VALMIKI J. MEHTA, J

1. This judgment will dispose of a batch of writ petitions. The parties have agreed that the civil writ petition No.9178/2009 be treated as the lead case and accordingly, the said case was argued. The issues as raised in the other cases are identical and facts are more or less similar.

2. The following issues have been raised by the petitioner:

"A. Price Variation Clause

1. Whether the Price Variation Clause (PVC) as adopted in CS 156 of 2005 was faulty?

2. Whether the Petitioners are entitled to the new PVC as recommended by the Committee on 19.09.2007

B +/-30 Option Clause

Whether the Respondent Authorities could have invoked the +/-30 Option Clause at the end of contract period?"

The aforesaid issues arise on the basis of the following facts:

The petitioner was awarded the contract by the respondent No.3/Indian Railways, being CS 156/05, in the year 2005 for the supply of concrete sleepers by the petitioner to the respondent No.3. The petitioner has stated that for manufacture of the sleepers, respondent No.3 had leased out its land on which the petitioner set up a unit for production of concrete sleepers. Admittedly, the petitioner failed to adhere to the time of performance as required for the supply of concrete sleepers and after giving one extension without imposition of liquidated damages, subsequent extension was granted subject to imposition of liquidated damages. Petitioner however failed to supply the contracted number of sleepers and hence was in breach. The respondent No.3, Northern Railway, who is the purchaser of the goods, also exercised an option, within the contractually permissible period for purchasing additional 30% sleepers more than the originally contracted for. The petitioner contends that the Price Variation Clause as found in the contract was defective from the beginning and it is alleged to be in the knowledge of the respondents and in spite of the same, the respondent No.3 failed to address the grievance of the petitioner as a result of which the petitioner was caused a loss as the price variation formula provided in the contract failed to compensate the petitioner for increased cost. It is further contended by the petitioner that the option of 30% additional sleepers was arbitrarily and unfairly exercised by the respondent No.3, though the same was exercised within the contractually permissible period, inasmuch as the respondent No.3 ought to have taken notice of the short/limited period remaining for the performance of the balance supply under the contract and also that further considering the production capacity of the petitioner, the option for purchase of additional sleepers ought not to have been exercised.

3. The respondents have vehemently opposed the petition. In the counter affidavit filed by the respondents, it has been contended that the writ petition is not the appropriate remedy with respect to issues pertaining to a contract which has been partly performed after being entered into and with respect to which the petitioner is in breach. It is further contended that issues of arbitrariness and unfairness would not arise with respect to contractual relations, although one of the parties is the ‘State?, for the reason that the petitioner entered into the contract with open eyes in a level playing field and the petitioner need not have entered into the contract with the respondent No.3. It is further contended that there were due negotiations with respect to the Price Variation Clause itself and it is only thereafter that the subject contract was entered into under which the petitioner had to supply 4,98,744 sleepers as per the order placed by the respondent No.3. It is contended that the petitioner had in fact offered the quantity of 6,00,000 sleepers to be supplied by January, 2008, however, the order was placed by the respondent No.3 only for 4,98,744 sleepers and subsequently an additional order for 1,49,623 number of sleepers was placed exercising the option clause