Union Of India & Ors vs Tantia Construction Pvt.Ltd

alia, for the issuance of a writ in the nature of

2

Certiorari for quashing the order dated 18th August,

2008, passed by the Deputy Chief Engineer

(Construction), Ganga Rail Bridge, East Central

Railway, Dighaghat, Patna, calling upon the

Respondent Company to execute the enlarged/extended

quantity of the contract work pursuant to Tender

No.76 of 06-07. Further relief has been prayed for

by the Respondent Company for a writ in the nature

of Mandamus directing the Petitioners herein to let

it complete the reduced quantity of work relating

to the construction of the Rail Over-Bridge at

Bailey Road, which did not include the additional

work in respect of the extended portion of the

Viaduct and to close the contract and, thereafter,

to make payment for the contract work which it had

executed pursuant to the aforesaid Tender.

2. During the hearing of the writ petition several

issues were identified regarding the Petitioners'

right to force the Company to execute the

3

additional work of constructing the Viaduct which

was neither within the scope of the work nor within

the schedule of work comprised in Tender No.76 of

06-07. A connected issue was also identified as to

whether in a Risk and Cost Tender, the nature of

work provided for in the Tender could be altered

and whether such action would be in violation of

Articles 14 and 19(1)(g) of the Constitution of

India, besides being against the principles of

natural justice and contrary to the clauses in the

General Conditions of Contract included in the

Tender document.

3. It appears that on 12th December, 2006, the

East Central Railways (ECR) invited Risk and Cost

Tender No.76 of 06-07 for the work of construction

of a Rail Over-Bridge at Bailey Road over the

proposed Railway Alignment over the Ganga Bridge at

Patna for an approximate cost of 15.42 crores.

The Tender documents provided that the contract

4

work was to be completed within 15 months from the

date of issuance of the letter of acceptance. Upon

the tenders being opened on 27th December, 2006, the

contract was awarded to the Respondent Company and

a letter of acceptance was issued to the Respondent

Company on 12th/13th February, 2007. The contract

work was accepted at a cost of 19,11,02,221.84p.

and an agreement was thereafter entered into

between the East Central Railways and the

Respondent Company in respect of the contract work,

whereby a Rail Over-Bridge was to be constructed

with two abutments on both sides and three piers in

between. The work also included 500 meters of

approach road with Reinforced Earth Retaining Walls

to a maximum height of 15 meters on both sides of

the Rail Over-Bridge.

4. On account of some of the procedural work,

including the change of the span of the bridge,

change in the design of the pier cap, the

5

requirement of shifting obstacles like a temple,

police station, electrical pole, etc. and also due

to heavy rains, the construction of the wall was

delayed. The delay in preparation of the designs

and drawings which involved the work of a

specialized agency also contributed to the delay.

On account of changes in the design whereby the

Viaduct had to be extended involving an additional

cost of 36.11 crores, the Petitioner No.6

requested the Respondent Company to convey its

consent for execution of the complete work,

including the revised work. By its letter dated

13th February, 2008, the Respondent Company wrote

back to the Petitioner No.6 that they did not want

to take up the construction of the extended Viaduct

which was not covered in the Agreement dated 30th

April, 2007. The Respondent Company refused to

give their consent for the execution of the

complete work at the revised cost of 36.11 crores.

On such refusal the Railways floated a separate

6

Tender No.189 of 2008 for the additional work of

the extended portion of the Viaduct for the Road

Over-Bridge at Bailey Road. The approximate cost

earmarked for the said work was 24.50 crores. As

there was not much response to the said Tender, the

date for submission of the Tender was extended from

9.4.2008 till 23.5.2008 and the assessed cost of

work was revised and re-assessed at

26,35,96,878.63p. Corrigendums were issued from

time to time in connection with the said Tender for

the additional work and ultimately two firms,

namely, Allied Infrastructures and Projects Pvt.

Ltd. and Arvind Techno Engineers Pvt. Ltd. quoted

the rate for execution of the works as

34,11,16,279.39p. and 35,89,93,215.66p.

respectively, for the additional work only.

5. While the Tender process for the extended

contract on the Viaduct was going on, keeping in

view their long relationship, the Respondent

7

Company wrote to the Petitioner No.6 on 12th April,

2008, agreeing to execute the varied contract at

the same rate, terms and conditions of the contract

agreement, but on condition that the price

increase, due to the Price Variation Clause, would

be payable to the company. It was also indicated

that the Company would have no claim for reduction

in quantity by more than 25% in the agreement.

6. In the meantime, the Respondent Company, vide

its letter dated 27th April, 2008, submitted the

revised work programme for the left-over work. The

same was accepted and the time for the execution of

the left-over work was extended till 31st December,

2008.

7. In response to the letter written on behalf of

the Respondent Company on 12th April, 2008, the

Petitioners called upon the Respondent Company by

its letter dated 15th June, 2008, to execute the

varied quantity of work.

8 8. In response to the said letter dated 15th June,

2008, the Respondent Company wrote back to the

Railways on 1st July, 2008, stating that they had

given their consent to execute only the reduced

quantity of work, the cost of which worked out to

12,37,49,888/-. However, the Railways once again

asked the Respondent Company by its letter dated

18th August, 2008, to carry out the complete work,

including the additional work of the Viaduct, at an

approximate cost of 36.11 crores.

9. Aggrieved by the stand taken by the Railways,

the Respondent Company filed a Writ Petition, being

CWJC No.14055 of 2008, before the Patna High Court,

challenging the directions given by the Railway

Authorities for completion of the entire work,

including the extended work. It was the contention

of the Respondent Company that having failed to get

any suitable response to the fresh Tender floated

in respect of the additional work, it was not open

9

to the Petitioners to compel it to complete the

same at an arbitrarily low price, particularly when

the additional work was not part of the original

Tender.

10. The learned Single Judge accepted the case made

out by the Respondent Company, holding that there

was no breach of the agreement entered into between

the Petitioners and the Respondent Company, since

it was the Petitioners themselves who had altered

the agreement by separately tendering the extended

work. The learned Single Judge observed that

consequently the entire work could not be thrust

upon the Respondent Company and the Railways was

free to get the Viaduct constructed separately by

any other contractor, as it had contemplated

earlier. The learned Single Judge further observed

that since the Respondent Company was ready to do

the balance work from the left-over tender, the

rescinding of the entire work by the Railways and

10

to re-tender the entire block could not certainly

be at the risk and cost of the Respondent Company.

The learned Single Judge also observed that the

Respondent Company could not be saddled with the

cost of work which it had never undertaken to

execute.

11. On such findings, the Writ Petition was allowed

and the Railways was advised to expeditiously clear

the payments of the Respondent Company in respect

of the work already completed by it.

12. The matter was taken in appeal to the Division

Bench by the Petitioners herein in LPA No.603 of

2009. The Division Bench by its judgment and order

dated 29th July, 2009, upheld the judgment of the

learned Single Judge and dismissed the Appeal. It

is against the said order of the Division Bench

dismissing the appeal filed by the Petitioners that

the present Special Leave Petition has been filed.

11 13. The same submissions, as had been advanced

before the High Court, were also advanced before us

by the learned Additional Solicitor General, Ms.

Indira Jaising. She urged that the contract of the

Respondent Company had been rightly terminated in

accordance with clause 62 of the General Conditions

of Contract upon the Respondent's refusal to comply

with the forty eight hours' notice served on it.

The learned ASG submitted that since under the

terms of the Agreement entered into between the

parties, the Petitioners were entitled to vary or

alter the nature of the work for which the

contract was given, the Respondent Company was

under a contractual obligation to complete the

work, including the varied work under the contract.

14. The learned ASG submitted that the Petitioners

had no intention of compelling the Respondent

Company from completing the work. On the other

hand, it was the Respondent Company's obligation to

12

complete the work under the contract. It was the

Respondent Company which had, by its letter dated

12th April, 2008, agreed to do the varied work at

the same rate, terms and conditions, subject to the

applicability of the Price Variation Clause. It was

only thereafter that by his letter dated 15th June,

2008, the Petitioner No.6 asked the Respondent

Company to execute the varied quantities of work on

the Rail Over-Bridge at the same rate and on the

same terms and conditions. It was upon the

Respondent Company's failure to do so that notice

was given to it under clause 62 of the General

Conditions of Contract on 10th October, 2008,

indicating that after the expiry of the notice, the

contract would stand rescinded and the work under

the contract would be carried out at the risk and

cost and consequences of the Respondent Company.

The said notice was followed by a letter dated 17th

October, 2008 sent to the Respondent Company by the

Petitioners rescinding the contract and informing

13

the company that the work under the contract would

be carried out at the company's risk and cost.

15. It was also submitted that the agreement

between the parties provided for arbitration in

respect of all disputes and differences of any kind

arising out of or in connection with the contract

whether during the progress of work or after its

completion and whether before or after the

termination of the contract. It was urged that in

view of the said arbitration clause, the Writ Court

was not competent to decide the issue involved in

the dispute which had been raised by the Respondent

Company.

16. It was lastly contended that the scope of the

work did not change, despite the variation of the

design and planning. It was submitted that it was

only a case where the quantity of the work was

decreased in one sense, but increased in another,

and the costs involved on account of such variation

14

was worked out and a fresh figure was computed

which the Respondent Company was bound to accept

under the terms of the contract. It was submitted

that the same would be evident from Clause 23.2

relating to the quotation of rates whereby the

Railway Administration reserved the right to modify

any or all the schedules, either to increase or to

decrease the scope of the work. It was submitted

that the termination of the contract on account of

violation of the terms thereof could not be quashed

by the Writ Court to resurrect the contract which

had already been terminated and the only recourse

available to the Respondent Company was to have the

matter decided in arbitration.

17. Appearing for the Respondent-Company, Mr.

Soumya Chakraborty, learned Advocate, submitted

that from the facts as revealed during the hearing

of the Writ Petition and the Letters Patent Appeal,

it would be apparent that the initial contract

15

signed between the parties on 27.12.2006 was

ultimately abandoned. Mr. Chakraborty submitted

that on account of an alteration in the design of

the Rail Over-Bridge, which included a completely

new work project, a fresh Tender had to be floated

since the new work could not be treated to be part

of the initial contract. Having regard to the

estimated cost of the variation involved, the

Petitioners did not receive adequate response to

the said Tender. On the other hand, two Tenderers

submitted their offers at a much higher rate than

was fixed as the estimated cost of the work which

had been added to the existing work on account of

the alteration in the design of the Rail Over-

Bridge. Noting the problem that the Petitioners

were faced with, with regard to the completion of

the Rail Over-Bridge, the Respondent Company,

keeping in mind its long association with the

Railways, offered to complete the varied work at

the same rates and conditions of contract, subject

16

to the applicability of the Price Variation Clause.

Mr. Chakraborty submitted that by its letter dated

12th April, 2008, the Respondent Company had

referred to the variation of the work by the

agreement entered into between the Railways and the

Respondent Company on account of the alteration of

the original design. Mr. Chakraborty submitted

that it had never been the Respondent Company's

intention to execute the entire work, including the

variation on account of the alteration of the

design, at the same rates and the terms and

conditions and that such offer was confined only in

respect of the balance work left over from the

contract executed on 27th December, 2006. Mr.

Chakraborty submitted that the same would be

evident from the fact that in the letter of 12th

April, 2008, it had also been indicated that the

Respondent Company would have no claim for

reduction in quantity by more than 25% in the

agreement. Mr. Chakraborty submitted that the

17

Petitioners had clearly misunderstood the scope and

intent of the letter dated 12th April, 2008, written

on behalf of the Respondent Company and had

interpreted the same to mean that its offer also

covered the extended work on account of the change

in the design of the Rail Over-Bridge.

18. It was also contended that since the

Petitioners had illegally terminated the contract

with the Respondent Company, the Writ Court had

stepped in to correct such injustice. In fact, Mr.

Chakraborty also submitted that the objection taken

on behalf of the Petitioners that the relief of the

Respondent Company lay in arbitration proceedings

and not by way of a Writ Petition was devoid of

substance on account of the various decisions of

this Court holding that an alternate remedy did not

place any fetters on the powers of the High Court

under Article 226 of the Constitution.

18 19. In support of his aforesaid submissions Mr.

Chakraborty firstly relied and referred to the

decision of this Court in Harbanslal Sahnia vs.

Indian Oil Corporation Ltd. [(2003) 2 SCC 107],

wherein this Court observed that the Rule of

exclusion of writ jurisdiction by availability of

an alternative remedy, was a rule of discretion and

not one of compulsion and there could be

contingencies in which the High Court exercised its

jurisdiction inspite of availability of an

alternative remedy. Mr. Chakraborty also referred

to and relied on the decision of this Court in

Modern Steel Industries vs. State of U.P. and

others [(2001) 10 SCC 491], wherein on the same

point this Court had held that the High Court ought

not to have dismissed the writ petition requiring

the Appellant therein to take recourse to

arbitration proceedings, particularly when the

vires of a statutory provision was not in issue.

19 20. Reference was also made to the decision of this

Court in Whirlpool Corporation vs. Registrar of

Trade Marks [(1998) 8 SCC 1]; National Sample

Survey Organisation and Another vs. Champa

Properties Limited and Another [(2009) 14 SCC 451]

and Hindustan Petroleum Corporation Limited and

Others vs. Super Highway Services and Another

[(2010)3 SCC 321], where similar views had been

expressed.

21. Mr. Chakraborty submitted that while enacting

the Arbitration and Conciliation Act, 1996, the

Legislature had intended that arbitration being the

choice of a private Judge agreed upon by the

parties themselves to settle their disputes, there

should be minimum interference by the regular

Courts in such proceedings. In this regard, Mr.

Chakraborty referred to Section 5 of the aforesaid

Act which indicates that notwithstanding anything

contained in any other law for the time being in

20

force, in matters governed by Part I, no judicial

authority shall intervene except where so provided

in the said Part. Mr. Chakraborty urged that upon

revival a contract can at best be modulated to any

change in circumstances but the termination of the

contract with the Respondent Company was not

warranted, since the decision to terminate the

contract was based on an erroneous interpretation

of the contents of the letter dated 12th April,

2008, written on behalf of the Respondent Company

and the termination had, therefore, been rightly

quashed by the High Court.

22. The facts disclosed reveal that on the basis of

the Tender floated by the Petitioners for

construction of a Rail Over-Bridge at Bailey Road

over the proposed Railway Alignment over the Ganga

Bridge, Patna, the Respondent Company had been

awarded the contract at an approximate cost of

15.42 crores and it was stipulated that the

21

contract was to be completed within 15 months from

the date of issuance of the letter of acceptance.

Admittedly, on the contract being awarded to the

Respondent Company, the letter of acceptance was

issued on 12th/13th February, 2007, and an agreement

was thereafter entered into between the East

Central Railways and the Respondent Company in

respect of the contract work. Admittedly, on

account of the procedural delays, the work could

not be completed within the stipulated period of 15

months from the date of issuance of the letter of

acceptance. The procedural delay was mainly on

account of the fact that the work on the approach

road could commence only after the design, which

was to be initially prepared by the Respondent

Company, was approved by the Railways. The

Respondent Company appointed the Central Road

Research Institute, Delhi, as its consultant for

designing the plan for execution. During the above

process, it was found that each earth filled

22

approach road could not be raised above 7 meters

and, as a result, the remaining 8 meters was to be

made of complete cement casting known as a Viaduct.

The Railways got the matter examined by its own

associate, RITES, and, thereafter, approved the

plan. The consequence of the said change was that

the Tender which was of 19 crores stood increased

to 36 crores on account of the additional work

which was to be undertaken as a result of the

modified design. In fact, the Railways themselves

decided to float a fresh Tender for the additional

work at an estimated cost of 24.50 crores

separately. As a result, the work relating to

construction of the Rail Over-Bridge now consisted

of two parts, one of which the Respondent Company

was executing and the other to be executed by a

different contractor. However, as mentioned

hereinbefore, there was hardly any response to the

Tender floated. Seeing that the quantum of work

under Tender No.76 of 06-07 stood reduced, the

23

Respondent Company wrote to the Petitioners on 12th

April, 2008, agreeing to undertake the varied work

at the same rate and on the same terms and

conditions, subject to the Price Variation Clause.

The problem appears to have begun at this stage

when, on the basis of the said letter dated 12th

April, 2008, the Petitioners directed the

Respondent Company to continue with the unfinished

portion of the plan.

23. Admittedly, the work which had to be completed

within 15 months from the date of issuance of the

letter of acceptance, could not be completed within

the said period and, on the other hand, a new

element was introduced into the design of the Rail

Over-Bridge. It is the case of the Respondent

Company that any item of work directed to be

performed could not be covered by the original

contract dated 12th/13th February, 2007, and

realizing the same, the Railways themselves floated

24

a fresh Tender No.189 of 2008 for the additional

work of the extended portion of the Viaduct.

24. We are of the view that the letter dated 12th

April, 2008, did not cover the extended work on

account of the alteration of the design and was

confined to the work originally contracted for. We

cannot lose sight of the fact that while the

initial cost of the Tender was accepted for

19,11,01,221.84p., the costs for the extended work

only was assessed at 24.50 crores and that two

offers were received, which were for

34,11,16,279.39p. and 35,89,93,215.66p.

respectively. This was only with regard to the

extended portion of the work on account of change

in design. The Respondent Company was expected to

complete the entire work which comprised both the

work covered under the initial Tender and the

extended work covered by the second Tender. The

Respondent had all along expressed its

25

unwillingness to take up the extended work and for

whatever reason, it agreed to complete the balance

work of the initial contract at the same rates as

quoted earlier, despite the fact that a long time

had elapsed between the awarding of the contract

and the actual execution thereof.

25. In our view, the Respondent Company has

satisfactorily explained their position regarding

their offer being confined only to the balance work

of the original Tender and not to the extended

work. The delay occasioned in starting the work

was not on account of any fault or lapses on the

part of the Respondent Company, but on account of

the fact that the project design of the work to be

undertaken could not be completed and ultimately

involved change in the design itself. The

Respondent Company appears to have agreed to

complete the varied work of Tender No.76 of 06-07

which variation had been occasioned on account of

26

the change in the design as against the entire work

covering both the first and second Tenders. To

proceed on the basis that the Respondent Company

was willing to undertake the entire work at the old

rates was an error of judgment and the termination

of the contract in relation to Tender No.76 of 06-

07 on the basis of said supposition was unjustified

and was rightly set aside by the learned Single

Judge of the High Court, which order was affirmed

by the Division Bench.

26. The submissions made on behalf of the

Petitioners that in terms of Clause 23(2) of the

Agreement, the Petitioners were entitled to alter

and increase/decrease the scope of the work is not

attracted to the facts of this case where the

entire design of the Rail Over-Bridge was altered,

converting the same into a completely new project.

It was not merely a case of increase or decrease in

the scope of the work of the original work schedule

27

covered under Tender No.76 of 06-07, but a case of

substantial alteration of the plan itself.

27. Apart from the above, even on the question of

maintainability of the writ petition on account of

the Arbitration Clause included in the agreement

between the parties, it is now well-established

that an alternative remedy is not an absolute bar

to the invocation of the writ jurisdiction of the

High Court or the Supreme Court and that without

exhausting such alternative remedy, a writ petition

would not be maintainable. The various decisions

cited by Mr. Chakraborty would clearly indicate

that the constitutional powers vested in the High

Court or the Supreme Court cannot be fettered by

any alternative remedy available to the

authorities. Injustice, whenever and wherever it

takes place, has to be struck down as an anathema

to the rule of law and the provisions of the

Constitution. We endorse the view of the High

28

Court that notwithstanding the provisions relating

to the Arbitration Clause contained in the

agreement, the High Court was fully within its

competence to entertain and dispose of the Writ

Petition filed on behalf of the Respondent Company.

28. We, therefore, see no reason to interfere with

the views expressed by the High Court on the

maintainability of the Writ Petition and also on

its merits. The Special Leave Petition is,

accordingly, dismissed, but without any order as to

costs.

................................................J.

(ALTAMAS KABIR)

................................................J.

(CYRIAC JOSEPH)

New Delhi

Dated: 18.04.2011