B. SUDERSHAN REDDY, J.

(1) THE petitioner prays for an appropriate writ, order or direction, particularly one in the nature of a writ of mandamus declaring the action of the respondents in not settling the accounts of the petitioner with regard to Packages 158 and 157 and not releasing the payment for the deposits amounting to Rs. 4,90,869/- pending with mem as illegal/ arbitrary and unjust and violative of Articles 14, 19 (1) (g) of the Constitution of India and also the principles of natural justice. The petitioner consequently prays for a direction directing the respondents to release the deposits pending with them with interest.

(2) RELEVANT FACTS: The petitioner is stated to be a contractor and was awarded the contract for the formation of the Flood Banks to Nallamada drain in Guntur District for the packages 157 and 158. Two different agreements were entered into by the petitioner with the 1st respondent on 12-3-1992 for the packages 157 and 158. The site is stated-to have been handed over to the petitioner on 30-11-1991 and 20-3-1992 respectively for the packages 158 and 157. The petitioner is stated to have completed all the items provided in the agreement which are possible for execution within the stipulated period and extension of the time was also granted without imposing any liquidated damages. The completed works were maintained for six months to the satisfaction of the Department as per the agreements. The petitioner was expelled from the site by the letter dated 30-4-1993 for the above two packages on the ground that the petitioner had abandoned the work.

(3) ACCORDING to the petitioner, the respondents did not care either to complete the work or release the deposits of Rs. 4,90,869 /- and the security deposit of Rs. 1,65, OOO/- for package No. 158 and Rs. 1,13,938/- as additional security from each interim bill. So also certain amounts with regard to package no. 157. It is however stated that the work could not be completed as necessary extension of time was not granted by the respondents and the petitioners proposal in this regard was rejected. Repeated representations were made to the Chief Engineer to settle the accounts. Instead of settling the accounts, the petitioner was being driven from pillar to post from one office to another. In nutshell the complaint of the petitioner is that he is entitled for certain amounts with regard to the said works under the agreements entered into by him with the respondents.

(4) THE respondents filed a counter-affidavit, inter alia, stating that the writ petition filed under Article 226 of the Constitution of India is totally misconceived and is not maintainable. There is no need to refer in detail to the dispute between the parties relating to the work. It is, however, specifically stated that the assets of the petitioner cannot be released unless the work is completed and accounts relating to the works are finalised in all respects as per the agreement conditions. As the work is not completed even by other agency the assets cannot be released. It is also stated that the petitioner did not construct the groynes as contemplated in the original agreement resulting in serious damage. It is stated that the petitioner himself is responsible for the loss that occurred due to the breaches which have to be closed by entrustment of the work to some other agency.

(5) IT is obvious that there is serious dispute between the parties as to who is responsible for the breach of the agreement and each accusing other for the breach. Each party is blaming that they have sustained damage on account of the inaction and negligence of the other.

(6) I have elaborately heard the learned counsel for the petitioner and the . learned Government Pleader. With regard to the maintainability of the writ petition, learned counsel for the petitioner relies upon the decision of the supreme Court in Ramana vs. International Ports Authority of India1, Mahabirauto stores vs Indian Oil Corporation 2, Srilekha Vidyarthi vs State of Uttar Pradesh3.

(7) THERE is no dispute in the instant case that the Contract is not entered by the respondents in exercise of any statutory power as such. The contract in question is not a statutory one. All the terms and conditions for completing the work, payment, schedule, liquidated damages if any, and the time schedule for completing the work are regulated by the terms and conditions of the agreement itself. It is a voluntary act on the part of the parties concerned. e. the petitioner and the respondents to have entered into the contract. Mutual rights and liabilities of the parties are governed by the terms of the contract referred to in the pleadings. There is no compulsion of any of the parties to enter into those contracts which is voluntary on both sides. In such circumstances of the case, there can be no question of State power being invoked in such contracts. There is any amount of controversy between the parties as to who is responsible for the work not being completed within the time stipulated. Under such circumstances, it would not be possible for this Court to resolve this dispute in exercise of its jurisdiction under Article 226 of the Constitution of India.

(8) THIS court in exercise of its jurisdiction under Article 226 of the constitution can issue a writ of mandamus directing the State or its instrumentalities to act in accordance with law and comply with the statutory and legal obligations and discharge its public duty strictly in accordance with i law. But can a writ of mandamus be issued compelling the State or its instrumentalities to act in a particular manner and in accordance with the terms and conditions of a contract In case where there is no statutory exercise of power and where the contract or agreement thereof is not traceable to any statute as such, normally this Court would not issue a writ of mandamus. The decision of the apex Court in Ramana vs. International Airports Authority of India s case (supra) does not support the case of the petitioner at all. It is true as held in Mahabit Auto Stores case (supra) that Article 14 of the Constitution of India would be applicable even with regard to the acts of the State in entering or not entering into the contracts in exercise of its executive power under Article 298 of the Constitution of India. Whatever be the activity of the public authority it should meet the test of Article 14 of the Constitution of India. If a governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Even this judgment of the apex Court does not render any assistance in the matter. The apex Couttin Assistant Excise Commissioner vs. Issue peter4 explained its earlier decisions in Dwarakadas Marfatia vs. Board of Trustees of The Port of Bombay*, Mahabir Auto Storess case (supra), and Shrtiekha vidyarthis case (supra) and it would be appropriate to refer to the said decision in detail, which reads as follows:"26. Learned counsel for respondents then submitted that doctrine of fairness and reasonableness must be read into contracts to which State is a party. It is submitted that the State cannot act unreasonably or unfairly even while acting under a contract involving State power. Now, let us see, what is the purpose for which mis argument is addressed and what is the implication The purpose, as we can see, is that though the contract says that supply of additional quota is discretionary, it must be read as obligatory - at least to the extent of previous years supplies by applying the said doctrine. It is submitted that if this is not done, the licensees would suffer monetarily. The other purpose is to say that if the State is notable to so supply, it would be unreasonable on its part to demand the full amount due to it under the contract. In short, the duty to act fairly is sought to be imported into the contract to modify and alter its terms and to create an obligation upon the State which is not there in the contract. We must confess, we are not aware of any such doctrine of fairness or reasonableness. Nor could the learned counsel bring to our notice any decision laying down such a proposition. Doctrine of fairness or the duty to act fairly and reasonably is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice where the action is administrative in nature. Just as principles of natural justice ensure fair decision where the function is quasi-judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. But it can certainly not be invoked to amend, alter or vary the express terms of the contract between the parties. This is so, even if the contract is governed by statutory provisions,. e. where it is a statutory contract-or rather more so. It is one thing to say that a contract-every contract-must be construed reasonably having regard to its language. But this is not what the licensees say. They seek to create an obligation on the other party to the contract just because it happens to be the State. They are not prepared to apply the very same rule in converse case,. i.e., where the State has abundant supplies and wants the licensees to lift all the stocks. The licensees will undertake no obligation, to lift all those stocks even if the State suffers loss. This one-sided obligation, in modification of express terms of the contract, in the name of duty to act fairly, is what we are unable to appreciate. The decisions cited by the learned counsel for the licensees do not support their proposition, In Dwarakadas Marfatia vs. Board of Trustees of The Port of Bombay (1989 (3) SCC 293 [LQ/SC/1989/266] ) it was held mat where a public authority is exempted from the operation of a statute like Rent control Act, it must be presumed that such exemption from the statute is coupled with the duty to act fairly and reasonably. The decision does not say that the terms and conditions of contract can be varied, added or altered by importing the said doctrine. It may be noted that though the said principle was affirmed, no relief was given to the appellant in that case. Shrilekha Vidyarthi vs. State of U. P. ((1991) 1 SCC 212 [LQ/SC/1990/571] ) was a case of mass termination of District Government counsel in the State of U. P. It was a case of termination from a post involving public element. It was a case of non-government servant holding a public office, on account of which it was held to be a matter within the public law field. This decision too does not affirm the principle now canvassed by the learned counsel. We are, therefore, of the opinion that in case of contracts freely entered into with the State, like the present ones, there is no room for invoking the doctrine of fairness and reasonableness against one party to the contract (State) for ; the purpose of altering or adding to the terms and conditions of the contract, merely because it happens to be the State. In such cases, the mutual rights and liabilities of the parties are governed by the terms of the contracts (which may be statutory in some cases) and the laws relating to contracts. It must be remembered that these contracts are entered into pursuant to public auction, floating of tenders or by negotiation. There is no compulsion on anyone to enter into these contracts. It is voluntary on both sides. There can be no question of the State power being involved in such contracts. It bears repetition to say mat the State does not guarantee profit to the licensees in such contracts. There is no warranty against incurring losses. It is a business for the licensees. Whether they make profit or incur loss is no concern of the State. In law, it is entitled to its money under the contract. It is not as if the licensees are going to pay more to the state in case they make substantial profits. We reiterate that what we have said hereinabvoe is in the context of contracts entered into between the state and its Citizens pursuant to public auction, floating of tenders or by negotiation. It is not necessary to say more than this for the purpose of these cases. What would be the position in the case of contracts entered into otherwise than by public auction, floating of tenders or negotiation, we need not express any opinion herein. 27. Counsel for respondents also relied upon the decision in Mahabir Auto stores vs. Indian Oil Corpn. (1990 (3) SCC 752 [LQ/SC/1990/139] ) But that case turned on its peculiar facts. All that was done was to advise the IOC to take the appellant into confidence before putting an end to his long-enjoyed right. The observations in the judgment are confined to the particular facts of that case. It is significant to note that it was not a case where the rights of the parties were governed by a contract. This decision cannot, therefore, support the contention of the respondents.

(9) THERE is no dispute that all the rights and obligations of the parties in the instant case are regulated by the agreement entered into by the petitioner and the respondents. The contract entered into by the petitioner and the respondent is not statutory in nature. May be, one party to the agreement under the contract is the State itself. The claim to remedy is based on the alleged infringement of private law right. There is no positive prescription of law by a statute or statutory rules. The relief sought is in the nature of an action for realisation of money and such an action can be brought even against a public authority only by way of a civil proceeding save in the same manner as against the private party. There is no decision as such taken by the respondents so as to be judicially reviewed by this Court. The State in its manifold activities may sometime enter into ordinary commercial contracts and such actions do not properly belong to the field of public law but belong to the field of private law.

(10) "the court will not debate academic matters or concern itself with the intricacies of trade and commerce. 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. "

(11) THE Supreme Court in Bareilly Development Authority vs. Ajai Pal Singh declared the law on the subject in the following terms:"even conceding that the BDA has the trappings of a State or would be comprehended in other authority for the purpose of Art. 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. There after 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 in the said contractual field". __________________________________________

(12) IN G. B. Mahajan vs. Jalgaon Municipal Council, the apex court held thus:"while it is true that principles of judicial review apply to the exercise by a government body of its contractual powers, the inherent limitations on the scope of the inquiry are themselves a part of those principles. For instance, in a matter even as between the parties, there must be shown a public law element to the contractual decision before judicial review is invoked. In the present case the material placed before the court falls far short of what the law requires to justify interference. "

(13) A Division Bench of our High Court in National Thermal Power Corporation ltd. vs. M/s. Bhanu Construction Company (P) Ltd., Hyderabad held as follows:"25. From the above decisions, it is clear beyond any doubt that merely because the Government or an officer of the Government, or an agency or instrumentality of the State enters into a contract for execution of certain works with another person, it cannot be said to be acting in the public law field. Its rights and obligations are the same as those of any other person entering into a contract. The only limitation is that before entering into the contract, it must act consistent with the guarantee contained in Art. 14. But once a contract is entered into, it is the terms of the contract that govern, and no question of Article 14, or arbitrary action, arises. The very concept of one party to the contract acting arbitrarily and thereby violating Article 14 is misplaced. The action may be wrongful; but it is not such an action as is amenable to writ jurisdiction on the ground that it is arbitrary. If a contract is terminated wrongfully, it cannot be questioned in a writ petition saying that the termination is arbitrary or unreasonable. The concept of arbitrary or unreasonable action amenable to writ jurisdiction is relevant only where the State acts under a statute, or in exercise of its executive/administrative power. Taking any other view would not only be contrary to well established authority, but would also cast an uncalled for burden upon this Court. Not only this court would be exercising its jurisdiction for determining the private rights of the parties arising from, or relating to a contract, but would also be obliged to enquire into disputed questions of fact, which it would not ordinarily undertake.".

(14) THE facts in the instant case would, show that there is no question of use of State power being involved in the matter. If there is any breach on the part of the respondents herein as alleged by the petitioner, appropriate relief can always be obtained by the petitioner in a properly constituted civil proceeding. The relief prayed for in the writ petition is in the nature of a money decree as the petitioner is claiming a particular sum of money from the respondents. Such a claim for money arising out of a commercial transaction cannot be adjudicated by this court in exercise of its jurisdiction under Article 226 of the Constitution of India.

(15) FOR all the aforesaid reasons, I hold that the writ petition as such is not maintainable and the same is accordingly dismissed. No costs.