UNION OF INDIA & ORS. versus TANTIA CONSTRUCTION PVT. LTD.

Citation: [2011] 5 S.C.R. 397 · Decided: 18-04-2011 · Supreme Court of India · Bench: ALTAMAS KABIR · Disposal: Dismissed
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Judgment (excerpt)

[2011] 5 S.C.R. 397 
UNION OF INDIA & ORS. 
v. 
TANTIA CONSTRUCTION PVT. LTD. 
(Special Leave Petition (C) No.18914 of 2010) 
APRIL 18, 2011 
[ALTAMAS KABIR AND CYRIAC JosePH, JJ.] 
CONTRACT: 
A 
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
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