Authored by R & D Law Chambers LLP Ravish Bhatt  |  Advocate, Bar Council of Gujarat (G/504/2008)  |  Dual-qualified lawyer (India and England & Wales)  |  ADIT, CIOT, London  |  SRA (non-practising) Registration No. 492 477 Published: 4 October 2026  |  Last reviewed: 4 October 2026

 

Law stated as at 4 October 2026, under Article 226 of the Constitution of India, sections 9 and 17 of the Arbitration and Conciliation Act, 1996 as amended in 2015, and the Supreme Court decisions named below. The general rules on alternative remedies, delay and interim relief in the Gujarat High Court are on the firm’s Gujarat High Court page.

 

An arbitration clause in a government contract does not close the High Court’s door, but the Supreme Court now treats it as a near bar to a writ petition. Two situations recur in which a petition gets past it: the State acted outside the contract, for example by cancelling it on a ground the contract does not provide, or it owes money it cannot genuinely dispute. Disputes needing the contract construed or facts found go to the tribunal.

 

Index of Topics

1. Why does the arbitration clause not decide the forum?
2. What did ABL International and Joshi Technologies decide?
3. What does “near bar” mean after MP Power Management?
4. Gate one: when has the State acted outside the contract?
5. Gate two: when can a money claim be pursued by writ?
6. What will a writ court not decide?
7. Is a writ needed for urgent interim protection?
8. How do the two routes compare?
9. How does this play out in the Gujarat High Court?

Frequently Asked Questions

How R & D Law Chambers Works on These Matters

1. Why does the arbitration clause not decide the forum?

Because the power under Article 226 comes from the Constitution, and a contract cannot remove it. The Supreme Court has held that an arbitration clause in a contract with a State instrumentality is not an absolute bar to a writ petition. It is a reason to decline, weighed with the relief sought and the facts the court would have to find.

 

Article 226 empowers every High Court to issue writs to any person or authority, including any Government, for the enforcement of fundamental rights “and for any other purpose”. ABL International Ltd v Export Credit Guarantee Corporation of India Ltd, (2004) 3 SCC 553, describes the power as plenary (paragraph 28).

In UNITECH Limited v Telangana State Industrial Infrastructure Corporation, Civil Appeal No. 317 of 2021, decided on 17 February 2021, the Court restated the point for contracts that contain an arbitration clause. The presence of such a clause in a contract between a State instrumentality and a private party has not acted as an absolute bar to remedies under Article 226; whether recourse to the public law remedy is justified is decided case by case (paragraph 33).

2. What did ABL International and Joshi Technologies decide?

ABL International (2004) held that a contractual writ against the State is maintainable in an appropriate case, that disputed facts alone are no bar, and that a consequential money claim is maintainable. Joshi Technologies (2015) listed when the High Court normally refuses: no public law character, an agreed dispute mechanism, complex facts, or a money claim per se.

 

The three propositions are at paragraph 27 of ABL International. Paragraph 28 sets the limit: the plenary power will not normally be exercised to the exclusion of other available remedies unless the State’s action is arbitrary and unreasonable so as to violate Article 14, or there are other valid and legitimate reasons.

Joshi Technologies International Inc v Union of India, (2015) 7 SCC 728, sets out the four situations in which the High Court “normally” declines at paragraphs 69.1 to 69.4, and adds that writ jurisdiction was not intended to help a party avoid an obligation it voluntarily incurred (paragraphs 70.4 and 70.5).

3. What does “near bar” mean after MP Power Management?

In MP Power Management Co Ltd v Sky Power Southeast Solar India Pvt Ltd (2023), the Supreme Court described an arbitration clause, a forum intended to quicken dispute resolution, as a near bar to entertaining a writ petition. The phrase moves the starting point: the contractor must show why its case is an exception, not the State why it is not.

 

MP Power Management, (2023) 2 SCC 703, gave a structured account of contractual writs, which a three-judge Bench reproduced and adopted in Subodh Kumar Singh Rathour v Chief Executive Officer, 2024 INSC 486, decided on 9 July 2024 (paragraph 55). Four propositions decide most forum disputes.

• The State can be called upon to honour its obligation to pay, unless there is a serious and genuine dispute about its liability, which ordinarily includes a contention, not a mere ruse, that the contractor has not performed (proposition vi).
• An arbitration clause, a forum intended to quicken the pace of dispute resolution, is viewed as a near bar to entertaining a writ petition (proposition viii).
• Where the State terminates a contract acting within its contractual domain, the case ordinarily does not lend itself to redress by writ, particularly where the court would have to resolve disputed facts (proposition xi).
• Not every breach by the State can be dressed up as arbitrary State action; what is required is action that is palpably unreasonable or absolutely irrational and bereft of any principle (proposition xii).

Two openings recur in contract disputes and are taken in turn below: an act that is not the exercise of a contractual right, and a payment the State cannot genuinely dispute. MP Power Management also treats breach of natural justice as signifying a public law element (proposition xv).

4. Gate one: when has the State acted outside the contract?

When the act complained of is not the exercise of a right the contract gives. In Subodh Kumar Singh Rathour (2024), a public authority cancelled a concluded contract for a supposed technical fault in its own tender, a ground the contract did not provide. The Supreme Court held this was executive power, and the writ petition maintainable.

 

A development authority awarded a ten-year contract to maintain two underpasses; a Memorandum of Tender for Work and work orders followed, and work began (paragraphs 4 to 7). The contract allowed termination for the contractor’s failure, breach or non-compliance (paragraph 6). The authority instead cancelled “the tender” for a technical fault (paragraph 12). The Calcutta High Court dismissed the writ petition as a private dispute.

The Supreme Court held that, the cancellation not being made under any term of the contract, the authority had exercised executive power; the dispute was neither purely contractual nor a breach of contract, and the writ petition was maintainable (paragraphs 60 to 62).

The working test: the specific modalities of a contract, such as the work, methods, quality and timeframe, belong to its consensual aspect and may be relegated to private law; judicial review concerns the power to award or cancel (paragraphs 57 and 58).

The first document to read is therefore the notice. One that invokes the termination clause and alleges default engages MP Power Management proposition xi. One that relies on a ground outside the contract is Subodh Kumar Singh Rathour.

5. Gate two: when can a money claim be pursued by writ?

When the State’s liability is not genuinely disputed. MP Power Management recognises that the State can be called upon to honour its payment obligations unless there is a serious and genuine dispute about liability. In UNITECH (2021), the State corporation did not contest its liability to refund the principal, and the Supreme Court upheld the writ ordering the refund with interest.

 

UNITECH had paid ₹165 crore for land for a township project; the State’s title failed, and UNITECH sought a refund by writ although the development agreement contained an arbitration clause (paragraphs 3 to 13 and 33). Before the Supreme Court the State and its corporation did not contest maintainability or the liability to refund the principal (paragraphs 26, 27 and 32). The Court held that the claim raised no disputed question of fact requiring evidence (paragraph 37) and directed refund with interest at the State Bank of India prime lending rate from the dates of payment, without compounding (paragraph 45).

The line is between a debt and a dispute. MP Power Management reconciles ABL International and Joshi Technologies by asking whether the State genuinely disputes liability, and names the typical genuine dispute: the contention that the contractor has not fulfilled its obligations.

6. What will a writ court not decide?

It will not try complex facts that need oral evidence, and it may decline to construe a large body of contract documents even where no oral evidence is needed. Joshi Technologies and MP Power Management both treat these as reasons to send the contractor to the agreed forum. Joshi adds that a writ cannot be used to avoid an obligation the contractor accepted.

 

Facts that can only be tested by detailed evidence and cross-examination cannot conveniently be decided under Article 226 (Joshi Technologies, paragraph 70.3). A writ court may decide a factual dispute turning only on documents, but where there is a large body of documents and mere construction, relegation is not an unsound exercise of discretion (MP Power Management, propositions vii and xi).

It also warns against the opposite error: disputed facts cannot be made a smokescreen to defeat a genuine claim where resolving them is unnecessary to grant relief (proposition ix).

7. Is a writ needed for urgent interim protection?

Usually not. Section 9 of the Arbitration and Conciliation Act, 1996 allows a party to apply to the court for interim measures before or during arbitral proceedings, or after the award but before enforcement. Since 2015, section 9(3) bars the court from entertaining such an application once the tribunal is constituted, unless the remedy under section 17 would not be efficacious.

 

Section 9(3) was added by the Arbitration and Conciliation (Amendment) Act, 2015. A writ filed only for interim protection in a dispute within the arbitration clause invites the objection in ABL International, paragraph 28, that other remedies are available.

8. How do the two routes compare?

A writ petition tests the legality of the State’s decision; arbitration decides the parties’ contractual rights and quantifies them. The writ court reviews the decision-making process and grants public law relief. The tribunal finds facts, construes the contract and awards money. The forum follows the question the contractor needs answered.

 

Question	Writ petition under Article 226	Arbitration under the 1996 Act
What is decided	Whether the State acted arbitrarily, outside its power or in breach of natural justice	Whether either party breached the contract, and the consequences
Typical subject	Cancellation outside the contract’s terms; payment the State does not genuinely dispute	Termination for default, delay, variations, deductions, damages
Evidence	Pleadings and documents; complex oral evidence ordinarily excluded (Joshi Technologies, paragraph 70.3)	Documents, witnesses and experts
Money	Consequential money relief possible (ABL International, paragraph 27); money claims per se normally refused (Joshi Technologies, paragraph 69.4)	Award of sums due, damages and interest
Effect of the arbitration clause	A near bar to entertaining the petition (MP Power Management, proposition viii)	The agreed forum
Interim protection	Interim orders in the petition, at the court’s discretion	Section 9 before the tribunal is constituted; section 17 after it, subject to section 9(3)

 

9. How does this play out in the Gujarat High Court?

The law is the same. A civil writ petition is registered in the Gujarat High Court as a Special Civil Application, and the Supreme Court’s tests apply in full. A petition that leads with the executive act or the undisputed debt meets those tests; one that leads with breach and quantum invites relegation to arbitration.

 

The Court’s published sitting lists assign “SCAs filed under Article 226/227 of the Constitution of India” to its benches. Law declared by the Supreme Court binds every court under Article 141, so the tests above govern a contractual writ in Ahmedabad as anywhere else.

Three documents carry most such petitions: the contract clause the State relied on, or did not; the cancellation or termination notice; and any communication accepting the amount due. Once a High Court has entertained and examined a petition, that is a germane consideration for completing the exercise rather than relegating the party later (MP Power Management, proposition xiv).

Frequently Asked Questions

Is a writ petition maintainable if a government contract has an arbitration clause?

Yes, in an appropriate case. UNITECH (2021) holds that an arbitration clause in a contract with a State instrumentality is not an absolute bar to Article 226. MP Power Management (2023) treats it as a near bar, so the petitioner must show an act outside the contract, a payment the State cannot genuinely dispute, or another clear public law ground.

Can a contractor recover an unpaid bill from a government department through a writ petition?

Only where the State’s liability is not genuinely disputed. MP Power Management holds that the State can be called upon to pay unless there is a serious and genuine dispute about liability, which ordinarily includes a contention, not a mere ruse, that the contractor did not perform. Disputed bills belong to the forum the contract names.

Can the High Court set aside the termination of a government contract?

Yes, where it is not an exercise of a contractual right. In Subodh Kumar Singh Rathour (2024) the Supreme Court held that cancelling a concluded contract on a ground the contract did not provide was executive action open to writ. Termination under the contract’s own default clause ordinarily goes to the agreed forum.

Does a writ petition give interim protection that arbitration cannot?

Not usually. Section 9 of the Arbitration and Conciliation Act, 1996 allows a party to seek interim measures from the court before or during arbitral proceedings. Once the tribunal is constituted, section 9(3) bars the court from entertaining the application unless the remedy under section 17 would not be efficacious.

What happens if the High Court declines to entertain the writ petition?

The contractor is relegated to the agreed forum. Joshi Technologies (2015) states that where the contract provides a particular mode of settling disputes, particularly arbitration, the High Court will normally refuse to exercise its discretion under Article 226 and relegate the party to that mode.

What is a Special Civil Application in the Gujarat High Court?

It is the nomenclature under which the Gujarat High Court registers a civil petition under Article 226 or Article 227 of the Constitution, as its published sitting lists show. The substantive law on writs in contractual matters is the Supreme Court’s, which binds the Gujarat High Court under Article 141.

How R & D Law Chambers Works on These Matters

In disputes under contracts with public authorities, the forum question is usually decided before the merits are reached, and it turns on the authority’s act and the relief sought.

R & D Law Chambers advises on writ petitions under Article 226 before the Gujarat High Court, on arbitration under the 1996 Act, and on EPC and infrastructure contracts with public authorities, including the choice of forum when an authority cancels, terminates or withholds payment.

Related services

• Gujarat High Court Lawyers in Ahmedabad: writ petitions under Articles 226 and 227 and other proceedings before the High Court of Gujarat.
• Arbitration: domestic and international arbitration, including court proceedings under the 1996 Act.

General information on Indian law as at 4 October 2026. Not legal advice, and no advocate-client relationship is created. Each matter turns on its own facts and on the authorities in force when it is decided.