Court in case LIC of India v. Escorts Ltd. wherein the Court had held that ordinarily in matter relating to contractual obligations, the Court would not examine it unless the action has some public law character attached to it. The following passage from the said judgment was relied upon by the respondents: “If the action of the State is related to contractual obligations or obligations arising out of the tort, the court may not ordinarily examine it unless the action has some public law character attached to it. Broadly speaking, the court will examine actions of State if they pertain to the public law domain and refrain from examining them if they pertain to the private law field. The difficulty will lie in demarcating the frontier between the public law domain and the private law field. It is impossible to draw the line with precision and we do not want to attempt it. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the action and a host of other relevant circumstances. When the State or an instrumentality of the State ventures into the corporate world and purchases the shares of a company, it assumes to itself the ordinary role of a shareholder, and dons the robes of a shareholder, with all the rights available to such a shareholder. There is no reason why the State as a shareholder should be expected to state its reasons when it seeks to change the management, by a resolution of the company, like any other shareholder." This Court dealt with this judgment in the following manner: “13. We do not think Court in the above case has, in any manner, departed from the view expressed in the earlier judgments in the case cited hereinabove. We do not think Court in the above case has, in any manner, departed from the view expressed in the earlier judgments in the case cited hereinabove. This Court in the case of Life Insurance Corporation of India (Supra) proceeded on the facts of that case and held that a relief by way of a writ petition may not ordinarily be an appropriate remedy. This judgment does not lay down that as a rule in matters of contract the court's jurisdiction under Article 226 of the Constitution is ousted. On the contrary, the use of the words "court may not ordinarily examine it unless the action has some public law character attached to it" itself indicates that in a given case, on the existence of the required factual matrix a remedy under Article 226 of the Constitution will be available." 67. Insofar as the argument of the respondents in the said case that writ petition on contractual matter was not maintainable unless it is shown that the authority performs a public function or discharges a public duty, is concerned, it was answered in the following manner: “22. We do not think the above judgment in VST Industries Ltd. (supra) supports the argument of the learned counsel on the question of maintainability of the present writ petition. It is to be noted that VST Industries Ltd. against whom the writ petition was filed was not a State or an instrumentality of a State as contemplated under Article 12 of the Constitution, hence, in the normal course, no writ could have been issued against the said industry. But it was the contention of the writ petitioner in that case that the said industry was obligated under the concerned statute to perform certain public functions, failure to do so would give rise to a complaint under Article 226 against a private body. While considering such argument, this Court held that when an authority has to perform a public function or a public duty if there is a failure a writ petition under Article 226 of the Constitution is maintainable. In the instant case, as to the fact that the respondent is an instrumentality of a State, there is no dispute but the question is: was first respondent discharging a public duty or a public function while repudiating the claim of the appellants arising out of a contract ? In the instant case, as to the fact that the respondent is an instrumentality of a State, there is no dispute but the question is: was first respondent discharging a public duty or a public function while repudiating the claim of the appellants arising out of a contract ? Answer to this question, in our opinion, is found in the judgment of this Court in the case of Kumari Shri Lekha Vidyarthi & Ors. vs. State of U.P.& Ors. [1991] (1) SCC 212] wherein this Court held: “The impact of every State action is also on public interest. XXX XXX XXX 24. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters." 23. It is clear from the above observations of this Court, once State or an instrumentality of 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 above said requirement of Article 14 then we have no hesitation that a writ court can issue suitable directions to set right the arbitrary actions of the first respondent." 68. The Court thereafter summarized the legal position in the following manner: “27. From the above discussion of ours, 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 facts 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. (b) Merely because some disputed questions of facts 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 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 Corporation vs. Registrar of Trade Marks, Mumbai & Ors. [ 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." 69. The position thus summarized in the aforesaid principles has to be understood in the context of discussion that preceded which we have pointed out above. As per this, no doubt, there is no absolute bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions of fact or even when monetary claim is raised. At the same time, discretion lies with the High Court which under certain circumstances, can refuse to exercise. It also follows that under the following circumstances, 'normally', the Court would not exercise such a discretion: 69.1 The Court may not examine the issue unless the action has some public law character attached to it. 69.2 Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said made of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.2 Whenever a particular mode of settlement of dispute is provided in the contract, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said made of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. 69.3 If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. 69.4 Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. 70. Further legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to the contracts entered into by the State/public Authority with private parties, can be summarized as under: 70.1 At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness. 70.2 State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discrimination. 70.3 Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc. 70.4 Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred. 70.5 Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business. 70.6 Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages. 70.7 Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice. 70.8 If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided Page 35 of 38 under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction. 70.9 The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary. 70.10 Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. 70.11 The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. 71. Keeping in mind the aforesaid principles and after considering the arguments of respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court should have exercised discretionary jurisdiction under Article 226 of the Constitution. First, the matter is in the realm of pure contract. It is not a case where any statutory contract is awarded. 72. As pointed out earlier as well, the contract in question was signed after the approval of Cabinet was obtained. In the said contract, there was no clause pertaining to Section 42 of the Act. The appellant is presumed to have knowledge of the legal provision, namely, in the absence of such a clause, special allowances under Section 42 would impermissible. Still it signed the contract without such a clause, with open eyes. In the said contract, there was no clause pertaining to Section 42 of the Act. The appellant is presumed to have knowledge of the legal provision, namely, in the absence of such a clause, special allowances under Section 42 would impermissible. Still it signed the contract without such a clause, with open eyes. No doubt, the appellant claimed these deductions in its income tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it shared the profits with the Government as well. However, this conduct of the appellant or even the respondents, was outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of Mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the contract to the contrary as noted above, particularly, Article 32 thereof. It was purely a contractual matter with no element of public law involved thereunder.” 21. Fruitful reference was made to the decision by the Hon’ble Supreme Court in the case of Joshi Technologies International Inc. v. Union of India reported in 2015(7) SCC 728 . The Supreme Court had discussed the law whether the extra ordinary remedy of writ under Article 226 of the Constitution of India can be invoked in contractual matters. The Court had made reference to the decisions cited by the learned counsel for the petitioner too. In Para 70.3 of the decision, the Court to quote held as under: “Even in case where question is a choice or consideration of competing claims before entering into the filed of contract, facts have to be investigated and found before the question of violation of Article 14 of the Constitution could arise. If those facts are disputed and required assessment of evidence, the correctness of which can only be tested satisfactorily by taking detailed evidence, ….” the case could not be conveniently and satisfactorily decided in proceedings under Article 226 of the Constitution of India. In context of the distinction between public law and private law element in the contract with the State, the Supreme Court held that the distinction though may be getting blurred, the Supreme Court held as under. In context of the distinction between public law and private law element in the contract with the State, the Supreme Court held that the distinction though may be getting blurred, the Supreme Court held as under. Relevant paragraph Nos.70.9, 70.10 and 70.11 are reproduced hereunder: “70.9 The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary. 70.10 Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness. 70.11 The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes.” 22. In light of what is therefore stated hereinabove and for the reasons assigned, there is no merit in the petition and the petition is accordingly dismissed. No order as to costs.