1. The present writ application is ostensibly directed against the decision of the Divisional Railway Manager, East Central Railway, Danapur (respondent no.3) dated 7.6.2005 (Annexure I to the counter affidavit), which decision was communicated by the Divisional Engineer (Co-ordination) East Central Railway, Danapur, by his letter dated 16.6.2005 (Annexure 23 to the writ petition). The decision impugned is to the effect that the contract given to the petitioner was being terminated and consequently fresh tenders were to be issued for the remaining works at "risk and cost" of the petitioner.

2. It is the contention of the petitioner that the said decision is vitiated as a matter of law, for having been taken without due notice to the petitioner and having been based on non est facts ignoring material jurisdictional facts and as such the decision is clearly vitiated being perverse, capricous and arbitrary and thus amenable to judicial review by this court in writ jurisdiction.

3. In this writ petition the petitioner is a private limited company doing civil construction and other allied construction works and has its registered office at Patna. Respondent No. 3 is the Divisional Railway Manager, East Central Railway, Danapur, respondent no. 4 is the Divisional Engineer (Co-ordination), East Central Railway, Danapur and respondent no. 5 is the Divisional Engineer (Bridge), East Central Railway, Danapur.

4. On 17.6.2003, the Union of India in the Department of Railway through General Manager, East Central Railway, Hajipur, District-Vaishali, issued a tender notice no. 81/Misc/DNR/ 2003-04 for strengthening of railway bridge nos. 200, 201 and 202 by RCC-Jacketing between Bihta and Koilwar. The petitioner responded to the said on 30.7.2003. After due deliberation letter of acceptance was communicated by letter dated 25.11.2003 by the railways to the petitioner (Annexure 1 to the writ petition). In the said letter, apart from other thing it was stated that the works had to be completed within six months from the date of issue of the said letter, which would be 24.5.2004 but the agreement in this regard would only be executed on 8.07.2004.

5. The petitioner having been awarded the work on 25.11.2003 he was required to mobilize resources and start work as per approved design. On or about 15.12.2003, the petitioner was given set of approved design but apparently when he started work he found difficulty in executing the same, which was brought to the notice of local authority of the railway and around 15.1.2004 works stopped on account of proposed changes in the approved design. The petitioner made formal request on 13.2.2004 in writing (Annexure A to the counter affidavit of railway) for change in design due to practical difficulty in working as per approved design. Again by letter dated 24.3.2004 (Annexure 2) the petitioner appraised the railway of the progress of work and also requested for being given the changed design, so that work could resume. Ultimately, it is only on 6.4.2004, the changed approved design was handed over to the petitioner by the railway (Annexure 3). It would, thus, be seen that though the petitioner was required to complete the entire work on 24.5.2004 there was inordinate delay on part of the railways in changing the design, which was given to the petitioner only on 6.4.2004. The petitioner by letter dated 14.5.2004 (Annexure 4) requested for extension of time for completion of the work upto 24.11.2004.

6. It appears that, in the meantime, the petitioner made efforts to procure tor steel rod etc. as per specification of railway. The contract stipulated tor steel rod of certain specification only to be procured from reputed manufacturers. Petitioner made enquiry from SAIL (Steel Authority of India Limited) and Tata Steel Limited but they expressed their inability to supply the same as per required specifications.

7. By letter dated 20.5.2004 (Annexure 5) the petitioner informed the railway authority that