1 D.B. CIVIL SPECIAL APPEAL (W) NO.143/2005 M/s North India Construction Co., Jaipur Vs. The State of Rajasthan & Ors. Date of Order :: 04-01-2007 HON'BLE THE CHIEF JUSTICE SHRI S.N.JHA HON'BLE SHRI JUSTICE GOVIND MATHUR Shri R.L. Jangid for the appellant. Shri Shyam Ladhrecha, Dy.G.A. for the State. This special appeal is directed against the order of the learned Single Judge dated 29.11.2004 dismissing the writ petition of the appellant. The appellant had filed S.B. Civil Writ Petition no.4823/2004 for setting aside orders by which the respondents cancelled the contract and directed recovery of some amount. The appellant was awarded a contract which he could not complete on time. For the remaining work, fresh tender was invited and work was completed. Invoking the cost and risk clause of the agreement, order was passed for recovery of the amount. The learned Single Judge observed that no interference was called for and it was open to the appellant to invoke the arbitration clause of the contract in respect of its grievance. In M/s Radhakrishna Agarwal Vs. State of Bihar, AIR 1977 SC 1496 = (1977) 3 SCC 457 the 2 Supreme Court approved the categorization of cases involving breaches of obligation by the State or its agents as under :- “(i) Where a petitioner makes a grievance of breach of promise on the part of the State in cases where on assurance or promise made by the State he has acted to his prejudice and predicament but the agreement is short of a contract within the meaning of Art.299 of the Constitution; (ii) Where the contract entered into between the person aggrieved and the State is in exercise of a statutory power under certain Act or Rules framed thereunder and the petitioner alleges a breach on the part of the State; and (iii) Where the contract entered into between the State and the person aggrieved is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract, and the petitioner complains about breach of such contract by the State.” Dealing with the third category of cases, the Court observed in para 15 of the judgment that where questions of pure alleged breaches of contract are involved, no writ or order can be issued under Article 226 of the Constitution “to compel the authorities to remedy a breach of contract pure and simple”. In the above case, the petitioner M/s Radhakrishna Agarwal had been awarded lease for collection and exploitation of sal seeds from forest areas which was cancelled as the petitioner failed 3 to pay the revised royalty. The case was found to be in the third category of cases of breach of obligations referred to above, and the decision of the High Court declining to interfere in the matter on the ground that the breach was not amenable to the writ jurisdiction under Article 226 of the Constitution was approved by the Supreme Court. The present case too is one of alleged breach of contract simplicitor. It is not in dispute that the petitioner failed to complete the contract within time. Whether the respondents were entitled to invoke the cost and risk clause, and therefore entitled to cancel the contract and recover the amount of loss suffered by them on account of non- completion of the work within time necessitating fresh tender and completion of the work through another agency are questions of fact which cannot be decided in writ jurisdiction. Counsel for the appellant submitted that as the contract was cancelled unilaterally without giving opportunity of hearing in violation of rules of natural justice, for breach of Article 14 of the Constitution the appellant is entitled to invoke the writ jurisdiction of this Court under Article 226 of the Constitution. He cited certain judgments. We are of the view that though much water has flown and a number of decisions have been rendered on the point 4 of amenability of writ jurisdiction to cases of breach of contract by the State or its agents the decision in the case of M/s Radhakrishna Agarwal (supra) rendered by a three Judge Bench of the Apex Court has not been diluted during last three decades. No decision has been brought to our notice in which it has been held that contractual obligation arising out of works contract can be enforced by the High Court under Article 226 of the Constitution of India. In the circumstances, we find no error in the order of the learned Single Judge dismissing the writ petition. It was/is open to the appellant to file suit in civil court in accordance with law or invoke the arbitration clause and have his claim adjudicated and grievance redressed in the appropriate forum. The appeal is dismissed with the above observation. [GOVIND MATHUR],J. [S.N.JHA],CJ. Skant/- 5