Case: Union Of India  Vs. Tantia Construction Pvt.Ltd

n view ofd to the. However,es of theed forwhich theod of>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. 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, the Railwaysonce 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 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 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.

Reasoning:
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 theves floated 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. We cannot lose sight of the fact that while the initial cost of the Tender was., 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 withto the extendedportion 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 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 notto the extendedwork. 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 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.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 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.