JUDGMENT : 1. The petitioner-Prime Contractors in consortium with DSSG Infra Private Limited (‘Petitioner-Agency’ for short), through the medium of this writ petition under Article 226 of the Constitution of India has prayed for the following reliefs/writs: “a. Issue a writ, order or direction in the nature of certiorari, thereby quashing impugned letters dated 04.08.2023 bearing No.NHAI/13013/547/CO/23-24/EQ/Mada & Nashri FP/57405/1065 issued by Respondent No.2 and letter dated 04.08.2023 bearing No.230291/1/2022/PIU-Udp/Toll/1257 issued by respondent No.4 and the communication dated 22.08.2023 as issued to the Respondent No.5 by Respondent No.3 for encashment of the bank guarantee dated 23.02.2023 bearing no.034GT0223540002 of Rs.2,35,05,000/- submitted by the Petitioner in pursuance to the Contract Agreement dated 27.02.2023 till force majeure claims of the Petitioner is decided by Respondent No.3; b. Issue a writ order, or direction in the nature of mandamus, directing the Respondents to expeditiously adjudicate the Force Majeure claims of the petitioner under the correct provisions of the Contract Agreement into Clause 25(b)(ii) of the Contract Agreement dated 27.02.2023 within a period of 07 days; c. Issue a writ of mandamus or any other appropriate writ, order or direction thereby directing Respondents to forthwith withdraw the direction to the Petitioner to replenish the cash performance security in relation to the Contract Agreement dated 27.02.2023 for Mada & Nashri Fee Plaza; d. Issue of mandamus or any other appropriate writ, order or direction thereby restraining the Respondents from invoking the cash performance security and bank guarantee provided by Petitioner in pursuance to the Contract Agreement for Mada Nashri Fee Plaza drawn on HDFC Bank bearing No.034GT02230540002 of Rs.2,35,05,000/- till force majeure claims of the petitioner is decided by respondent no.3; e. Issue a writ of mandamus or any other appropriate writ, order or direction thereby declaring that the force majeure period shall continue with respect to the Mada Fee Plaza and Nashri Fee Plaza, till the average user free collection reaches 100% of the agreed remittance; and f. Issue a writ order or direction in the nature of certiorari, thereby quashing impugned letter dated 25.07.2023 bearing no.NHAI/RO-Jammu/2010/11035/C-N/126 issued by the Respondent No.3 and the fresh tender bearing reference ID NHAI/13013/547/CO/23/24/EQ/Mada-Nashri FP dated 23.08.2023 as floated by the Respondents from issuing fresh tender for the appointment of user fee collection for the Mada Fee Plaza and Nashri Fee Plaza, for the period overlapping the petitioner contract period.” 2. Shorn of minutes details, the facts of the case, which goaded the petitioner-Agency to file this writ petition are that the petitioner-Agency, who is a consortium engaged and involved in several toll plaza collection contracts with the respondent-National Highways Authority of India (for short ‘the respondent-Authority’) in a successful bidding, got the contract awarded in its favour vide Contract Agreement dated 27.02.2023, for user fee collection of the Mada Fee Plaza & Nashri Fee Plaza situate on National Highway-44; that as per the directions of the respondent-Authority, the petitioner-Agency submitted a bank guarantee of Rs.2,35,05,000/- which was equivalent to 15 days remittance (Rs.15,66,999/- per day) with NHAI along with equivalent Cash Performance Security of Rs.2,35,05,000/- before signing of the Contract Agreement; that due to unavoidable and unforeseen circumstances, the contractor delayed the payment of remittances which entailed deduction of an equivalent amount from the cash performance security, along with penal interest, as per the contract agreement and petitioner-Agency was asked to replenish the same; that due to delayed remittances, the respondent-Authority also diverted the FASTag collection to its account; that due to various advisories and office orders from the administration and also due to inclement weather, traffic of all heavy vehicles including vehicles containing highly inflammable substances had to be diverted to alternate routes which resulted into drastic decline in revenue collection and traffic movement; that the petitioner-Agency informed the respondent-Authority about the administrative advisories and orders and also of decline in revenue collection and invoked Force Majeure Claim along with interim relief but all the requests/pleadings fell on deaf ears; that on 04.08.2023, the respondent-Authority terminated the contract of the petitioner-Agency, directed it to pay Rs.2,26,70,799/- to replenish the cash performance security, and also debarred the petitioner-agency for one year, in participating in the future bids, allegedly without giving any opportunity of being heard. 3. Aggrieved of the aforesaid acts of the respondent-Authority and also no decision on the claim of force majeure laid by the petitioner-Agency, compelled the Agency to approach this court by way of filing the instant writ petition. This court vide order dated 04.09.2023, while issuing notice to the respondents, had directed the parties to maintain status quo with regard to Toll Plaza, subject matter of the agreement. 4. This court vide order dated 04.09.2023, while issuing notice to the respondents, had directed the parties to maintain status quo with regard to Toll Plaza, subject matter of the agreement. 4. Pursuant to notice, the respondent-Authority has filed its objections on 11.09.2023, wherein it is, inter alia, averred that this court lacks jurisdiction to deal with this petition and the courts at Delhi have exclusive jurisdiction over all the disputes arising between the parties in terms of Contract Agreement; that the petitioner-Agency has managed to obtain interim relief on 04.09.2023 by projecting false legal and factual position; that the present writ petition raises disputed questions of facts, as such, is required to be dismissed; that the impugned letters have been issued within the four corners of law; that the petitioner-Agency from the very beginning started committing defaults in depositing the agreed weekly remittances in time, as per the agreement, as a result of which, the Agency was informed, time and again, to deposit the due remittances including penal interest. 5. 5. It is further pleaded that the Agency was also informed about the NHAI Zero Tolerance Policy, and Clause 19(i) of the Contract Agreement which provides for levy of penalty @ 0.2% per day for delay in weekly remittances, and the Agency would have to pay the dues along with penalty within 3 days of the specified day, failing which the same would be adjusted from the Cash Performance Security by Project Director and simultaneously the Project Director shall route the ETC Collection directly to NHAI Toll Account till clearance of dues; that the cash performance security shall be replenished by the Agency within next 7 days from the date of such recovery and in case the Agency fails to replenish the cash performance security and clear the dues in next 7 days, the contract is liable to be terminated; that it is averred in the objections that the Force Majeure Claim submitted by the Agency on 04.08.2023 vide letter dated 03.08.2023 was approved for the sum amounting to Rs.46,88,466/- and the Agency vide letter dated 08.09.2023 was directed to replenish the overall dues amounting to Rs.2,98,39,425/- but only part payment towards remittances in violation of the terms and conditions of the contract agreement was deposited; that this attitude of the Agency has compelled the Authority to issue fresh tender, barring the contractor to participate in future bidding process and also entailed cancellation of his tender. 6. Learned senior counsel for the petitioner-Agency argued that the Agency had been allotted the contract on 27.02.2023 valid up to 26.02.2024, for a period of one year for the collection of fee of Mada/Nashri Fee Plaza by respondent No.4 in response to a tender floated by the respondent-Authority on 13.01.2023, wherein the petitioner-Agency being highest bidder, with daily remittance of Rs. 15,66,999/- was allotted the contract; that acting upon the directions from the respondents a bank guarantee of Rs. 2,35,05,000/- equivalent to 15 days remittances was deposited with respondent-Authority along with a Cash Performance Security of equivalent amount, thus, cumulative guarantee of Rs. 4,70,10,000/- was furnished by the Agency before signing of the contract agreement on 27.02.2023 and the petitioner-Agency was handed over the Mada Fee Plaza -Nashri Fee Plaza on 28.02.2023, in accordance with the terms of the contract agreement. 4,70,10,000/- was furnished by the Agency before signing of the contract agreement on 27.02.2023 and the petitioner-Agency was handed over the Mada Fee Plaza -Nashri Fee Plaza on 28.02.2023, in accordance with the terms of the contract agreement. The respondent-Authority, however, due to delay in submission of agreed remittances not only diverted the FASTag amount as collected at Fee Plaza to their own account on 26.04.2023, which was more than 99% of the total revenue collected, also the amount was deducted from the cash performance security, imposed penal interest @ 0.02% per day upon petitioner-Agency and directed it to replenish the same. 7. Mr. Sethi, argued that the respondent no.4 through an internal letter, which was never shared with the petitioner-Agency started to take action against the petitioner-Agency on 27.04.2023; that on 16.05.2023, a show-cause notice was issued to the petitioner-Agency to file reply within three days which was responded to by the petitioner on 19.05.2023 and the cash performance security was replenished. However, on 12.06.2023, a final notice was issued by respondent-Authority informing the petitioner-Agency that there was a short fall of Rs.1,29,05,363/- and the petitioner was given three days to replenish the same failing which contract of the Agency was to be terminated besides being debarred from participating in future tenders. However, the petitioner-Agency on 14.07.2023 submitted a reply, seeking reconciling of statement of accounts, as whole of amount was credited directly to the account of the respondent-Authority and the petitioner was having no details of the FASTag collection and requested to grant seven working days time and till then, no coercive action was requested to be taken as sufficient security was with the respondent-Authority. The respondent no.4 on 21.06.2023 again issued a letter to the petitioner-Agency to replenish the cash performance security in the amount of Rs. 1,81,57,058/- which the petitioner replenished on 26.06.2023 and 27.06.2023 and despite replenishment of the Cash Performance Security, the FASTag collection was not rerouted to the account of the petitioner-Agency, as such, there was no cause of action, in lieu of notice dated 16.05.2023 and 12.06.2023. 8. He further argued that on 27.06.2023, Divisional Commissioner, Kashmir issued Notification directing the diversion of all heavy traffic including tankers carrying fuel, LPG vehicles, vehicles with more than ten tires, was diverted through Mughal Road, due to Shri Amar Nath Ji Yatra, which was informed to the respondents immediately. 8. He further argued that on 27.06.2023, Divisional Commissioner, Kashmir issued Notification directing the diversion of all heavy traffic including tankers carrying fuel, LPG vehicles, vehicles with more than ten tires, was diverted through Mughal Road, due to Shri Amar Nath Ji Yatra, which was informed to the respondents immediately. The petitioner-Agency on 30.06.2023 informed the respondents 3 and 4, invoking force majeure claim in terms of clause 25(c)(i) of the contract agreement dated 27.02.2023, based on diversion of traffic under the orders of Divisional Commissioner, Kashmir; that on 13.07.2023 and on 15.07.2023, the respondents were again informed with regard to severe decline in revenue collection due to the diversion of traffic and a request was made on 21.07.2023 to grant interim relief which was provided in the contract agreement and repeated reminders were issued including one on 26.07.2023 and further alleged that instead of granting interim relief, the respondent-Authority kept the petitioner-Agency forcing to submit the complete remittance amount, despite knowing the fact that due to diversion there was severe decline in revenue collection and the respondent-Authority who was under an obligation to respond within seven days regarding acceptance or rejection of the force majeure claim in terms of clause 25(c)(i)(2) of the contract agreement, did not decide the claim of the Agency. 9. Mr. Sethi, further argued that the respondent-Authority based on the notice dated 12.06.2023, which had been duly complied with by the petitioner-Agency, issued termination of the contract on 04.08.2023 under clause 35(4) of the agreement and that the respondent-Authority on 05.08.2023 without deciding the force majeure claims of the petitioner-Agency and despite sufficient guarantees, floated the new tender for the fee plaza, without mentioning the time period for which it had been floated; that the respondent-Authority was not legally competent to terminate the Agency of the petitioner as per the contract agreement based on a notice dated 12.06.2023 which had been duly complied with by the petitioner-Agency; that the respondent-Authority had failed to issue any show-cause notice thereafter, as such, the contract of the petitioner-Agency was terminated, without affording it an opportunity of being heard, against the principles of natural justice, as such, the impugned communication/NIT is liable to be quashed. 10. 10. Learned counsel for the respondents, at the very outset, argued that this writ petition is not maintainable before this court for the simple reason that the Authority and the Agency had agreed, in their contract agreement as provided under clause 27, that all disputes/differences except those matters as mentioned non arbitrable under clause 26, arising between the parties out of this contract, shall be settled by way of a conciliation under and in accordance with the provisions of the conciliation policy of Authority and the proceedings shall be held at New Delhi or at a place, as per the policy of the Authority, with further agreement in sub clause (f) of Clause 27 that the contract agreement shall be governed and construed in accordance with laws of India and the courts at New Delhi shall have the exclusive jurisdiction over all disputes arising under, pursuant to/or in connection with the contract agreement; that the disputes raised by the petitioner-Agency against the respondent-Authority can be decided either by way of invoking the arbitration clause of the contract agreement or to be decided by the courts at Delhi, as provided clearly under Clause 27 of the contract agreement and in all fairness, this court cannot exercise any jurisdiction in view of clause 27 of the contract agreement reached between the parties. He has relied upon the law laid down in the judgment cited as Kusum Ingots & Alloys Ltd. v. Union of India & Anr, reported as (2004) 6 SCC 254 ; Maharashtra Chess Association v. Union of India & Ors, reported as (2020) 13 SCC 285 and Union of India & Ors. V. Puna Hinda, reported as (2021) 10 SCC 690 . 11. Mr. V. Puna Hinda, reported as (2021) 10 SCC 690 . 11. Mr. Gandotra, further argued that this court cannot ignore the arbitration clause in the contract agreement and the remedy of civil suit in absence of the arbitration clause, particularly when the dispute is of commercial nature and the commercial court can deal with the matter and there being an alternate remedy this court cannot exercise its writ jurisdiction which is discretionary and based on equity as the petitioner-Agency has been working against the express terms and conditions of the contract; that the petitioner-Agency from the very beginning started committing defaults in depositing the agreed weekly remittances in time, as per the agreement, as a result of which it was informed on 05.04.2023 that the total shortfall in deposit of remittances including penal interest amounting to Rs. 77,37,761/- was due up to 28.03.2023; that zero tolerance policy of the respondent-Authority was also conveyed to the petitioner-Agency, as per the clause 19(i) of the contract agreement, that again on 18.04.2023, the petitioner-Agency was informed that total shortfall including penal interest amounted to Rs.1,20,16,274/- up to 11.04.2023, as the petitioner-Agency had not been depositing the agreed weekly remittances in terms of the contract agreement; that Clause 19(i) of the contract agreement provides the consequences for the failure to deposit the agreed amount of any instalment under the contract and to pay the dues along with penalty within three days of the specified day failing which same shall be adjusted from the Cash Performance Security and that the Project Director shall route the ETC collection directly to the Authority Toll Account, till clearance of dues; with a further condition that the Cash Performance Security shall be replenished by the Agency within next seven days from the date of such recovery and in case the Agency fails to replenish the purposed security and clear the dues in next seven days, the contract is liable to be terminated. 12. 12. He further argued that the petitioner-Agency was also directed to pay weekly remittances as single amount and not in parts; that the respondent-Authority ultimately made a request to the concerned Authority routing the ETC collection directly to Authority Toll Account forthwith, as the dues as per the delayed remittances as intimated as FARO was Rs.2.33 crore and interest thereon on delayed remittances; that on 27.04.2023, the respondent no.3 sent a written communication to respondent no.2 with a request that the Authority HQtr, may take action, for calling fresh tenders for Mada/Nashri Fee Plazas and to expedite action on the Agency as per the contract agreement, after detailing of the defaults committed by the Agency; that an amount of Rs. 1,42,17,664/- was adjusted from Cash Performance Security and the petitioner-Agency was directed to replenish the Cash Performance Security, within next seven days, otherwise the action as per clause 19 would be initiated; that again on 08.05.2023, the Authority was intimated that the Agency had not replenished cash performance security and also made regular defaults, the recommendation was made for termination of the contract agreement and show cause notice was issued on 16.05.2023 to the petitioner-Agency, wherein it was intimated that the Agency had been defaulting in paying remittances for which PIU had issued several letters/emails/reminders for clearing the outstanding/replenish the cash performance security, however, the Agency had failed to comply with the same. 13. It is next argued that a show cause notice was issued for contravention of clause 19(i) of the contract agreement, as to why penalty as per the contract might not be imposed on Agency including debarment from participating in any Tender/RFQ for a period of one year without prejudice to any other rights of the Authority under bidding documents/contract agreement and/or applicable in law, asking the Agency to furnish the explanation within three days; that in response to the show-cause notice, unsatisfactory reply dated 19.05.2023 was submitted requesting that no coercive action be taken and such circumstances would not be repeated in the future; that on 25.05.2023, the Agency was again informed that it was on default as per the clause 19(i) of the contract agreement and was directed to replenish the Cash Performance Security amounting to Rs. 1,29,05,363/- immediately; in response to this letter on 01.06.2023, again it was requested that no coercive action be taken against the petitioner-Agency; that on 15.06.2023, reconciled statement was provided and it was intimated that the total shortfall remittance, cash collection including penal interest amounting to Rs.52,51,695/- was due up to 14.06.2023 including the FASTag collection since 26.04.2023; that besides that it was also informed that the petitioner had to replenish the adjusted cash performance security amounting to Rs.1,29,05,363/-. 14. Learned counsel for the respondent-Authority argued that in response to notice dated 30.06.2023 and 13.07.2023 with regard to force majeure claims, the petitioner-Agency had been informed vide letter dated 14.07.2023 and instructed to deposit the full remittance amount during the force majeure claim period, as per clause 25(b) of the contract agreement. He further argued that only a notice for force majeure claim had been received and no relevant information related to force majeure period had been shared, depicting the comparison of actual collection and traffic data for complete force majeure period, as per the contract agreement for decision on interim/final relief; that the petitioner-Agency was again directed to replenish the Cash Performance Security in terms of letter dated 25.07.2023 and to keep depositing the full remittances amount, irrespective of reasons for submitting force majeure claim as per the contract agreement, as on submission of complete force majeure claim interim/final relief as per clause 25(b) of the contract agreement, if admissible, could be acceded to at that instance. 15. Mr. Gandotra further argued that on 04.08.2023 due to continuous and repetitive defaults for the fulfillment of obligations on the part of the petitioner-Agency, for payment of agreed remittances under clause 19 of the contract agreement, the competent authority in terms of clause 35(4) of the contract agreement, for non compliance of clause 19(i) was terminated and the Agency was debarred from the list of prequalified bidders for a period of one year, as per clause 2.9 of the RFQ and vide another letter dated 04.08.2023, the petitioner-Agency was directed to replenish the Cash Performance Security amounting to Rs. 2,26,70,799/- immediately, followed by letter dated 30.08.2023 asking the Agency to replenish the cash performance security amounting to Rs. 2,35,50,000/- and the Bank Guarantee amounting to Rs. 2,26,70,799/- immediately, followed by letter dated 30.08.2023 asking the Agency to replenish the cash performance security amounting to Rs. 2,35,50,000/- and the Bank Guarantee amounting to Rs. 35,54,568/- immediately; further that the Agency was informed with regard to its force majeure claim that the same for interim/final relief for the period 04.07.2023 to 10.07.2023 was approved by the competent authority for the sum amounting to Rs. 46,88,466/-. 16. He has further argued that the Agency had to keep remitting to the Authority full remittances during the intervening period of serving of notice for force majeure claim till the decision of the Authority in this regard, which shall be given within seven days/thirty days and submitted that the petitioner Agency has failed to pay remittances on weekly basis as agreed by the contract agreement and also failed to replenish the amount deducted/adjusted from the Cash Performance Security, therefore, the respondent-Authority was well within its right to terminate the contract in terms of clause 35 of the contract agreement, as such, the respondent-Authority, in terminating the contract of the petitioner- Agency had not committed any illegality and was also well within its right to issue fresh tender for fresh allotment of the Toll fee plaza at Mada/Nashri on NH-44. It was finally prayed that the petition be dismissed primarily being non maintainable for want of jurisdiction, in view of contract agreement and also on merits. 17. Heard, perused and considered. 18. So far as the question of maintainability of the writ petition is concerned, it has to be addressed at first instance. Learned counsel for the respondent, who has raised the issue of non maintainability has relied upon the judgments, in Kulja Industries Ltd. V. Chief General Manager, Western Telecom Project Bharat Sanchar Nigam Limited & Ors. reported in (2014) 14 SCC 731 , wherein it has been held that the power to black-list a contractor is inherent in the party allotting the contract; in Gorkha Security Services v. Govt. (NCT of Delhi) & Ors, reported in (2014) 9 SCC 105 , that there is no dispute about the requirement of serving show-cause notice and added that once the show-cause notice is given and opportunity to reply to the show-cause notice is afforded, it is not even necessary to give an oral hearing; Union of India & Ors. (NCT of Delhi) & Ors, reported in (2014) 9 SCC 105 , that there is no dispute about the requirement of serving show-cause notice and added that once the show-cause notice is given and opportunity to reply to the show-cause notice is afforded, it is not even necessary to give an oral hearing; Union of India & Ors. v. Puna Hinda, reported in (2021) 10 SCC 690 wherein it has been held that in a contractual matter dispute as to amount payable to tenderer is a disputed question of fact and the same can be adjudicated only by agreed forum i.e. arbitration and not by writ court. Besides, the judgment titled Maharashtra Chess Association v. Union of India & Ors reported in (2020) 13 SCC 285 , which has also been relied upon by the opposite side, to draw the attention of this court that entertainability of writ petition is discretionary depending upon nature of threat to rule of law in view of alternate remedy. 19. Hon’ble Apex Court in ‘Harbanslal Sahnia v. Indian Oil Corporation Limited’ reported in (2003) 2 SCC 107 , in Para 7 of the judgment held as: “7. So far as the view taken by the High Court that the remedy by way of recourse to arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Ors., (1998) 8 SCC 1 1. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. The present case attracts applicability of first two contingencies. Moreover, as noted, the petitioners' dealership, which is their bread and butter came to be terminated for an irrelevant and non-existent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings.” 20. In the case of Union of India & Ors. v. Tantia Construction Pvt. Ltd. reported in (2011) 5 SCC 697 , the Apex Court in paras 18 and 27 held as under: “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. 19-26. xxxxxxxxx 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 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”. 21. In Civil Appeal No.317/2021 (arising out of SLP(C) No.9019/2019) titled Unitech Limited & Ors. 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”. 21. In Civil Appeal No.317/2021 (arising out of SLP(C) No.9019/2019) titled Unitech Limited & Ors. v. Telangana State Industrial Infrastructure Corporation (TSIIC) & Ors, the Hon’ble Apex Court has held in paragraphs 32 and 33 as under: “32. Much of the ground which was sought to be canvassed in the course of the pleadings is now subsumed in the submissions which have been urged before this Court on behalf of the State of Telangana and TSIIC. As we have noted earlier, during the course of the hearing, learned Senior Counsel appearing on behalf of the State of Telangana and TSIIC informed the Court that the entitlement of Unitech to seek a refund is not questioned nor is the availability of the land for carrying out the project being placed in issue. Learned Senior Counsel also did not agitate the ground that a remedy for the recovery of moneys arising out a contractual matter cannot be availed of under Article 226 of the Constitution. However, to clear the ground, it is necessary to postulate that recourse to the jurisdiction under Article 226 of the Constitution is not excluded altogether in a contractual matter. A public law remedy is available for enforcing legal rights subject to well-settled parameters. 33 A two judge Bench of this Court in ABL International Ltd. v. Export Credit Guarantee Corporation of India, reported in (2004) 3 SCC 553 analyzed a long line of precedent of this Court to conclude that writs under Article 226 are maintainable for asserting contractual rights against the State, or its instrumentalities, as defined under Article 12 of the Indian Constitution. Speaking through Justice N Santosh Hegde, the Court held: “27. …the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable.” This exposition has been followed by this Court, and has been adopted by three judge Bench decisions of this Court in State of UP v. Sudhir Kumar, 2020 SCC online SC 847; and in Civil Appeal No.1600/2022 (Supreme Court of India) Popatrao Vynkatrao Patil v. State of Maharashtra. The decision in ABL International, cautions that the plenary power under Article 226 must be used with circumspection when other remedies have been provided by the contract. But as a statement of principle, the jurisdiction under Article 226 is not excluded in contractual matters. Article 23.1 of the Development Agreement in the present case mandates the parties to resolve their disputes through an arbitration. However, the presence of an arbitration clause within a contract between a state instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226.11 If the state instrumentality violates its constitutional mandate under Article 14 to act fairly and reasonably, relief under the plenary powers of the Article 226 of the Constitution would lie. This principle was recognized in ABL International: “28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [ (1998) 8 SCC 1 ]. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Registrar of Trade Marks [ (1998) 8 SCC 1 ]. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” (emphasis supplied) Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked. The jurisdiction under Article 226 was rightly invoked by the Single Judge and the Division Bench of the Andhra Pradesh in this case, when the foundational representation of the contract has failed. TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the refund of its principal.” 22. TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the refund of its principal.” 22. It is an admitted case that as per the contract agreement, it is provided that in view of any dispute between the parties, besides the decision by an arbitration, the courts at Delhi shall have the jurisdiction in the matter. However, in view of relevant clauses of the agreement, it has to be seen firstly as to whether the matter can be decided by way of arbitration. Since termination of contract is also subject matter of this writ petition, the termination of the contract is provided under clause 35 of the contract agreement, which as per Sub Clause (4) provides that the Authority shall be entitled to terminate this contract for any type of non compliances under provisions of this contract if not rectified within a given timeframe, however, at the foot of this Clause 35, it provided, ‘this Clause is non arbitrable as per Clause 26 of the Agreement’, which means that the termination of the contract on the initiatives of either of the parties to the Contract and, particularly, by the Authority as per Sub Clause (4) of Clause 35 on non compliance of the provisions of the Contract is non arbitrable, therefore, the question of alternate efficacious remedy through arbitration cannot be gone into, particularly, in view of the fact that the contract in favour of the Petitioner-Agency has been terminated by the Respondent-Authority. Otherwise also, in view of law elaborately referred hereinabove as enunciated by Hon’ble Apex Court, it has been held that in case, one of the contractual parties being State or instrumentalities of the State can be subjected to writ jurisdiction, in public law. The Respondent Authority being part of the State, certainly can be subjected to writ jurisdiction of this court, which has territorial jurisdiction over the subject matter of the writ petition i.e. Plaza on NH-44. 23. Second limb of the argument is that, even if the dispute may not be arbitrable between the parties, in view of the contractual condition that the disputes can be resorted through Delhi Courts only. 23. Second limb of the argument is that, even if the dispute may not be arbitrable between the parties, in view of the contractual condition that the disputes can be resorted through Delhi Courts only. The citations referred and relied upon by the learned counsel for the respondent-Authority, in support of his argument, are distinguishable. The disputes between the parties are not limited to the disputed questions of payments and performance of contract but to the cancellation of the contract and the decision to retender the contract, which can be raised in a writ jurisdiction. I am fortified to take this view, in view of the law laid down by the Apex Court in a recent and authoritative judgment passed in Unitech’s case (Civil Appeal No.317/2021), wherein, it has been held that it is well settled that the jurisdiction under Article 226 of the Constitution of India, cannot be ousted only on the basis that the dispute pertains to the contractual arena, for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly, merely because in their business dealings, they have entered into the realm of contract. Therefore, the petitioner-Agency, in the considered opinion of this court, has rightly prayed to invoke writ jurisdiction in terms of Article 226 of the Constitution of India, when the foundational representation of the contract, itself has failed. For the aforestated reasons, the plea of the respondent-Authority with regard to non-maintainability of the writ petition, on both the counts, alternate efficacious remedy of arbitration as well as Delhi Civil/Commercial Courts’ jurisdiction under the contractual obligations, is rejected. 24. Now coming to the merits of the case, in execution of contract between the parties, it had been decided that the petitioner-Agency shall pay a daily remittance of Rs. 15,66,999/- and a cumulative guarantee of Rs.4,70,10,000/- had been taken in the shape of Cash Performance Security and Bank Guarantee in equal proportion. It is an admitted fact that the petitioner-Agency had defaulted on certain occasions and was issued notices by the respondent-Authority for not committing defaults in payment of weekly remittances. 15,66,999/- and a cumulative guarantee of Rs.4,70,10,000/- had been taken in the shape of Cash Performance Security and Bank Guarantee in equal proportion. It is an admitted fact that the petitioner-Agency had defaulted on certain occasions and was issued notices by the respondent-Authority for not committing defaults in payment of weekly remittances. The petitioner-Agency, invoking clause force majeure laid claims for the reason that there was severe reduction of traffic movement on NH-44, as in view of the ongoing Shri Amar Nath Ji Yatra, some of the traffic was diverted by the Divisional Commissioner, Kashmir to Mughal Road, so as to ease traffic congestion on national highway. This force majeure claim was intimated to the respondent-Authority, which though under an obligation to take interim action within seven days did not do so and the respondent-Authority asked the petitioner Agency to give further documentation with regard to its claim of the reduction of vehicular traffic on NH-44, whereas the stand of the petitioner-Agency was that the final claim can be laid only when the traffic is resumed fully on the NH-44, after culmination of Shri Amar Nath Ji Yatra on 31.07.2023. The respondent-Authority, in view of the defaults in remittances took two decisions, firstly, that it diverted all FASTag (ETC) payments directly to the Authority’s Toll Account No., instead of routing through the petitioner-Agency and secondly also took steps to credit/adjust the outstanding amount, from the Cash Performance Security furnished by the petitioner-Agency to the respondent-Authority, the partial claim for one week of the force majeure lodged by the petitioner-Agency was decided by the respondent-Authority, after filing of this petition, therefore, the basis of termination of contract on default of remittances does not withstand when claim of force majeure is not decided. Force majeure claim had been laid by the petitioner-Agency on 30.06.2023. The notice for termination of contract in terms of clause 35 had been issued on 12.06.2023 which was replied seeking further time on 14.06.2023 and default amount of remittance raised vide notice dated 12.06.2023 had been deposited on 26.06.2023, therefore, as on 26.06.2023, there was no balance amount to be paid by the petitioner-Agency. 25. The notice for termination of contract in terms of clause 35 had been issued on 12.06.2023 which was replied seeking further time on 14.06.2023 and default amount of remittance raised vide notice dated 12.06.2023 had been deposited on 26.06.2023, therefore, as on 26.06.2023, there was no balance amount to be paid by the petitioner-Agency. 25. The respondent authority has not come clear as to what was the amount of remission either by FASTag or deduction from cash performance security, as whole of the amount raised in the notice had been paid by the petitioner-Agency, therefore, there was only a question of payment of replenishment for an amount which had been deducted from the Cash Performance Security which is generally a buffer amount to be retained by the respondent-Authority for meeting out an exigency of making up of the short fall of remittances. The respondent-Authority had not issued any separate notice for replenishment. Since the respondent-Authority had not decided the force majeure claim of the petitioner-Agency which was for a period of two months, during Shri Amar Nath Ji Yatra,, it cannot be said as to whether the outstanding amount of remittances or of replenishment, could be more than the claim laid by the petitioner-Agency. 26. It was incumbent upon the respondent authority to decide the force majeure claim laid by the petitioner Agency before the termination of the contract. It is an admitted fact that this force majeure claim has been decided for a partial claim after the termination was decided. 27. Learned counsel for the respondent-Authority, has stated at the Bar that the petitioner Agency had laid force majeure claim in detail on 04.08.2023 after 4.00 pm, when its contract was already terminated on the same day, on account of breach in remittances as well as the replenishment and the force majeure claim was settled on 05.09.2023 during the pendency of this writ petition. The force majeure claim not being decided before the termination and asking for replenishment after the termination of the contract is irrelevant now, the balance amount raised by the respondent-Authority on 21.06.2023, for an amount of Rs. 1.81 crore had been remitted on 26.06.2023 and 27.06.2023 and thereafter, there was no outstanding against the petitioner-Agency and the replenishment after the termination of the contract was irrelevant as it is a security during subsistence of the Contract. 1.81 crore had been remitted on 26.06.2023 and 27.06.2023 and thereafter, there was no outstanding against the petitioner-Agency and the replenishment after the termination of the contract was irrelevant as it is a security during subsistence of the Contract. The termination of the contract has been based on a notice dated 12.06.2023 which stood complied with on 26th & 27th of June 2023 by making good the payments of the outstanding amounts, therefore, after 12.06.2023, no further notice was issued to the petitioner Agency for termination of the contract. In absence of any notice and any deeming clause in the contract, the cancellation of the contract cannot be termed to be legal, in view of denial of right to be heard before taking decision, against the principles of natural justice of ‘audi alteram partem’. 28. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact situation to another. All that has to be seen is that no adverse civil consequences are allowed to ensure before one is put on notice that the consequence would follow if he would not take care of lapse, because of which the action as made known is contemplated. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case. The show-cause notice must contain the exact nature of the measures that are proposed to be taken, failing which, the order passed would be violative of the principles of natural justice and shall be rendered infructuous. Serving of show-cause notice is a postulate of law to make the noticee understand the precise case set-up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults, he has committed, so that he gets an opportunity to rebut the same. Another requirement is the nature of action, which is proposed to be taken for such a breach, that should also be stated so that the noticee is able to point out that proposed action is not warranted in the given case, even if, the defaults/breaches complained of, are not satisfactorily explained. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is the harshest possible action. 29. When it comes to blacklisting, this requirement becomes all the more imperative, having regard to the fact that it is the harshest possible action. 29. In the case on hand, the Respondent-Agency has not only raised the outstanding remittances and the replenishment amounts but terminated the contract as well as debarred the Petitioner-Agency from participating in any such tender for a period of one year. Essentially, the dispute between the parties arose on failure on the part of the Petitioner-Agency to regularly make weekly remittances as per the Contract Agreement, to which it took a plea that in view of diversion of traffic from NH-44 to Mughal Road in view of Shri Amar Nath Ji Yatra by the Divisional Commissioner, Kashmir under his written orders, the flow of traffic was claimed by the petitioner-Agency to have been considerably reduced and therefore, the recovery of Toll Plaza fee was not up to the mark. The Respondent-Authority on these failures in remittances took a drastic step, though in terms of the Contract Agreement, that the FASTag (ETC) collection was diverted directly to the Toll Plaza Account of the respondent-Authority instead of being routed through the Petitioner-Agency. The Petitioner-Agency had laid a claim of force majeure on this development, in view of Clause (vii) of Clause 25 of the Contract Agreement, suspension of traffic on the said section of the National Highway or any part thereof, exceeding 15 days at a stretch, is one of the conditions. It is an admitted fact that force majeure claim of the Petitioner-Agency was not decided within 7/30 days interim or final as required under the Contract Agreement, presumably by the Respondent-Authority, on not furnishing the complete data by the Petitioner-Agency in this behalf, which necessitated the Respondent-Authority to deduct the outstanding amount towards the Petitioner-Agency from his Cash Performance Security but the force majeure claim despite communications dated 30.06.2023, 13.07.2023, 15.07.2023, 21.07.2023 and 26.07.2023 was not finalized and after termination of the Contract and filing of this petition by the Petitioner-Agency the Force Majeure Claim for a period of one week was decided on 04.09.2023 after one month of the termination of the contract. The Respondent-Authority in a period w.e.f 26.04.2023 to 19.10.2023, is also stated to have recovered an amount of Rs. 23,87,09,125/- from the remittances by way of FASTag collection directly to its Toll Plaza Account from the Toll Plazas in question. 30. The Respondent-Authority in a period w.e.f 26.04.2023 to 19.10.2023, is also stated to have recovered an amount of Rs. 23,87,09,125/- from the remittances by way of FASTag collection directly to its Toll Plaza Account from the Toll Plazas in question. 30. Having regard to the aforestated legal and factual aspects of the case, there is substance in the writ petition, which is held to be maintainable before this court and the action taken by the Respondent-Authority for issuing various communications and ultimately terminating the contract agreement between the parties and debarring/black-listing the Petitioner-Agency from participating in any such contract for a period of one year are illegal and arbitrary, having been passed without issuance of a proper show-cause notice of being heard to the Petitioner-Agency, as the Petitioner-Agency had made payment of the outstanding amount as raised in the notice dated 12.06.2023, which has been made basis for passing the impugned orders, had been paid by the Petitioner-Agency on 26.06.2023 and 27.06.2023 and thereafter, there was neither any cause of action to the Respondent-Authority on this count nor a show-cause notice in contravention of the principles of nature justice of audi alteram partem is issued to the Petitioner-Agency. 31. Viewed thus, the impugned orders are, thus, not sustainable and are liable to be quashed. As a consequence, the impugned orders are quashed and the Respondent-Authority is restrained from issuing any fresh tender for the appointment of User Fee Collection for Mada Fee Plaza and Nashri Fee Plaza for the period overlapping the Petitioner’s contract period. The parties, in view of any contractual dispute, shall be at liberty to pursue claims against each other in terms of contractual obligations. 32. The writ petition is disposed of along with connected application(s). Parties shall bear their own costs.