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Mr. Anjan Bhattacharya, the learned advocate appearing for the appellant submits that the Single Bench has misinterpreted the judgment of Ramakrishna Mission and Another vs. Kago Kunya and Others, reported in (2019) 16 SCC 303 and culled out certain portions therefrom without venturing to go into the ultimate findings made therein in upholding the maintainability of the writ petition. He arduously submits that the Single Bench has not considered the distinction between the discharge of public duty and the involvement of public law elements which has been succinctly laid down in the above report. Mr. Bhattacharya vehemently submits that even a private institution/organization may discharge the public duties but that itself cannot be a ground for maintainability of the writ petition, more particularly, when the dispute raised in the writ petition does not involve the public law elements. He further submits that the Single Bench has miserably failed to take into consideration that the contract of service is within the realm of a private law and even if the institution/organization discharges public duties, yet enforceability of a private law cannot be secured by filing the writ petition. He put more emphasis on the fact that mere affiliation with the Central Board of Secondary Education does not render the institution of public authority or the other authority within the meaning of Article 226 of the Constitution of India when there is no public element involved in discharge of such public duty. He, thus, submits that the Single Bench ought to have held that the MAT 1278/21 5 of 37 writ petition is not maintainable to enforce the private contract and therefore, the impugned order is required to be set aside.

29. In view of the aforesaid, the preliminary point raised by Mr. Bari, Learned Advocate, succeeds to the extent that even assuming that the respondent institute is in principle amenable to the writ jurisdiction of this Court giving a liberal construction to the word 'Authority' in Art. 226 of the Constitution, no public law element is involved and no public law right of the petitioner is infringed. Hence, no writ should be issued. The writ petition fails and is dismissed without, however, any order as to costs."

The judgment rendered by the Supreme Court in case of State of Uttar Pradesh (supra) relied upon by Mr. Majumdar does not appear to us to have any bearing on the issue involved in the instant case. The tender was issued by the UP State Warehousing Corporation for unloading/loading of the foodgrains/fertilizer bags from/into railway wagons, tracks etc. from the railway station to the godown and vice versa after awarding the contract which subsisted for a period of 10 days and the said authority cancelled the tender citing an administrative reason. Later on, it transpired that the said cancellation was made as the authority thought it impractical to go ahead to the said tender and the tender was reissued for the same work challenging the said action and the plea of breach of audi alteram partem was taken by the said successful tenderer. In the backdrop of the aforesaid fact it was held that the breach of fundamental rights is a public law element as opposed to a breach of contract and the damages flowing therefrom. The writ petition is, thus, maintainable on the ground that it involves the public law elements in the following:

"23. It may be added that every case in which a citizen/person knocks at the doors of the writ court for breach of his or its MAT 1278/21 33 of 37 fundamental rights is a matter which contains a "public law element", as opposed to a case which is concerned only with breach of contract and damages flowing therefrom. Whenever a plea of breach of natural justice is made against the State, the said plea, if found sustainable, sounds in constitutional law as arbitrary State action, which attracts the provisions of Article 14 of the Constitution of India- see Nawabkhan Abbaskhan v. State of Gujarat (1974) 2 SCC 121: AIR 1974 SC 1471 at paragraph 7. The present case is, therefore, a case which involves a "public law element" in that the petitioner (Respondent No.1 before us) who knocked at the doors of the writ court alleged breach of the audi alteram partem rule, as the entire proceedings leading to cancellation of the tender, together with the cancellation itself, were done on an ex-parte appraisal of the facts behind his back.