UNION OF INDIA & ORS.versusTANTIA CONSTRUCTION PVT. LTD.

                    [2011] 5 S.C.R. 397


                 UNION OF INDIA & ORS.                            A
                              v.
          TANTIA CONSTRUCTION PVT. LTD.
      (Special Leave Petition (C) No.18914 of 2010)
                      APRIL 18, 2011

     [ALTAMAS KABIR AND CYRIAC JosePH, JJ.]

    CONTRACT:

      Tender - Risk and Cost Tender - Construction of Rail        c
Over-Bridge - Tender of respondent-company accepted and
agreement entered into between the parties - Changes in
design thereafter whereby Viaduct had to be extended
involving additional cost - Respondent-company declining to
take up the construction work of extended Viaduct which wa:? 0
not covered in agreement and for which a separate tender was
floated - Railways directing the Company to carry out the
complete work including the additional work - Held: The work
relating to construction of Rail Over-bridge a~er the revised
design consisted of two parts, one which the respondent- E
company was executing ahd the other to be executed by a
different contractor - Respondent-company has satisfactorily
explained its position regarding its offer being confined only
to the balance work of the original tender and not to the
extended work- To proceed on the basis that the respondent-
company was willing to undertake the entire work at the old F
rates was an error of judgment and the termination of, the
contract in relation to original Tender on the basis of $Bid
supposition was unjustified and was rightly set aside by the
Single Judge of the High Court,· which order was affirmed by
the Division Bench.                                            G

    CONSTITUTION OF IND/A, 1950:

    Articles 226 and 32 - Writ petition - Maintainability of in
                             397                                  H
    398     SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A  view of the plea of alternative remedy -Held : An alternative
  remedy is not an absolute bar to the invocation of the writ
  jurisdiction of the High Court or the Supreme Court -
   Constitutional powers vested in the High Court or the Supreme
   Court cannot be fettered by any alternative remedy- Injustice,
B 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 - The Court endorses the view of the High Court
  that notwithstanding the provisions relating to the Arbitration
   Clause contained in the agreement, it was fully within its
c competence to entertain and dispose of the writ petition filed
  on behalf of the respondentccompany - Contract - Alternative
  remedy.

         The East Central Railways, on 12-12-2006, invited
    tenders by Risk and Cost Tender No. 76 of 06-07 for the
D   work of construction of a Rail Over-Bridge. The tender of
    the respondent-company was accepted at a cost of Rs.
    19,11,02,221.84p. and an agreement dated 30-4-2007 was
    entered into between the parties in respect of the
    contract work. On account of some of the procedural
E   work, including the change of the span of the bridge,
    change in the design of the peir cap, the requirement of
    shifting obstacles and also due to heavy rains, the
    construction of wall was delayed. The delay in
    preparation of the designs and drawings which involved
F   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 Rs. 36.11 crores, petitioner No. 6 requested the
    respondent-company to convey its consent for execution
G   of the complete work including the revised work. By letter
    dated 13.2.2008, the respondent- company apprised
    petitioner No. 6 of its inablility to take up the construction
    work of the extended Viaduct which was not covered in
    the Agreement dated 30.4.2007. Thereupon, the Railways
H   floated a separate Tender No. 189 of 2008 for the
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 399
                  PVT. LTD.

additional work of extended portion of the Viaduct for the A
Road Over-Bridge. The approximate cost earmarked for
the said work was raised from Rs. 24.50 crores to
Rs.26,35,96,878.63p. Two tenderes from two different
companies for Rs. 34, 11, 16,279.39p. and Rs.
35,89,93,215.66p. were submitted. While the tender B
process for the extended contract on the Viaduct was
going on, the respondent-company wrote to petitioner
No. 6 on 12.4.2008, 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 C
to Price Variation Clause, would be payable to the
company. The petitioners by their letter dated 15.6.2008
called upon the respondent-company to execute the
varied quantity of work. The respondent-company by its
letter dated 1.7.2008 informed the petitioner that they had
given their consent to execute only the reduced quantity
                                                            0
of work, the cost of which worked out to Rs. 12,3749,888/
-. However, the Railways by its letter dated 18.8.2008
asked the respondent-company to carry out tlie complete
work, including the additional work of the Viaduct, at an
approximate cost of Rs. 36.11 crores. The respondent- E
com pany filed a writ petition before the High Court
challenging the directions of the Railway authorities for
completion of the entire work including the extended
work. The Single Judge of the High Court held that the
respondent-company had completed the earlier work and F
the entire work could not be thrust upon it, and the
Railways was free to get the Viaduct constructed
separately by another contractor. The Single Judge
allowed the writ petition and directed the Railway
Authorities to expeditiously clear the payments of the G
respondent-company in respect of the work already
completed by it. The Division Bench of the High Court
declined to interfere in the Letters Patent Appeal.
Aggrieved , the Railway authorities filed the special leave
petition.                                                   H
    400      SUPREME COURT REPORTS             (2011] 5 S.C.R.


A         Dismissing the petition, the Court

         HELD: 1.1 The facts disclosed reveal that on the
    basis of the tender floated by the petitioners for
    construction of a Rail Over-Bridge, the respondent-
    company had been awarded the contract at an
8   approximate cost of Rs.15.42 crores and it was stipulated
    that the 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
C   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
D   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
E   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
    approach road could not be raised above 7 meters and,
F   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
G   which was of Rs.19 crores stood increased to Rs.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 Rs. 24.50
H   crores separately. [para 22] [412-E-H; 413-A-D]
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 401
                  PVT. LTD.
                                                             A
     1.2 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 there was hardly any response to the tender floated,
and seeing that the quantum of work under Tender No.76 B
of 06-07 stood reduced, the respondent-company wrote
to the petitioners on 12-4-2008, agreeing to undertake the
varied work at the same rate and on the same terms and
conditions, subject to the Price Variation Clause but 'on
the basis of the said letter dated 12-4-2008, the petitioners C
directed the respondent-company to continue with the
unfinished portion of the plan. [para 22] :(413-C-F]

     1.3 The letter dated 12-4-2008, did not cover the
extended work on account of the alteration of the design 0
and was confined to the work originally contracted for.
The Court cannot lose sight of the fact that while the
initial cost of the tender was accepted for Rs.
19, 11,01,221.84p., the costs for the extended work only
was assessed at Rs.24.50 crores and that two offers were i E
received, which were for Rs. 34, 11, 16,279.39p. and
Rs.35,89,93,215.66 p. 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 works covered under the initial tender and the F
extended work covered by the second tender. The
respondent had all along expressed its 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 G
a long time had elapsed betwee.n the awarding of the
contract and the actual execution thereof. [para 24] [414-
B-D]
    1.4 The respondent-company has satisfactorily            H
    402    SUPREME COURT REPORTS             [2011] 5 S.C.R.


A 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
B 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
c occasioned on account of 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
0 termination of the contract in relation to original Tender
  No.76 of 06-07 on the basis of said supposition was
  unjustified and was rightly set aside by the Single Judge
  of the High Court, which order was affirmed by the
  Division Bench. [para 25] [414-F-H; 415-A]

E      2. As regards maintainability of the writ petition on
  account of the Arbitration Clause 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
F Court and that without exhausting such alternative
  remedy, a writ petition would not be maintainable. The
  various decisions of this Court would clearly indicate that
  the constitutional powers vested in the High Court or the
  Supreme.Court cannot be fettered by any alternative
G 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. This Court endorses the view of the High
  Court that notwithstanding the provisions relating to the
H
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 403
                  PVT. LTD.
Arbitration Clause con~ained in the agreement, it was fully A
within its competence'to entertain and dispose of the writ
petition filed on behalf of the respondent -company. [para
27] [415-D-F]                   .
     3. There is no reason to interfere with the views
                                                            8
expressed by the High Court on the maintainability of the
writ petition and also on its merits. [para 28] [415-G]
    Harbanslal Sahnia vs. Indian Oil Corporation Ltd, {2003)
2 SCC 107; Modern Steel Industries vs. State of U.P. and
others (2001) 10 SCC 491; Whirlpool Corporation vs. C
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 sec 321 - relied on.           D
                     Case Law Reference:
    {2003) 2 sec 101        relied on           para 19
    c2001) 10 sec 491       relied on           para 19     E
    {1998) 8 sec 1           relied on          para 20
    (2009) 14 sec 451       relied on           Para 20
    (201 O) 3 sec 321       relied on           para 20
                                                            F
    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
18914 of 2010.

    From the Judgment and Order dated 29.07.2009 of the
High Court of Patna in LPA No. 603 of 2009.
                                                            G
    Indira Jaisingh, ASG, R.K. Rathore, Sonam Anand,
Supriya Jain and Arvind Kumar Sharma for the Appellants.

    Soumya Chakrobarty, Sanjay Said and Dharma Bir Raj
Vohra for the Respondent.                              H
    404      SUPREME COURT REPORTS                   (2011) 5 S.C.R.


A         The Judgment of the Court was delivered by

         ALTAMAS KABIR, J. 1. The sole Respondent, Mis. Tantia
    Construction Pvt. Ltd .. filed writ petition, being CWJC No.14055
    of 2008, against the Petitioners herein, inter alia, for the
    issuance of a writ in the nature of Certiorari for quashing the
8
    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
C   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
D   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
E   were identified regarding the Petitioners' right to force the
    Company to execute the 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
F   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
G   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
H
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 405
        PVT. LTD. [ALTAMAS KABIR, J.]

Ganga Bridge at Patna for an approximate cost of 15.42           A
crores. The Tender documents provided that the contract 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         B
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          c
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 D
the change of the span of the bridge, change in the design of
the pier cap, the 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 E
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 Rs. 36.11 crores,
the Petitioner No.6 requested the Respondent Company to
convey its consent for execution of the complete work, including F
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 G
consent for the execution of the complete work at the revised
cost of Rs. 36.11 crores. On such refusal the Railways floated
a separate Tender No.189 of 2008 for the additional work of
the extended portion of the Viaduct for the Road Over-Bridge
                                                                 H
    406      SUPREME COURT REPORTS                  (2011] 5 S.C.R.


A   at Bailey Road. The approximate cost earmarked for the said
    work was Rs. 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 Rs. 26,35,96,878.63p.
B   Corrigendums were issued from time to time in connection with
    the said Tender for the additional work and ultimately two firms,
    namely, Allied Infrastructure~ and Projects Pvt. Ltd. and Arvind
    Techno Engineers Pvt. Ltd. quoted the rate for execution of the
    works as Rs. 34, 11, 16,279.39p. and Rs. 35,89,93,215.66p.
c   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 Company wrote to the Petitioner
    No.6 on 12th April, 2008, agreeing to execute the varied
D   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
E   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.
F
         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.
G        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
    Rs. 12,37,49,888/-. However, the Railways once again asked
H
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 407
        PVT. LTD. [ALTAMAS KABIR, J.]
the Respondent Company by its letter dated 18th August, 2008,       A
to carry out the complete work, including the additional work of
the Viaduct, at an approximate cost of Rs. 36.11 crores.

      9. Aggrieved by the stand taken by the Railways, the
Respondent Company filed a Writ Petition, being CWJC
                                                                    8
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 to the Petitioners to compel   C
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            D
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      E
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       F
of the entire work by the Railways and 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.     G

     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.
                                                                    H
    408     SUPREMF: COURT REPORTS                 [2011] 5 S.C.R.


A      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
B dismissing the appeal filed by the Petitioners that the present
  Special Leave Petition has been filed.

        13. The same submissions, as had been advanced before
  the High Court, were also advanced before us by the learned
C 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
D 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.
E
        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 complete the work under the contract.
F 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
G 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
H
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 409
        PVT. LTD. [ALTAMAS KABIR, J.]
a~d the work under the contract would be carried out at the risk      A
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 the company that the work under
the contract would be carried out at the company's risk and cost.     B

      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             C
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.
                                                                      D
     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 was worked        E
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            F
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                G
Respondent Company was to have the matter decided in
arbitration

    17. Appearing for the Respondent-Company, Mr. Souniya
Chakraborty, e learned Advocate, submitted that from the facts
as revealed during the hearing of the Writ Petition and the           H
    410      SUPREME COURT REPORTS                  [2011) 5 S.C.R.


A   Letters Patent Appeal, it would be apparent that the initial
    contract 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
B   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
c   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
D   association with the Railways, offered to complete the varied
    work at the same rates and conditions of contract, subject 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
E   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
F   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
G   for reduction in quantity by more than 25% in the agreement.
    Mr. Chakraborty submitted that the 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
H
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 411
        PVT. LTD. [ALTAMAS KABIR, J.]
the extended work on account of the change in the design of              A
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,        B
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         C
place any fetters on the powers of the High Court under Article
226 of the Constitution.

       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.               D
[(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.   E
Chakraborty also referred to and relied on the decision of this
Court in Modem Steel Industries vs. State of U.P. and others
[(2001) 10 sec 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             F
arbitration proceedings, particularly when the vires of a
statutory provision was not in issue.

     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                G
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
sec 32;1. where similar views had been expressed.
                                                                         H
    412     SUPREME COURT REPORTS                   [2011] 5 S.C.R.


A      21. Mr. Chcikraborty 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
B such proceedings. Jn this regard, Mr. Chakraborty referred to
  Section 5 of the aforesaid Act which indicates that
  notwithstanding anything contained in any other Jaw for the time
  being in force, in matters governed by Part I, no judicial authority
  shall intervene except where so provided in the said Part. Mr.
c 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
0
  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-
E   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 Rs. 15.42
    crores and it was stipulated that the contract was to be
    completed within 15 months from the date of issuance of the
F   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.
G   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
H   was to be initially prepared by the Respondent Company, was
 UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 413
         PVT. LTD. [ALTAMAS KABIR, J.]

 approved by the Railways. The Respondent Company                    A
 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 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           B
  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 Rs. 19 crores stood increased to Rs. 36 crores on account
  of the additional work which was to be undertaken as a result      c
  of the modified design. In fact, the Railways themselves
  decided to float a fresh Tender for the additional work at an
  estimated cost of Rs. 24.50 crore 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        D
  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 Respondent Company wrote to the Petitioners on 12th April,
                                                                     E
  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.                  F

     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       G
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 a fresh
Tender No.189 of 2008 for the additional work of the extended        H
    414      SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A   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
8 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 Rs. 24.50
  crores and that two offers were received, which were for Rs.
  34, 11, 16,279.39p. and Rs. 35,89,93,215.66p. respectively.
C 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 Re~pondent had all along
  expressed its unwillingness to take up the extended work and
D 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.

E      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
F 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
G occasioned on account of 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
H
UNION OF INDIA & ORS. v. TANTIA CONSTRUCTION 415
        PVT. LTD. [ALTAMAS KABIR, J.]
and was rightly set aside by the learned Single Judge of the          A
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         B
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 covered under Tender No.76 of 06-07, but a case              C
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        D
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             E
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 Court that notwithstanding the provisions            F
relating to the Arbitration Clause contained in the agreement,
the High Court was fully within its competence to entertain and
dispos~·of the Writ Petition filed on behalf of the Respondent
Company.

     28. We, therefore, see no reason to interfere with the views     G
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.

R.P.                        Special Leave Petition dismissed.         H   -·