ORDER : Ramesh Sinha, CJ. 1. Heard Mr. Ashish Shrivastava, learned Senior Advocate assisted by Mr.Manish Kharbanda, Ms. Ekta Gupta, Mr. Gurpreet Singh Bagga and Mr. Aman Pandey, learned counsel for the petitioners. Also heard Mr. Prateek Sharma, learned counsel, appearing for respondent No. 1, Mr. Praveen Kumar Sahu holding brief of Mr. P.R. Patankar, learned counsel, appearing for the respondent No. 3 and Mr. Vinay Pandey, learned Deputy Advocate General, appearing for the respondent No.3/State. 2. The present petition has filed by the petitioners with the following reliefs: “10.1 It is prayed that this Hon’ble Court may kindly be pleased to issue a writ of certiorari to Respondent No. 1 to submit the entire records of the case before this Hon’ble Court. 10.2 This Hon’ble Court may kindly be pleased to issue a writ in the nature of certiorari and set aside the impugned correspondence dated 20.10.2017 issued by the Respondent No.1. 10.3 This Hon’ble Court may kindly be pleased to issue a writ in the nature of mandamus directing Respondent No. 2 not to act pursuant to the invocation letter dated 20.10.2017 issued by Respondent No.1. 10.4 This Hon’ble Court may be pleased to issue an appropriate writ and/or order or direction holding that the concession agreement dated 20.10.2016 is valid and subsisting. 10.5 That in the event the Bank Guarantee has been en-cashed by the Respondents prior to hearing of the instant petition before this Hon’ble Court, direct that the amount of the Bank Guarantee be returned/refunded to the Petitioner No. 1 by the Respondent No.1. 10.6 Issue an appropriate writ, order or direction, directing the Respondent No. 1 to pay damages to the tune of 20% of the performance security under Clause 4.2 of the Concession Agreement to the Petitioner No. 1. 10.7 Issue an appropriate writ, order or direction, directing that the Concession Agreement stands terminated under Clause 38.2 due to default of the Respondent No. 1 and direct the Respondent No. 1 to make payment under Clause 38.3.2; and 10.8 Any other relief/reliefs which this Hon’ble Court may think fit and proper in the facts and circumstances of the case with cost of the petition may also please be granted to the petitioners.” 3. Brief facts necessary for disposal of this writ petition are that petitioner No.1 entered into a Concession Agreement (hereinafter called as “agreement”) dated 20.10.2016 with respondent No.1 for construction, operation and maintenance of existing road from Patthalgaon at KM 84.250 to Raigarh at KM 194.431 (approximately 110.181 KM) in the State of Chhattisgarh. Under Clause 3.1.1 of the agreement, the concession period was for 15 years commencing from the appointed date i.e. the date on which financial close is attained and all the conditions precedent have been fulfilled or waived by the parties. As per the terms of the agreement, the parties were required to fulfill conditions precedent under Clause 4.5 prior to the 1st Anniversary of the agreement and subsequently reach financial close for the project. Under Clause 4.1.2 of the agreement, respondent No.1 was required to fulfill its conditions precedent within 90 days from the date of issuance of performance bank guarantee by petitioner No.1. Under Clause 4.1.3, petitioner No.1 was required to fulfill its conditions precedent within 180 days from the date of the agreement. 4. In order to achieve financial close, petitioner No.1 had to execute financing agreement, for which it was important for respondent No.1 to have inter alia procured applicable permits relating to environment protection/conservation, ROW to the site of forest. Since respondent No.1 in spite of repeated reminders did not provide the forest clearance, environmental clearance, ROW, among others, petitioner No.1 could not achieve financial close. Petitioner No.1 was informed by respondent No.1 on 18.11.2016 that they were in the process of finalising the Independent Engineer as required under Clause 23.1 of the agreement since under Clause 12.2 of the agreement the drawings of the project were required to be submitted by petitioner No.1 to the Independent Engineer. In this regard, petitioner No.1 issued emails on 05.01.2017 and 12.01.2017 to respondent No.1 to appoint the Independent Engineer as due to delay in appointing the Independent Engineer, work of petitioner No.1 was suffering, however, no response was received from respondent No.1. 5. On 16.01.2017 petitioner No.1 was informed about the finalisation of L.N. Infra Malviya Infra Projects Pvt Ltd as the Independent Engineer, but no agreement with the Independent Engineer was made available to petitioner No.1. Therefore, petitioner No.1 by their emails dated 3.3.2017 and 14.03.2017 was constrained to request respondent No.1 to send the final agreement with the Independent Engineer. 5. On 16.01.2017 petitioner No.1 was informed about the finalisation of L.N. Infra Malviya Infra Projects Pvt Ltd as the Independent Engineer, but no agreement with the Independent Engineer was made available to petitioner No.1. Therefore, petitioner No.1 by their emails dated 3.3.2017 and 14.03.2017 was constrained to request respondent No.1 to send the final agreement with the Independent Engineer. Thereafter, on 10.01.2017 petitioner No.1 furnished a performance bank guarantee of Rs.14,43,00,000/- to respondent No.1 as a part of the conditions precedent under Clause 4.1.3 of the agreement. 6. As respondent No.1 was unable to complete its conditions precedent of which the statutory clearances, ROW were required by potential lenders, petitioner No.1 requested petitioner No.2 (JSPL) in public interest to provide interim financing arrangement. Petitioner No.2 by its letter dated 3.4.2017 undertook to finance the project for a period of six months. Under Clause 4.1.2 of the agreement, respondent No.1 was supposed to fulfill their conditions precedent within 60 days from the date of the agreement, however, respondent No.1 did not fulfill its part of conditions precedent. 7. On 10.04.2017 petitioner No.1 sought status of various clearances including forest clearance from respondent No.1, in order to fulfill its condition precedent and attain financial close. Petitioner No.1 also issued an email dated 12.04.2017 informing respondent No.1 about the various conditions precedent already fulfilled by petitioner No.1 and sought for statutory clearances to achieve financial close. Petitioner No.1 on 19.04.2017 again issued a reminder email as no response was received from respondent No.1. As petitioner No.1 was unable to achieve financial close due to failure of respondent No.1 to procure statutory clearances, ROW amongst others, hence, petitioner No.1 sought an extension of 185 days under Clause 24.1.1 to achieve financial close. In response to the letters dated 3.4.2017 and 10.4.2017, respondent No.1 raised their objection to JSPL financing the project and further stated that respondent No.1 is in the process of meeting its conditions precedent which included obtaining permission for felling of trees from the forest authorities. However, respondent No.1 incorrectly alleged that petitioner No.1 had failed to satisfy its conditions precedent and therefore, this should be treated as a notice under Clause 4.3 for imposing damages. 8. However, respondent No.1 incorrectly alleged that petitioner No.1 had failed to satisfy its conditions precedent and therefore, this should be treated as a notice under Clause 4.3 for imposing damages. 8. As JSPL started facing financial difficulties, petitioner No.1 and respondent No.1 held meetings regarding the proposal for change of ownership of petitioner No.1 from JSPL to Jindal Power Limited (JPL) under Clause 5.3.1 of the agreement and for JPL to finance the project. Petitioner No.1 sought for extension of 90 days (from 19.04.2017 to 17.07.2017) without levy of any damages as per Clause 4.3 and 24.1.1 of the agreement to enable financial close. It was further pointed to respondent No.1 that during the said period, respondent No.1 should also fulfill its conditions precedent. Petitioner No.1 wrote a latter to respondent No.1 on 15.6.2017 seeking approval for change in ownership of the project. Respondent No.1 on 27.06.2017 sought certain information such as copies of audited accounts of JPL, shareholding pattern of JPL, proposed investment of JPL, approval by the Board of Directors etc. Petitioner No.1 by its letter dated 30.06.2017 submitted the information requested by respondent No.1 by its letter dated 27.06.2017 and sought for 6 months from the date of approval for change in ownership to achieve financial close. However, respondent No.1 on 10.07.2017 again sought for in-principle approval from the lender of JPL, its Directors and shareholders within 30 days. Respondent No.1 under Clause 24.1.1 of the agreement extended the period of achieving financial close by 185 days as sought by petitioner No.1 by its letter dated 18.04.2017 and imposed a penalty of Rs.1,33,47,750/- on petitioner No.1 to be deposited by 22.09.2017. 9. SBI Capital Markets Limited, Mumbai by its email dated 21.09.2017 sought information from petitioner No.1 regarding status on procurement of all applicable permits relating to environmental protection and forest land in order to initiate financial close. On receiving SBI Capital email, petitioner No.1 immediately issued a letter to respondent No.1 to provide statutory permits including forest clearance along with the detailed project report (DPR) as in the absence of DPR, financial instructions were not in a position to initiate financial close, whereas the Forest Department, Dharamjaigarh by its letter dated 25.09.2017 informed respondent No.1 that for upgrading Raigarh – Patthalgaon road, necessary forest clearances are needed to be obtained. However, the Independent Engineer, who was appointed after a delay of about 3 months, by its letter dated 25.09.2017 inter alia stated that the project did not require any forest or environmental clearances. Respondent No.1 on 05.10.2017 without any application of mind and simply reiterating the Independent Engineer’s submissions, stated that the project did not require any forest clearances, hence the conditions precedent of respondent No.1 under Clause 4.1.2 of the agreement stood fulfilled. However, due to failure of respondent No.1 in getting the mandatory required forest clearances, the the Divisional Forest Officer, Forest Division, Raigarh by its letter dated 16.10.2017 (Annexure P/6) directed respondent No.1 to cease all construction activities with respect to Raigarh – Patthalgaon Expressway. In response to the letters dated 25.09.2017 and 05.10.2017, petitioner No.1 once again reiterated their request for issuance of statutory clearances in order to achieve financial close. Petitioner No.1 also submitted that they had incurred a cost of approximately 59 crores for undertaking the project towards early mobilization of the project such as setting up of offices for 3 camps, development of equipment such as cranes, bull–dozers etc., foundation work and excavation for the project road. However, in complete contravention of the terms of the agreement as under Clauses 9.2 and 38.2 of the agreement, respondent No.1 without issuing a show cause notice and/or giving any opportunity to petitioner No.1 of being heard, issued the impugned letter dated 20.10.2017 (Annexure P-1) for termination of the agreement under Clause 4.5 of the agreement and sought to invoke the entire performance bank guarantee of Rs.14,43,00,000/- on the ground of non-fulfillment of the conditions precedent by petitioner No.1. Respondent No.1 also issued a letter to respondent No.2 (SBI) for encashing the entire performance bank guarantee of Rs.14,43,00,000/-. Respondent No.2 by its letter dated 20.10.2017 (Annexure P-2) also informed petitioner No.2 regarding the illegal invocation of bank guarantee by respondent No.1 and requested petitioner No.1 to arrange for funds regarding the said encashment. 10. Aggrieved by the termination of the agreement and invocation of the performance bank guarantee of Rs.14,43,00,000/- by respondent No.1, the petitioners filed the instant writ petition. Simultaneously, petitioner No.1 in response to the termination letter sought for 120 days cure period to achieve financial close and to withdraw the letter for encashment of the performance bank guarantee. 11. 10. Aggrieved by the termination of the agreement and invocation of the performance bank guarantee of Rs.14,43,00,000/- by respondent No.1, the petitioners filed the instant writ petition. Simultaneously, petitioner No.1 in response to the termination letter sought for 120 days cure period to achieve financial close and to withdraw the letter for encashment of the performance bank guarantee. 11. Learned Senior Advocate assisted by learned counsel for the petitioners would submit that the completion of petitioner No.1’s condition precedent and achieving financial close within 180 days as set out in Clause 4.1.3 of the agreement were contingent upon the completion of respondent No.1’s condition precedent as set out in Clause 4.1.2 of the agreement within the stipulated time frame of 60 days from the date of the agreement. This is evident from the fact that respondent No.1 had to fulfill its conditions precedent in (60+30 days), whereas petitioner No.1 had (180+185 days) to fulfill its conditions precedent which was contingent upon fulfillment of certain conditions precedent by respondent No.1. He would further submit that under the agreement, petitioner No.1 and respondent No.1 are obligated to fulfill their respective conditions precedent under Clause 4.1.2 of the agreement dated 20.10.2016. There is no clause of waiver in fulfillment of conditions precedent of respondent No.1. Petitioner No.1 was issued letter dated 10.04.2017 to respondent No.1 seeking status of procurement of statutory permits so petitioner No.1 could achieve financial close. Petitioner No.1 also issued an email dated 12.04.2017 informing respondent No.1 about the various conditions precedent already fulfilled by petitioner No.1 and also sought for statutory clearances to achieve financial close. The petitioner on 19.04.2017 issued a reminder email as no response was received from respondent No.1. He would also submit that SBI Capital by its email dated 21.09.2017 sought information from petitioner No.1 regarding status on procurement of all applicable permits relating to environmental protection and forest land. Immediately on receiving SBI Caps’ email, petitioner No.1 issued a letter to respondent No.1 on the same say i.e., 21.09.2017 to provide statutory permits including forest clearance along with detailed project report (DPR). This is because financiers were demanding completion of the conditions precedent of respondent No.1 before entering into any financing agreement. Hence, failure of petitioner No.1 to achieve financial close is due to failure of respondent No.1 to provide statutory clearances to petitioner No.1. This is because financiers were demanding completion of the conditions precedent of respondent No.1 before entering into any financing agreement. Hence, failure of petitioner No.1 to achieve financial close is due to failure of respondent No.1 to provide statutory clearances to petitioner No.1. Additionally, the delay on the part of respondent No.1 can also be seen from the fact that the Independent Engineer under Clause 23.1 was appointed by respondent No.1 only 16.01.2017, after 89 days of entering into the concession agreement. In fact, petitioner No.1 had issued emails on 5.1.2017 and 12.01.2017 to respondent No.1 to appoint the Independent Engineer as delay in appointing the Independent Engineer was causing prejudice to petitioner No.1, however, no response was received from respondent No.1. As petitioner No.1 was unable to achieve financial close due to failure of respondent No.1 to procure statutory clearances, petitioner No.1 sought extension of 185 days under Clause 24.1.1 to achieve financial close by its letter dated 18.04.2017. He contended that under Clause 4.3 and 24.1 of the agreement, it is clearly stipulated that the petitioner shall be entitled to additional time for completion of its conditions precedent without any liability of payment damages if the delay in fulfilling conditions precedent is solely attributable to respondent No.1’s failure to complete its conditions precedent. Respondent No.1 vide letter dated 05.10.2017 intimating petitioner No.1 of having fulfilled their conditions precedent, relying on the Independent Engineer’s letter dated 25.09.2017, is in contradiction to the Forest Department, Dharamjaigarh’s letter dated 25.09.2017 (Annexure P/15) where respondent No.1 was informed that for upgrading Raigarh – Patthalgaon road, necessary forest clearances are required to be obtained. Subsequently, due to failure of respondent No.1 in getting forest clearances, the Forest Department by its letter dated 16.10.2017 had directed respondent No.1 to cease all construction activities with respect to Raigarh – Patthalgaon expressway. Hence, it is stated that failure of respondent No.1 to provide forest clearance shows that respondent No.1 did not fulfill conditions precedent being Clause 4.1.2(d) of the agreement. He further contended that the reliance placed by respondent No.1 on the Independent Engineer’s letter dated 25.09.2017, to submit that respondent No.1 was not required to procure the Forest Clearance and or the ROW is completely baseless and without any merit. A contractual obligation of respondent No.1 cannot be waived off by a thirdparty consultant, who has been appointed by respondent No.1 itself. A contractual obligation of respondent No.1 cannot be waived off by a thirdparty consultant, who has been appointed by respondent No.1 itself. The Independent Engineer cannot give a declaration in contravention to law. It is submitted that the Forest Clearance is a requirement under the Forest Conservation Act and thus cannot be waived off by a report/letter of an Independent Engineer. The scope of an Independent Engineer under the agreement has been clearly laid down in Schedule Q of the agreement. A bare perusal of the said schedule would make it clear that the Independent Engineer cannot determine, whether a contractual obligation of a party is necessary to be fulfilled for the project. Furthermore, the conditions precedent of respondent No.1 under Clause 4.1.2 are to be strictly construed and the same cannot be waived off for any reason whatsoever. The same is clear from proviso to Clause 4.1.2 which only provides for extension of time to fulfill the same, subject to an approval of the concessionaire, petitioner No.1 herein. Thus, the letter dated 25.09.2017 of the Independent Engineer should not be considered and relied upon in the present proceedings as the same being fundamentally flawed and bad in law. Thus, it is evident that petitioner No.1 was unable to fulfill its conditions precedent for achieving financial close due to the failure of respondent No.1 in fulfilling their conditions precedent and in spite of their own failure, respondent No.1 illegally terminated the agreement. He would rely upon the judgment of the Supreme Court in the matter of Union of India and others v. Major General Madan Lal Yadav (RETD.) reported in (1996) 4 SCC 127 , wherein the Hon’ble Supreme Court held that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. Therefore, respondent No.1 could not have terminated the agreement under Clause 4.5 as respondent No.1 has failed to fulfill its conditions precedent and could not have taken advantage of its own wrong and encashed the performance bank guarantee amounting to Rs.14,43,00,000/- by claiming that petitioner No.1 has failed to achieve financial close. He also contended that respondent No.1 has violated the terms of the agreement and such termination and encashment of bank guarantee is illegal and arbitrary. He also contended that respondent No.1 has violated the terms of the agreement and such termination and encashment of bank guarantee is illegal and arbitrary. Respondent No.1 terminated the agreement and encashed the performance bank guarantee under Clause 4.5 which provides for deemed termination upon delay, without any application of mind. Moreover, as per Clause 9.2, petitioner No.1 is entitled to a cure period of 120 days for rectifying any alleged default on its part. However, respondent No.1 terminated the agreement unilaterally despite the fact that petitioner No.1 failed to attain financial close due to the reasons attributable to respondent No.1. Further, Clause 9.2 provides that “only if” petitioner No.1 is unable to complete its conditions precedent within the cure period of 120 days, can respondent No.1 terminate the agreement. However, it is stated under Clause 9.2 that such termination shall be in accordance with the procedure set out under Clause 38 of the agreement. It is submitted that Clause 38.1.2 clearly mandates that before issuing a termination notice, respondent No.1 is bound to issue a notice to petitioner No.1 thereby conveying its intention of issuing termination notice and further granting a period of 15 days to make a representation. As per Clause 9.2 of the agreement, respondent No.1 can only encash the amounts “due to it” and cannot encash the entire performance bank guarantee. In the present case, the amount due to respondent No.1 has been quantified as Rs.1,33,47,750/- in the meeting dated 15.09.2017. It is submitted that the said penalty is denied and disputed by petitioner No.1 because the reasons for not achieving financial close are solely attributable to respondent No.1. Therefore, a harmonious reading of Clauses 4.5, 9.2 and 38 makes it clear that even assuming respondent No.1 was entitled to terminate the agreement, such termination is void as it has not complied with the procedure set out in Clause 38.1.2. Therefore, a harmonious reading of Clauses 4.5, 9.2 and 38 makes it clear that even assuming respondent No.1 was entitled to terminate the agreement, such termination is void as it has not complied with the procedure set out in Clause 38.1.2. It is also submitted that because respondent No.1 failed to fulfill its conditions precedent and petitioner No.1 could not achieve financial close, petitioner No.1 is entitled to claim damages under Clause 4.2 of the agreement as Clause 4.2 clearly states that in an event respondent No.1 does not fulfill any or all the conditions precedent under Clause 4.1.2, respondent No.1 is liable to pay damages to petitioner No.1 calculated at the rate of 0.1% of the performance security for each day’s delay until the fulfillment of such conditions precedent, subject to a maximum 20% of the performance security. It is also stated that the petitioners have spent a substantial money amounting to Rs.59,00,00,000/- for undertaking the project, petitioner No.1 had already completed several works towards early mobilization of the project such as setting up of offices for 3 camps, deployment of equipment such as cranes, bull–dozers etc., foundation work and excavation for the project Road. Therefore, the termination of the agreement and subsequent encashment of the performance bank guarantee of Rs.14,43,00,000/- without hearing petitioner No.1 is illegal and arbitrary. He lastly contended that a writ under Article 226 of the Constitution of India is maintainable in three cases, (i) where the writ petition seeks enforcement of any of the fundamental rights, (ii) where there is failure of principles of natural justice, or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of the Act is challenged. He would rely upon the judgment of the Supreme Court in the matter of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, reported in (1998) 8 SCC 1 (paras 15 and 16). Therefore, conduct of respondent No.1 in issuing the impugned letters and invocation of performance bank guarantee is in violation of principles of natural justice. He would rely upon the judgment of the Supreme Court in the matter of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, reported in (1998) 8 SCC 1 (paras 15 and 16). Therefore, conduct of respondent No.1 in issuing the impugned letters and invocation of performance bank guarantee is in violation of principles of natural justice. Further, he would also rely upon the judgment of the Supreme Court in the matter of Uttar Pradesh Power Transmission Corporation Limited and Another v. CG Power & Industrial Solutions Limited and Another reported in (2021) 6 SCC 15 (paras 66 to 69), wherein the Supreme Court has held that an existence of an arbitration clause does not debar the court from entertaining a writ petition. Moreover, the Hon’ble Supreme Court in catena of decisions has also held that existence of alternate remedy does not bar the remedy of preferring writ petition. It is settled position of law that the State and its instrumentalities cannot act arbitrarily while entering into a relationship, contractual or otherwise with a party and its actions must conform to a standard which is rational and nondiscriminatory. He further contended that respondent No.1 being a State instrumentality under Article 12 of the Constitution of India cannot act in an arbitrary or unreasonable manner. In this regard, reliance is being placed on ABL International Ltd. and Another v. Export Credit Guarantee Corporation of India Ltd. and others reported in (2004) 3 SCC 553 (paras 27 & 28), wherein the Supreme Court has held that a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. It is submitted that mere existence of an alternate remedy does not take away the right of the petitioners to approach the Hon’ble High Court under Article 226 of the Constitution of India. It is submitted that respondent No.1 has terminated the agreement by the impugned letter dated 20.10.2017 even without following the principles of natural justice as the petitioners were not given any opportunity of hearing and no notice was issued to petitioner No.1 before the termination of the agreement. As such, the writ petition deserves to be allowed and the impugned letter dated 20.10.2017 and invocation of performance bank guarantee of Rs.14,43,00,000/- deserve to be quashed/set aside. As such, the writ petition deserves to be allowed and the impugned letter dated 20.10.2017 and invocation of performance bank guarantee of Rs.14,43,00,000/- deserve to be quashed/set aside. He would also rely upon the judgments of the Supreme Court in the matters of M.P. Power Management Company Limited, Jabalpur v. Sky Power Southeast Solar India Private Limited and others reported in (2023) 2 SCC 703 (paras 82.1 to 82.15), Assistant Commissioner of State Tax and others v. Commercial Steel Limited reported in 2021 SCC OnLine 884 (para 11), Maharashtra Chess Association v. Union of India and others reported in (2020) 13 SCC 285 (paras 23 to 26), Radha Krishan Industries v. State of Himachal Pradesh and others reported in (2021) 6 SCC 771 (para 27). 12. On the other hand, learned counsel appearing for respondent No.1 would submit that the instant writ petition involves disputed question of facts, therefore it is not maintainable and liable to be dismissed in view of judgment of the Hon'ble Supreme Court in ABL International Ltd. (supra). The issue involved in the instant writ petition is purely contractual in nature and since the petitioners failed to perform their part of obligations as per concession agreement, they have to face the consequences. The petitioners have efficacious statutory alternative remedy to resolve the dispute under Clause 45.1.1 which provides that any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the parties, and so notified in writing by either party to the other party, the dispute shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 45.2. Clause 45.2 of the agreement deals with conciliation which provides that in the event of any dispute between the parties, either party may call upon the Independent Engineer to mediate and assist the parties in arriving at an amicable settlement thereof. Failing mediation by the Independent Engineer or without the intervention of the Independent Engineer, either party may require such dispute to be referred to the Managing Director, CGRDC and the Chairman of the Board of Directors of the Concessionaire for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) days from the date of reference to discuss and attempt to amicably resolve the dispute. If such meeting does not take place within the 7 (seven) days period or the dispute is not amicably settled within 15 (fifteen) days of the meeting or the dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 45.1.1 or such longer period as may be mutually agreed by the parties, either party may refer the dispute to arbitration in accordance with the provisions of Clause 45.3. Clause 45.3 of the agreement deals arbitration. Clause 45.3.1 provides that any dispute which is not resolved amicably by conciliation, as provided in Clause 45.2, shall be finally decided by reference to arbitration by an arbitral tribunal constituted in accordance with Clause 45.3.2. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the “Rules”), or such other rules as may be mutually agreed by the parties, and shall be subject to the provisions of the Arbitration and Conciliation Act, 1996. The place of such arbitration shall be the capital of the State, and the language of arbitration proceedings shall be English. Clause 45.3.2 provides that there shall be an arbitral tribunal comprising three arbitrators, of whom each party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected, and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Rules. Clause 45.3.3 provides that the arbitrators shall make a reasoned award (the “Award”). Any Award made in any arbitration held pursuant to this Article 45 shall be final and binding on the parties as from the date it is made, and the Concessionaire and the Authority agree and undertake to carry out such Award without delay. Clause 45.3.4 provides that the Concessionaire and the Authority agree that an Award may be enforced against the Concessionaire and/or the Authority, as the case may be, and their respective assets wherever situated. Clause 45.3.5 provides that this Agreement and the rights and obligations of the parties shall remain in full force and effect, pending the Award in any arbitration proceedings hereunder. Clause 45.3.5 provides that this Agreement and the rights and obligations of the parties shall remain in full force and effect, pending the Award in any arbitration proceedings hereunder. The petitioners have also efficacious statutory alternative remedy to file civil suit before competent Civil Court, which the petitioners failed to avail and straightway filed the instant writ petition under Article 226 of the Constitution of India. Therefore the instant writ petition may be dismissed on this ground alone. He would further submit that the petitioners could not fulfill their obligation as per the requirement of concession agreement within time and no concrete proposal could be placed by them within time before respondent No.1 despite lapse of original period to fulfill the requirement and despite the maximum period extended by respondent No.1 available with them as per the agreement, therefore now the petitioners cannot take “U” turn and shift the burden upon respondent No.1 for their own failure. Even otherwise, the bank guarantee of Rs. 14,43,00,000/- has already been encashed and deposited in the account of respondent No.1. It is respectfully submitted that termination of the Concession Agreement has been done as per the provisions of the Concession Agreement of the subject project and respondent No.1 has not acted against any applicable law. As per the provisions of the Concession Agreement, upon occurrence of any failure or default in due and faithful performance of all or any of the Concessionaire's obligations, Respondent No. 1 is entitled to invoke/encash the Performance Security. Further, respondent No. 1 has not violated the principles of natural justice. As per the agreement, petitioner No.1 was required to fulfill its Conditions Precedent by 18.04.2017. Further reasonable time and opportunities had been provided till 19.10.2017 to petitioner No.1 to fulfill its conditions precedent. Petitioner No.1's all previous submissions was withdrawn/modified by themselves and without authentic framework, had proposed new modality from time to time to the authority to achieve Financial Close. However despite giving new assurance to comply with conditions precedent, obligations and achieve financial closer for the Project, petitioner No. 1 had failed to honour their contractual obligations and related assurances in respect thereof, which clearly demonstrates that petitioner No.1's continued contractual default despite several opportunities extended to it. However despite giving new assurance to comply with conditions precedent, obligations and achieve financial closer for the Project, petitioner No. 1 had failed to honour their contractual obligations and related assurances in respect thereof, which clearly demonstrates that petitioner No.1's continued contractual default despite several opportunities extended to it. However, petitioner No.1 failed to achieve the conditions precedent and appointed date and adversely affected the public interest and socio economic benefits sought to be disbursed to public at large by way of project implementation. Hence, in view of the inordinate delay in due observance and non-fulfillment of the conditions precedent, obligations by petitioner No.1 and to safeguard public interest, respondent No. 1 invoked Clause 4.5 of Article 4 of the agreement and notified the deemed mutual termination of the agreement. Respondent No. 1 vide letters dated 10.07.2017 & 05.10.2017 had clearly mentioned that failure to comply with petitioner No.1’s obligation, action would be taken in accordance with the agreement. So respondent No.1 had already informed to petitioner No.1 regarding action would be taken in accordance with the agreement. Respondent No.1 vide its letter dated 05.10.2017 and the Independent Engineer vide its letter dated 25.09.2017 had intimated petitioner No.1 and petitioner No. 2 that an Environmental clearance of the project is not required by CGRDC as per Notification of Ministry of Environment And Forest, New Delhi 14th Sept, 2006 and it's subsequent addendums/notifications. As per this notification, under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restriction and provision on new project or activities or on expansion or modernization of existing projects or activities based on their potential environmental impact as indicated in the schedule 7(f) to the notification (1) New State Highways and (2) Expansion of National/ State Highways greater than 30 KM involving additional right of way greater than 20m involving Land Acquisition and sufficient land widths of ROW/existing lanes are available thus requiring no Forest clearance in any of the road sections/territory. 13. 13. He also submit that respondent No. 1 had invoked and imposed the penal provisions under Clause 24.1.1 of the agreement over M/s Raigarh Patthalgoan Expressway Limited (RPEL) and informed to deposit Rs.1,33,47,750/- as damages calculated @ 0.05% of the Performance Security for each day of delay up to 185 days in the office of Respondent No. 1 by 22.09.2017 which was duly agreed by the representatives of petitioner No.1 and petitioner No. 2 at the meeting. However, petitioner No.1 failed to deposit the said amount at the office of Respondent No. 1. Respondent No. 1 vide its letters dated 22.04.2017 and 05.10.2017 and the Independent Engineer vide its letter dated 25.09.2017 clearly informed to petitioner No. 1 regarding fulfillment of its conditions precedent. Respondent No.1 vide its letter dated 22.04.2017 had informed that the Authority is in position to handover required minimum 90% length of the Project Road to commence with the work soon after the formulation in respect of appointed date completed by petitioner No.1. All public utilities estimates and cost proposals are duly sanctioned by the respective utility entities and deposit of demanded accounts are also paid to the concerned authorities. The felling of trees are already identified by the authority and process of obtaining permission from concerned forest authorities is in progress. The Independent Engineer, M/s L.N. Malviya Infra Project Private Limited vide its letter dated 25.09.2017 had informed to respondent No.1 that the allegations imputing failure on the part of the Authority in fulfilling its obligations in fulfillment of the conditions precedent is far away from the facts and provided the status of the conditions precedent. Despite reasonable time and opportunities provided to petitioner No.1 to fulfill its conditions precedent, petitioner No.1 failed to achieve the fulfillment of its conditions precedent. From the above, it is clear that petitioner No.1 failed to achieve the Financial Close due to its inability to raise the finance from the Bank. Petitioner No.1 has put false allegation that due to failure of respondent No.1, petitioner No.1 was not able to complete its conditions precedent and other obligations under the agreement, whereas respondent No.1 has fulfilled its Conditions Precedent under Clause 4.1.2 of the agreement. Hence, respondent No. 1 is entitled to invoke Clause 4.5 of the agreement for Deemed Termination upon delay by petitioner No.1. Hence, respondent No. 1 is entitled to invoke Clause 4.5 of the agreement for Deemed Termination upon delay by petitioner No.1. He contended that no clearance/permits are required regarding existing State highway road according to the notification dated 14.09.2006 (Annexure R-1/6) clarified by the notification dated 01.12.2009 & 4.4.2011 and respondent No.1 has already provided more than 80% of the total length of the project road vide letters dated 22.04.2017, 25.09.2017 and 05.10.2017. As per Clause 4.1.2(d) of the agreement, forest clearance is required on at least 80% of the total length of the project road save and except permission for cutting tree. The Divisional Forest Officer, Raigarh wrote a letter to the Range Officer on 25.09.2017 that if any work is executed in forest land/revenue forest land, then action is taken against respondent No.1 under the Act of 1980 and the Divisional Forest Officer, Raigarh wrote a letter to respondent No.1 on 16.10.2017 without any basis and has not received the said letter by respondent No.1 before passing the order on 20.10.2017. Respondent No.1 in its letter dated 05.10.2017 clearly mentioned that no forest land is required for the project road. He also contended that cutting of trees is exception and respondent No.1 had already applied for cutting of trees by depositing required amount for revenue land before the authorities. As such, the writ petition deserves to be dismissed. He would rely upon the judgment of the Supreme Court in the matter of Union of India and others v. Puna Hinda reported in (2021) 10 SCC 690 (paras 15 to 18 and 24). 14. We have perused the impugned orders and other documents appended with writ petition, return filed by respondent No.1 and rejoinder filed by the petitioners herein. 15. At this stage, it would be appropriate to notice Article 9 which deals Performance Security. Clause 9.2 provides for appropriation of Performance Security which states as under:- 9.2 Appropriation of Performance Security Upon occurrence of a Concessionaire Default or failure to meet any Condition Precedent, the Authority shall, without prejudice to its other rights and remedies hereunder or in law, be entitled to eacash and appropriate from the Performance Security the amounts due to it for and in respect of such Concessionaire Default or for failure to meet any Condition Precedent. Upon such encashment and appropriation from the Performance Security, the Concessionaire shall, within 15 (fifteen) days thereof, replenish, in case of partial appropriation, to the original level of the Performance Security, and in case of appropriation of the entire Performance Security provide a fresh Performance Security, as the case may be, failing which the Authority shall be entitled to terminate this Agreement in accordance with Article 38. Upon replenishment or furnishing of a fresh Performance Security, as the case may be, the Concessionaire shall be entitled to an additional Cure Period of 120 (one hundred and twenty) days for remedying the Concessionaire Default or for satisfying any Condition Precedent, and in the event of the Concessionaire not curing its default or meeting such Condition Precedent within such Cure Period, the Authority shall be entitled to encash and appropriate such Performance Security as Damages, and to terminate this Agreement in accordance with Article 38.” 16. Article 38 deals with termination. Clause 38.1.2 provides that without prejudice to any other rights or remedies which the Authority may have under this Agreement, upon occurrence of a Concessionaire Default, the Authority shall be entitled to terminate this Agreement by issuing a Termination Notice to the Concessionaire; provided that before issuing the Termination Notice, the Authority shall by a notice inform the Concessionaire of its intention to issue such Termination Notice and grant 15 (fifteen) days to the Concessionaire to make a representation, and may after the expiry of such 15 (fifteen) days, whether or not it is in receipt of such representation, issue the Termination Notice, subject to the provisions of clause 38.1.3.” 17. Article 45 which deals dispute resolution which states as under:- “45.1 Dispute resolution 45.1.1 Any dispute, difference or controversy of whatever nature howsoever arising under or out of or in relation to this Agreement (including its interpretation) between the Parties, and so notified in writing by either Party to the other party (the “Dispute”) shall, in the first instance, be attempted to be resolved amicably in accordance with the conciliation procedure set forth in Clause 45.2. 45.1.3 The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute. 45.1.3 The Parties agree to use their best efforts for resolving all Disputes arising under or in respect of this Agreement promptly, equitably and in good faith, and further agree to provide each other with reasonable access during normal business hours to all non-privileged records, information and data pertaining to any Dispute. 45.2 Conciliation In the event of any Dispute between the Parties, either Party may call upon the Independent Engineer to mediate and assist the Parties in arriving at an amicable settlement thereof. Failing mediation by the Independent Engineer or without the intervention of the Independent Engineer, either Party may require such Dispute to be referred to the Managing Director, CGRDC and the Chairman of the Board of Directors of the Concessionaire for amicable settlement, and upon such reference, the said persons shall meet no later than 7 (seven) days from the date of reference to discuss and attempt to amicably resolve the Dispute. If such meeting does not take place within the 7 (seven) day period or the Dispute is not amicably settled within 15 (fifteen) days of the meeting or the Dispute is not resolved as evidenced by the signing of written terms of settlement within 30 (thirty) days of the notice in writing referred to in Clause 45.1.1 or such longer period as may be mutually agreed by the Parties, either Party may refer the Dispute to arbitration in accordance with the provisions of Clause 45.3 45.3 Arbitration 45.3.1 Any dispute which is not resolved amicably by conciliation, as provided in Clause 45.2, shall be finally decided by reference to arbitration by an arbitral tribunal constituted in accordance with Clause 45.3.2. Such arbitration shall be held in accordance with the Rules of Arbitration of the International Centre for Alternative Dispute Resolution, New Delhi (the “Rules”), or such other rules as may be mutually agreed by the Parties, and shall be subject to the provisions of the Arbitration and Conciliation Act, 1996. The place of such arbitration shall be the capital of the State, and the language of arbitration proceedings shall be English. 45.3.2 There shall be an arbitral tribunal comprising three arbitrators, of whom each Party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected, and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Rules. 45.3.2 There shall be an arbitral tribunal comprising three arbitrators, of whom each Party shall select one, and the third arbitrator shall be appointed by the two arbitrators so selected, and in the event of disagreement between the two arbitrators, the appointment shall be made in accordance with the Rules. 45.3.3 The arbitrators shall make a reasoned award (the “Award”). Any Award made in any arbitration held pursuant to this Article 45 shall be final and binding on the Parties as from the date it is made, and the Concessionaire and the Authority agree and undertake to carry out such Award without delay. 45.3.4 the Concessionaire and the Authority agree that an Award may be enforced against the Concessionaire and/or the Authority, as the case may be, and their respective assets wherever situated. 45.3.5 This Agreement and the rights and obligations of the Parties shall remain in full force and effect, pending the Award in any arbitration proceedings hereunder. 45.4 Adjudication by a tribunal In the event of constitution of a statutory tribunal or other forum with powers to adjudicate upon disputes between the Concessionaire and the Authority, all Disputes arising after such constitution shall, instead of reference to arbitration under Clause 45.3, be adjudicated upon by such tribunal or forum in accordance with the Applicable Laws and all references to Dispute Resolution procedure shall be construed accordingly.” 18. The Supreme Court in the matter of Assistant Commissioner of State Tax and others v. Commercial Steel Limited (supra) has held as under:- “11. The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation.” 19. The Supreme Court in the matter of Radha Krishan Industries (supra) has observed as under:- “27. The principles of law which emerge are that : 27.1. The Supreme Court in the matter of Radha Krishan Industries (supra) has observed as under:- “27. The principles of law which emerge are that : 27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person. 27.3. Exceptions to the rule of alternate remedy arise where: (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged. 27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. 27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion. 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” 20. Recently, the Supreme Court in the matter of M.P. Power Management Company Limited, Jabalpur v. Sky Power Southeast Solar India Private Limited and others (supra) has held as under:- “82. We may cull out our conclusions in regard to the points, which we have framed: 82.1. It is, undoubtedly, true that the writ jurisdiction is a public law remedy. A matter, which lies entirely within a private realm of affairs of public body, may not lend itself for being dealt with under the writ jurisdiction of the Court. 82.2. We may cull out our conclusions in regard to the points, which we have framed: 82.1. It is, undoubtedly, true that the writ jurisdiction is a public law remedy. A matter, which lies entirely within a private realm of affairs of public body, may not lend itself for being dealt with under the writ jurisdiction of the Court. 82.2. The principle laid down in Bareilly Development Authority (supra) that in the case of a non-statutory contract the rights are governed only by the terms of the contract and the decisions, which are purported to be followed, including Radhakrishna Agarwal (supra), may not continue to hold good, in the light of what has been laid down in ABL (supra) and as followed in the recent judgment in Sudhir Kumar Singh (supra). 82.3. The mere fact that relief is sought under a contract which is not statutory, will not entitle the respondent-State in a case by itself to ward-off scrutiny of its action or inaction under the contract, if the complaining party is able to establish that the action/ inaction is, per se, arbitrary. 82.4. An action will lie, undoubtedly, when the State purports to award any largesse and, undoubtedly, this relates to the stage prior to the contract being entered into (see Ramana Dayaram Shetty, [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ]). This scrutiny, no doubt, would be undertaken within the nature of the judicial review, which has been declared in the decision in Tata Cellular vs. Union of India, (1994) 6 SCC 651 . 82.5. After the contract is entered into, there can be a variety of circumstances, which may provide a cause of action to a party to the contract with the State, to seek relief by filing a Writ Petition. 82.6. Without intending to be exhaustive, it may include the relief of seeking payment of amounts due to the aggrieved party from the State. The State can, indeed, be called upon to honour its obligations of making payment, unless it be that there is a serious and genuine dispute raised relating to the liability of the State to make the payment. Such dispute, ordinarily, would include the contention that the aggrieved party has not fulfilled its obligations and the Court finds that such a contention by the State is not a mere ruse or a pretence. 82.7. Such dispute, ordinarily, would include the contention that the aggrieved party has not fulfilled its obligations and the Court finds that such a contention by the State is not a mere ruse or a pretence. 82.7. The existence of an alternate remedy, is, undoubtedly, a matter to be borne in mind in declining relief in a Writ Petition in a contractual matter. Again, the question as to whether the Writ Petitioner must be told off the gates, would depend upon the nature of the claim and relief sought by the petitioner, the questions, which would have to be decided, and, most importantly, whether there are disputed questions of fact, resolution of which is necessary, as an indispensable prelude to the grant of the relief sought. Undoubtedly, while there is no prohibition, in the Writ Court even deciding disputed questions of fact, particularly when the dispute surrounds demystifying of documents only, the Court may relegate the party to the remedy by way of a civil suit. 82.8. The existence of a provision for arbitration, which is a forum intended to quicken the pace of dispute resolution, is viewed as a near bar to the entertainment of a Writ Petition [See in this regard, the view of this Court even in ABL (supra) explaining how it distinguished the decision of this Court in State of U.P. v. Bridge & Roof Co. (India) Ltd., (196) 6 SCC 22 by its observations in paragraph-14 in ABL (supra). 82.9. The need to deal with disputed questions of fact, cannot be made a smokescreen to guillotine a genuine claim raised in a Writ Petition, when actually the resolution of a disputed question of fact is unnecessary to grant relief to a writ applicant. 82.10. The reach of Article 14 enables a Writ Court to deal with arbitrary State action even after a contract is entered into by the State. A wide variety of circumstances can generate causes of action for invoking Article 14. The Court’s approach in dealing with the same, would be guided by, undoubtedly, the overwhelming need to obviate arbitrary State action, in cases where the Writ remedy provides an effective and fair means of preventing miscarriage of justice arising from palpably unreasonable action by the State. 82.11. Termination of contract can again arise in a wide variety of situations. The Court’s approach in dealing with the same, would be guided by, undoubtedly, the overwhelming need to obviate arbitrary State action, in cases where the Writ remedy provides an effective and fair means of preventing miscarriage of justice arising from palpably unreasonable action by the State. 82.11. Termination of contract can again arise in a wide variety of situations. If for instance, a contract is terminated, by a person, who is demonstrated, without any need for any argument, to be the person, who is completely unauthorised to cancel the contract, there may not be any necessity to drive the party to the unnecessary ordeal of a prolix and avoidable round of litigation. The intervention by the High Court, in such a case, where there is no dispute to be resolved, would also be conducive in public interest, apart from ensuring the Fundamental Right of the petitioner under Article 14 of the Constitution of India. When it comes to a challenge to the termination of a contract by the State, which is a non-statutory body, which is acting in purported exercise of the powers/rights under such a contract, it would be over simplifying a complex issue to lay down any inflexible Rule in favour of the Court turning away the petitioner to alternate Fora. Ordinarily, the cases of termination of contract by the State, acting within its contractual domain, may not lend itself for appropriate redress by the Writ Court. This is, undoubtedly, so if the Court is duty-bound to arrive at findings, which involve untying knots, which are presented by disputed questions of facts. Undoubtedly, in view of ABL Limited (supra), if resolving the dispute, in a case of repudiation of a contract, involves only appreciating the true scope of documentary material in the light of pleadings, the Court may still grant relief to an applicant. We must enter a caveat. The Courts are today reeling under the weight of a docket explosion, which is truly alarming. If a case involves a large body of documents and the Court is called upon to enter upon findings of facts and involves merely the construction of the document, it may not be an unsound discretion to relegate the party to the alternate remedy. This is not to deprive the Court of its constitutional power as laid down in ABL (supra). This is not to deprive the Court of its constitutional power as laid down in ABL (supra). It all depends upon the facts of each case as to whether, having regard to the scope of the dispute to be resolved, whether the Court will still entertain the petition. 82.12. In a case the State is a party to the contract and a breach of a contract is alleged against the State, a civil action in the appropriate Forum is, undoubtedly, maintainable. But this is not the end of the matter. Having regard to the position of the State and its duty to act fairly and to eschew arbitrariness in all its actions, resort to the constitutional remedy on the cause of action, that the action is arbitrary, is permissible (see in this regard Shrilekha Vidyarthi v. State of U.P., (1991) 1 SCC 212 ). However, it must be made clear that every case involving breach of contract by the State, cannot be dressed up and disguised as a case of arbitrary State action. While the concept of an arbitrary action or inaction cannot be cribbed or confined to any immutable mantra, and must be laid bare, with reference to the facts of each case, it cannot be a mere allegation of breach of contract that would suffice. What must be involved in the case must be action/inaction, which must be palpably unreasonable or absolutely irrational and bereft of any principle. An action, which is completely malafide, can hardly be described as a fair action and may, depending on the facts, amount to arbitrary action. The question must be posed and answered by the Court and all we intend to lay down is that there is a discretion available to the Court to grant relief in appropriate cases. 82.13. A lodestar, which may illumine the path of the Court, would be the dimension of public interest sub-served by the Court interfering in the matter, rather than relegating the matter to the alternate Forum. 82.14. Another relevant criteria is, if the Court has entertained the matter, then, while it is not tabooed that the Court should not relegate the party at a later stage, ordinarily, it would be a germane consideration, which may persuade the Court to complete what it had started, provided it is otherwise a sound exercise of jurisdiction to decide the matter on merits in the Writ Petition itself. 82.15. Violation of natural justice has been recognised as a ground signifying the presence of a public law element and can found a cause of action premised on breach of Article 14. (See Sudhir Kumar Singh, [State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706 ]).” 21. The Supreme Court in the matter of Puna Hinda (supra) held as under :- “15. Thereafter, the writ petitioner filed a writ petition before the High Court on or about 23.11.2015 for quashing of the letter dated 27.8.2015. The writ petitioner was informed vide the said letter to process the bills through laid down channels before DC Contract and Commander Contract. The letter dated 21.10.2015 was also challenged which is a reply to the notice under Section 80 of the Code of Civil Procedure, 1908. A writ of mandamus was prayed for to pay a sum of Rs.31,57,16,134/- with 18% interest. In reply to the said writ petition, the assertions made by the writ petitioner were controverted but also an objection was raised that there was a clause for arbitration for resolving disputes arising between the parties, therefore, the writ petitioner should have approached the designated authority by appointment of an arbitrator. 16. The appellants in their affidavit had pointed out that after completion of the formation work, the writ petitioner had communicated expenses of Rs.16,93,51,980/- as against provision of Rs.16,26,71,039.40. It was asserted that the writ petitioner has been paid a sum of Rs.42.27 crores as against original cost of Rs.31.01 crores whereas the contractor has claimed a total sum of Rs.71.86 crores. The letter dated 29.10.2013 has been issued by the Headquarters, Border Road Task Force stating that the minimum distance was to be measured from center line of carriage way and not from the edge of the roadway. Thus, the entire claim was based upon imaginary and arbitrary grounds which was enhanced from time to time. 17. Mr. Nataraj, learned Additional Solicitor General appearing for the appellants, pointed out that there are serious disputes about the facts in respect of authenticity of the Joint Final Report and the work done. Therefore, such disputed question of facts could not have been adjudicated by the Writ Court as disputed question of facts relating to recovery of money could not have been entertained thereunder. Therefore, such disputed question of facts could not have been adjudicated by the Writ Court as disputed question of facts relating to recovery of money could not have been entertained thereunder. Reliance has been placed upon the judgment of this Court reported as Kerala State Electricity Board & Anr. v. Kurien E. Kalathil & Ors. wherein it was held as under: “10. We find that there is a merit in the first contention of Mr Raval. Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. 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. 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. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell into an error in coming to the conclusion that the contract in question was statutory in nature. 11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. 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. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies.” 18. Mr. Nataraj also placed reliance on the judgment of this Court reported as Joshi Technologies International Inc v. Union of India, (2015) 7 SCC 728 wherein the following was held: “55. Law in this aspect has developed through catena of judgments of this Court and from the reading of these judgments it would follow that in pure contractual matters the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution cannot be invoked. However, in a limited sphere such remedies are available only when the non-Government contracting party is able to demonstrate that it is a public law remedy which such party seeks to invoke, in contradistinction to the private law remedy simpliciter under the contract. Some of the case law to bring home this cardinal principle is taken note of hereinafter. 59. On the basis of these facts, this Court observed that the aforesaid observations of the High Court relying upon Ramana Dayaram Shetty case were not correct. Thus observed the Court, speaking through Ratnavel Pandian, J.: (Ajai Pal Singh case), SCC pp. 125-26, paras 21-22) “21. This finding in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case there was no concluded contract as in this case. Thus observed the Court, speaking through Ratnavel Pandian, J.: (Ajai Pal Singh case), SCC pp. 125-26, paras 21-22) “21. This finding in our view, is not correct in the light of the facts and circumstances of this case because in Ramana Dayaram Shetty case there was no concluded contract as in this case. Even conceding that the BDA has the trappings of a State or would be comprehended in ‘other authority’ for the purpose of Article 12 of the Constitution, while determining price of the houses/flats constructed by it and the rate of monthly instalments to be paid, the ‘authority’ or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. In this sphere, they can only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the authority (i.e. BDA in this case) in the said contractual field. 22. There is a line of decisions where the contract entered into between the State and the persons aggrieved is nonstatutory 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 [ (1977) 3 SCC 457 ], Premji Bhai Parmar v. DDA [ (1980) 2 SCC 129 ] and Divl. Forest Officer v. Bishwanath Tea Co. Ltd. [ (1981) 3 SCC 238 : (1981) 3 SCR 662 ]” 69. The position thus summarised 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, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion: 69.1. At the same time, discretion lies with the High Court which under certain circumstances, it 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 mode 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.” 24. Therefore, the dispute could not be raised by way of a writ petition on the disputed questions of fact. Though, the jurisdiction of the High Court is wide but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. The dispute as to whether the amount is payable or not and/or how much amount is payable are disputed questions of facts. There is no admission on the part of the appellants to infer that the amount stands crystallized. Therefore, in the absence of any acceptance of Joint Survey Report by the competent authority, no right would accrue to the writ petitioner only because measurements cannot be undertaken after passage of time. Maybe, the resurvey cannot take place but the measurement books of the work executed from time to time would form a reasonable basis for assessing the amount due and payable to the writ petitioner, but such process could be undertaken only by the agreed forum i.e., arbitration and not by the Writ Court as it does not have the expertise in respect of measurements or construction of roads.” 22. Applying the principle of law laid down by the Supreme Court in Puna Hinda (supra) to the facts of the present case, it appears that the instant writ petition involves disputed question of facts. The issue involved in the instant writ petition is purely contractual in nature. Applying the principle of law laid down by the Supreme Court in Puna Hinda (supra) to the facts of the present case, it appears that the instant writ petition involves disputed question of facts. The issue involved in the instant writ petition is purely contractual in nature. The dispute arising out of the terms of contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. The contract between the parties is in the realm of private law. 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. Whether any amount is due and if so, how much and refusal of the respondents to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies as provided in the agreement. 23. 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, it can refuse to exercise. It also follows that under the following circumstances, “normally”, the Court would not exercise such a discretion: (i) The Court may not examine the issue unless the action has some public law character attached to it. (ii) Whenever a particular mode of settlement of dispute is provided in the contract/agreement, the High Court would refuse to exercise its discretion under Article 226 of the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted to through the means of arbitration. (iii) If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. (iii) If there are very serious disputed questions of fact which are of complex nature and require oral evidence for their determination. (iv) Money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances.” 24. In the present case, there was arbitration clause in the agreement for resolving the disputes arising between the parties, therefore, the petitioners should have approached the designated authority by appointment of an arbitrator. 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. 25. In our considered view, the dispute could not be raised by way of a writ petition on the disputed questions of fact though the jurisdiction of the High Court is wide, but in respect of pure contractual matters in the field of private law, having no statutory flavour, are better adjudicated upon by the forum agreed to by the parties. 26. Considering the submissions advanced by the learned counsel for the parties, in view of serious disputed questions of fact and considering the fact that there was a mechanism for conciliation and arbitration clause in the agreement for resolving the disputes arising between the parties, the petitioners have directly approached this Court by means of this writ petition under Article 226 of the Constitution of India for redressal of their grievances without taking recourse to the mechanism of resolving the dispute with the terms of the agreement agreed and signed by them, hence, applying the principle of law laid down by the Supreme Court in Puna Hinda (supra) and the material available on record, we do not find any force in this writ petition. 27. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. However, liberty is reserved in favour of the petitioners to invoke the mechanism of conciliation and arbitration clause as provided in Clauses 45.1, 45.2 and 45.3 of the agreement. No cost(s).