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Gauhati High Court · body

2010 DIGILAW 813 (GAU)

G. M. Lanong v. Meghalaya State Electricity Board

2010-10-11

I.A.ANSARI

body2010
JUDGMENT Iqbal Ahmed Ansari, J. 1. Pursuant to a tender notice, dated 1.3.2006, floated by the respondent No. 2, namely, Chief Engineer (GT), Meghalaya State Electricity Board, Lumjingshai, Shillong, Meghalaya State Electricity Board (in short, 'MeSEB'), inviting sealed bids from reputed EHV line construction contractors/Joint Venture Firms/Consortium of two or more Firms as partners for the Construction of 132KV Double Circuit Transmission Line on 220KV Towers from Myntdu Leshka Stage IHEP to the 132 KV sub station at Khliehriat, Jaintia Hills, Meghalaya, India, the petitioner, a contractor carrying out the contract works of high voltage electricity transmission lines, as a joint venture partner, submitted its bids for allotment of the work. The respondent No. 4,which is a private limited company incorporated under the Companies Act, 1956, also participated in the tender process, the tender process consisting of two-bid system, namely, techno-commercial bid and financial bid. No other person participated in the said tender process seeking allotment of the contract works. The petitioner claims that having learnt that the financial bid of the respondent No. 4 (who is hereinafter referred to as 'the private respondent) had been opened, on 13.11.2006, the petitioner sent a letter, on 15.11.2006, addressed to the respondent No. 2, namely, chief Engineer, MeSEB, stating to the effect, inter alia, that the petitioner had come to know that the financial bid of the private respondent had been opened on 13.11.2006, but the petitioner's financial bid had not been opened, though the petitioner's bid fulfilled all the technical criteria of eligibility. The petitioner further requested the respondent No. 2 that the petitioner's financial bid may be opened and that no decision may be taken on the offer of the private respondent alone. Thereafter, the petitioner received a letter, dated 01.12.2006, from respondent No. 3, namely, Superintending Engineer (G.T.), MeSEB, informing the petitioner that the techno-commercial bid of the petitioner was found to have not fulfilled the criteria for consideration of the price bid. The petitioner was, however, requested to submit, for placement in the next meeting of the Tender Evaluation Committee, certain papers/documents for consideration of the petitioner's technical bid, the documents, so sought for, being: (i) Annual Turnover for last 5 (five) years, Clause No. 3.3.1(A) of GCC Application form 2 A/2. (ii) Specific Technical Criteria: Clause No. 3.3.1(C) Successful Commissioning Certificate that have been approved and issued by the respective project authorities. (ii) Specific Technical Criteria: Clause No. 3.3.1(C) Successful Commissioning Certificate that have been approved and issued by the respective project authorities. (iii) Particular Experience Record: Clause No. B181 of Price Bid amended vide corrigendum No. CE (GT)/2005/TT-10 A/44, dated 27.03.2006. (iv) Current contract Commitments: As per Application -4 and (v) Equipment Capabilities: Clause No. 3.4.2 of GCC-Application 5. 2. By its letter, dated 11.12.2006, the petitioner furnished all the requisite particulars as had been asked for by the letter, dated 01.12.2006. While so furnishing the requisite particulars by its letter, dated 01.12.2006, the petitioner also expressed its concern that the petitioner had been asked to provide certain materials after a lapse of about seven months since the date of opening of the techno-commercial bid, particularly, when the petitioner had not been given any information, during the said period of more then six months, about the fate of its tender, and reiterated its request for opening of its financial bid. Thereafter, respondent No. 3, namely, Superintending Engineer (GT), MeSEB, issued a letter, dated 23.03.2007, addressed to both the petitioner as well as the private respondent, informing them that due to unavoidable circumstances and in accordance with clause (10) of the General Conditions of Contract, the tender process had been cancelled and that price bid of both the tenders, i.e., the petitioner well as the private respondent, and the earnest money, deposited by each one of them, amounting to Rs. 6,00,000/- each, were being returned to them. 3. With the allegation that the respondent No. 1. having cancelled the said tender process, has issued work order for the same work to respondent No. 4 in order to make illegal gain and to deprive the petitioner of its right to secure the work, the petitioner instituted Title Suit No. 19(T) 2007 in the Court of the Assistant to the Deputy Commissioner, Shillong, with the prayer, inter alia, to declare the opening of the tender process as illegal, null and void with further declaration that the allotment of the work to the respondent No. 4 was void and illegal. In the said suit, the petitioner also filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure seeking for an order of injunction prohibiting and restraining the respondent No. 4 from carrying out the work of construction of 132 KV double circuit transmission line on 220 KV tower rom Myntdu Leshka Stage-1 HEP to the 132 KV Sub-station at Khichriat, Jaintia Hills, Meghalaya. This application gave rise to Misc. Case No. 46(T)/2007. By order, dated 30.05.2007, the learned trial Court restrained respondent No. 4 from carrying out the construction work of 132 KV double circuit transmission line on 220 KV tower from Myntdu-Leshka Stage I HEP to the 132 KV Sub-station at Khliehriat, Jaintia Hills, Meghalaya. 4. Aggrieved by the order, dated 30.05.2007, aforementioned, the private respondent preferred an appeal, which gave rise to FAO 2(T) of 2007, whereby the private respondent sought to get the order of injunction, dated 30.05.2007, set aside and vacated. It was contended by the private respondent, in the appeal, that the work, allotted to the private respondent, was different from the one, in respect whereof the said tender notice, dated 01.03.2006,had been floated and which had been, in course of time, cancelled. It was also contended in the appeal, by the private respondent, against the order of injunction, that since the work, which had been allotted to the private respondent, was a new work and the allotment of the new work was not under challenge, the question of granting injunction, restraining the private respondent from executing the newly allotted work, did not arise. 5. Having accepted the private respondent's contention that the work, allotted to the private respondent, was different from the one, which the tender process covered, the learned Additional Deputy Commissioner, Shillong, passed an order, on 26.07.2007, in FAO No. 2(T)/2007, setting aside the impugned injunction order, dated 30.05.2007, aforementioned. 6. The petitioner, then, challenged, by way of revision before this Court, the order, dated 26.07.2007, whereby the order of injunction, dated 30.05.2007, had been set aside. 6. The petitioner, then, challenged, by way of revision before this Court, the order, dated 26.07.2007, whereby the order of injunction, dated 30.05.2007, had been set aside. This revision gave rise to CR(P) No. 49(SH)/2007, which came to be dismissed on 21.09.2007, the reasons, assigned by the Court, for dismissing the revision being, in brief, thus: Though it had been contended by the petitioner, in the revision petition, that except the fact that the capacity of the towers had been changed, all other features of the contract work, awarded to the private respondent, had remained the same with that of the contract work, in respect whereof tender had been floated, yet the fact remains that the petitioner had not challenged the work order, dated 16.05.2007, whereby the new work, in question, had been allotted in favour of the private respondent and, hence, the work order, dated 16.05.2007, aforementioned, could not have been, and cannot be, interfered with by the Court by way of any order of injunction. In this regard, the High Court did express the opinion that it appears prima facie to be a case, where the State respondents had shown favour to the private respondent inasmuch as the tender process had been cancelled/withdrawn after processing the same for about one long year and that the order, canceling the earlier tender process, did not appeal to the Court. The Court also observed that MeSEB has adopted the backdrop policy to allot the contract to the private respondent without floating tender. Notwithstanding these observations, the Court further remarked that the impugned order cannot be interfered with since there is difference, though marginal, between the work order, which has been allotted to the private respondent, and the one, in respect whereof, tenders had been invited. 7. Faced with the situation, when the Court had expressed the view, though on an interlocutory application of injunction, that the work, which had been allotted to the private respondent, was different from the one, which had been covered by the tender process, wherein both the petitioner as well as the private respondent had participated, the petitioner has, now, approached this Court with the present application, made under Article 226 of the Constitution of India, seeking to get the allotment of the new contract work to the private respondent set aside and quashed. 8. 8. By filing the present writ petition, the petitioner has also sought for a writ, in the nature of mandamus, to be issued to the respondents directing them to float tender in respect of the new work, which had been allotted to the private respondent and which had become the subject matter of challenge in the civil suit, the grievance of the petitioner being, in brief, that the cancellation of the earlier tender process, as had been done, was illegal, arbitrary, mala fide and without any justifiable reason and that the allotment of the new contract work to the private respondent with marginal changes, as indicated above, had been done to favour the private respondent and such allotment, having been made without inviting tenders enabling thereby all interested eligible persons to participate in the selection process, is wholly arbitrary, illegal, mala fide and deserves to be set aside. 9. Resisting the present writ petition, the private respondent, at the very outset, challenges the very maintainability of the writ petition on the ground that the writ petition suffers from delay and laches on the part of the writ petitioner inasmuch as the work, in question stood allotted to the private respondent as far back as on 16.05.2007; whereas the writ petition has been filed on 26.11.2007, i.e., after five months of the issuance of the work order, the entire project is a time bound project, which is required to be completed within a period of twelve months, and, during the said period of five months from the date of allotment of the work order, substantial portion of the work had already been completed, which, in monetary term, as assessed on 28.11.2007, stood at Rs. 50.66 lakhs and that any interference by the Court with the allotment of the wok, at this belated stage, will inflict enormous financial hardship to the private respondent. 10. The private respondent has further contended that, by 25.11.2007, the private respondent had already incurred, under various head of accounts, an expenditure to the tune of Rs. 60,33,793/-. 50.66 lakhs and that any interference by the Court with the allotment of the wok, at this belated stage, will inflict enormous financial hardship to the private respondent. 10. The private respondent has further contended that, by 25.11.2007, the private respondent had already incurred, under various head of accounts, an expenditure to the tune of Rs. 60,33,793/-. As the filing of the writ petition suffers from delay and laches, on the part of the petitioner, and as, in the meanwhile, third-party rights, in favour of the private respondent, have already accrued, the allotment of the work and the implementation of the same by the private respondent may not be interfered with and the writ petition may be dismissed; more so, when the contention of the writ petitioner that the fact, that the petitioner was unaware of the fact, till 21.09.2007, that work order had been issued in favour of the private respondent, is factually incorrect inasmuch as the MeSEB filed written statement, on 22.06.2007, in TS No. 19(T) 2007, wherein the MeSEB categorically stated that the work order, dated 16.05.2007, was for construction of 132 KV Double Circuit Line on 132 KV Towers and not for construction of 132 KV Double Circuit Line on 220 KV Towers. 11. In support of the contention that the work, allotted to the private respondent, is different from the one, which had been abandoned after inviting tenders, wherein the petitioner had taken part, the private respondent further contends that that tender, which had been floated by the MeSEB, by tender notice, dated 01.03.2006, was for construction of 220 KV towers and drawing of transmission lines of 132 KV on the said 220 KV towers. Later on, the MeSEB, however, took a policy decision to construct towers of 132 KV instead of 220 KV and draw 132 KV transmission line on the 132 KV towers, and the nature, volume, technical specifications and the cost of construction of 220 KV towers is significantly different from construction of 132 KV towers. It is contended, on behalf of the private respondent, that a comparative analysis of technical data sheet of 220 KV towers and 132 KV towers would show that the height, weight, base area, foundation depth, pit size, excavation volume, concreting volume of the two types of towers are significantly different and, moreover, the tendered cost construction of the superstructures of 220 KV towers is about Rs. 3.59 Crore, whereas the tendered cost for construction of 132 KV towers is Rs. 2.23 Crore. 12. With regard to the MeSEB's decision to allot the work to the private respondent without calling for fresh tenders, the private respondent also contends that the work, allotted to the private respondent, is a part of the Mynduleskha Hydel Project, which is a mega hydel project of the State Government, and had to be commissioned by June, 2008 and, since calling for fresh tender was likely to take time in finalizing the same, it was decided by the MeSEB to allot the work to the private respondent. 13. Coupled with the above, the private respondent's contention, with regard to cancellation of the tender process and allotment of the new work, is that the private respondent is the only EHV contractor in Meghalaya, it is technically and financially competent, it has requisite experience in construction of transmission lines and had carried out similar projects, in the past, for the MeSEB and that the work allotted to the private respondent was as per the MeSEB's approved estimate rates for construction of 132 KV Transmission line. 14. Countering the writ petitioner's contention, that the allotment of the work, in question, in favour of the private respondent, is not transparent, the private respondent contends that the allegation of the writ petitioner is not tenable inasmuch as the work was allotted to the private respondent according to the policy decision of the MeSEB and as per the MeSEB's approved estimate and rate. 15. In support of its stand, that the allotment of work is not illegal, arbitrary and mala fide, as alleged by the writ petitioner, the private respondent reiterates that the work, in question, was a major public utility project for generation and transmission of power and that the work, in question, was required to be completed within time. Therefore, the MeSEB was well justified in taking into consideration the interest of the public and in allotting the work to the private respondent instead of going for a fresh tender process, which would have, obviously, required considerable time, and, as a consequence thereof, great harm would have been caused to the entire project. 16. Therefore, the MeSEB was well justified in taking into consideration the interest of the public and in allotting the work to the private respondent instead of going for a fresh tender process, which would have, obviously, required considerable time, and, as a consequence thereof, great harm would have been caused to the entire project. 16. With regard to the petitioner's claim that the petitioner was illegally and arbitrarily deprived of its right to receive the contract work, in question, the private respondent contends that contrary to the stand, so taken by the petitioner, the petitioner was not even capable of executing the work, in question, inasmuch as the petitioner had earlier participated in the tender process for construction of 132 KV Transmission line on 220 KV Towers, which was initiated by the MeSEB, vide Tender, dated 01.03.2006, but the petitioner did not fulfill the eligibility criteria in respect of its techno commercial bid. Subsequently, the MeSEB allowed the petitioner extended time of furnish the relevant documents, but the petitioner failed to furnish the same. According to the private respondent, the petitioner has, therefore, no locus standi to challenge the allotment of the work, in question, to the private respondent. 17. The private respondent contends that present writ petition is nothing but abuse of the process of the Court and has resulted in unnecessary multiplicity of proceedings and that the present writ petition is also barred by the principles of constructive res judicata and does not deserve consideration by the Court. 18. Opposing the writ petition, the respondent Nos. 1, 2, and 3, who are hereinafter, referred to as 'the State respondents', have contended, inter alia, thus: The tender, submitted by the petitioner, was not accepted due to the petitioner's lack of experience and on the ground that the petitioner had failed to satisfy the requisite eligibility criteria for allotment of the work, in question, and as such, the contract was allotted to the private respondent on being found that all the requisite qualifications or criteria, as prescribed in the tender from, were fulfilled by the private respondent and, hence, the private respondent deserved to be allotted the work. 19. 19. Trying to justify the allotment of the new work to the private respondent without initiating any tender process, the State respondents have assigned, broadly speaking, three reasons, in paragraph 9 of their affidavit-in-opposition, the reasons being, (i) that the project, of which the work, in question, is a part, was a time bound project, the project was required to be completed within time, going for inviting tenders for the work, finalization of the tenders and, thereafter, execution of the work by the successful tenderer would have taken much more time than the time within which the work was required to be completed. Had the work, in question, not been completed within time, the entire mega hydel project, namely, Myntdu-Leshka Hydel project, involving Rs. 600 Crore, would have been jeopardized, (ii) that the respondent No. 4 is the only EHV contractor in Meghalaya, registered with the MeSEB and having a long period of work experience in such project. The private respondent has been working with the MeSEB since 1988 on various 132 KV Lines and have successfully completed a number of such works; and (iii) that the work, in question, has been allotted to the respondent at the approved rate of the MeSEB. The final allotment of the contract work, pursuant to the tender process, which had been initiated by the notice, dated 01.03.2006, came to be abandoned due to change in the technical specifications of the contract work. The State respondents contend that any interference, at this stage, by the Court, with the allotment of the contract work would cause heavy loss and irreparable injury to the State respondents inasmuch as 60% of the works have already been completed. 20. The State respondents have reiterated that considering the fact that the evacuation system, which is also a part of the said mega hydel project, was required to be urgently completed before June, 2008, and initiation of any tender process would have taken, at least, six months to finalise the work and, thereafter, more than a year would have been required for completion of the project, it was decided by the MeSEB to allot the work to a registered contractor so that the work, in question, could be completed within a short time, i.e., by May, 2008. In this regard, having found that the private respondents is the only EAV contractor in Meghalaya, which is registered with MeSEB, and has been executing works with the MeSEB since 1988 on various 132 KV Lines and successfully completed a number of such types of works, the MeSEB allotted the work, in question, to the private respondent. It has also been contended by the State respondents that under the MeSEB Delegation of Financial Power, 2006, the MeSEB has the power to allot work to any contractor provided that the contractor fulfils all the requisite eligibility criteria and the policy decision of the Board is not open for judicial review. 21. I have heard Mr. S. Chakraborty, learned counsel for the petitioner, and Mr. K.S. Kynjing, learned Senior counsel, appearing on behalf of the State respondents. I have also heard Mr. H.S. Thankhiew, learned counsel for the private respondent. 22. While considering the present writ petition, what needs to be noted, at the very outset, is that a governmental contract, even if commercial in nature, involves, broadly speaking, four stages. The first stage relates to the floating of tenders by publishing notice inviting tenders. At this stage, the authority concerned is required to formulate the terms and conditions subject to which the tenders would be invited and also the terms and conditions of the contract, which, if entered into, govern the parties. These terms and conditions will obviously include all the eligibility criteria for a person to participate in the tender process. After the notice inviting tender is published and the tenders are received, the second stage of such a contract commences. This stage involves the process of taking of the decision to allot the contract or not to allot the contract at all and cancel the entire process. This stage would include selection of the person or the party to whom the contract shall be allotted. This stage ends with the allotment of the contract or with the decision not to allot the contract at all and cancel the entire tender process. The third stage of the contract essentially covers the stage of performance of the contract. This stage would include commencement of the performance of the allotted contract and would, normally, end with the completion of the allotted contract. The third stage of the contract essentially covers the stage of performance of the contract. This stage would include commencement of the performance of the allotted contract and would, normally, end with the completion of the allotted contract. During this stage, there may arise the question of breach of the contract, because of non-fulfillment of the terms and conditions of the contract by either party to the contract. The fourth stage of such a contract arises, when, on completion of his part of the contract, the contractor or supplier raises his demand for making payment of his bills. This fourth stage can, however, be divided into two categories. There may be a case, where the amount demanded is not disputed and yet the dues of the contractor are not paid compelling thereby the contractor to seek avenues for obtaining payment of his dues. In this fourth stage, there may, however, be a case, where the correctness of the demand for payment raised by the contractor is disputed, denied or challenged by the authority, who had allotted the contract. In such a case, too, the contractor may be driven to take recourse to such avenues as may be open to him, in law, for the purpose of enabling him to obtain his dues in terms of the demand that he may have made. 23. It may, now, be pointed out that at the first stage of a contract, which requires the authorities concerned to formulate the terms and conditions subject to which the tenders would be invited or the contract would be allotted, many factors are taken into account. The decision as to what terms shall be included in the tender is really a policy decision, for, it is the authority issuing the notice inviting tender, which is the best judge to determine as to what terms and conditions would be required for successful completion of the work or the project concerned. Thus, it is, primarily, for the authority issuing the NIT to decide what particular terms and conditions should be incorporated in the NIT. However, when the invitation to tender is floated, the second stage, which consists of the process of selection of the person for awarding the contract, commences and this process comes to an end, when a decision either awarding the contract or canceling the entire tender process is taken. However, when the invitation to tender is floated, the second stage, which consists of the process of selection of the person for awarding the contract, commences and this process comes to an end, when a decision either awarding the contract or canceling the entire tender process is taken. The decision to award the contract is not open to judicial review; but the decision making process, which leads to the ultimate decision, is according to the law laid down in TATA Cellular vs. Union of India, reported in (1994) 6 SCC 651 , open to judicial review. In Raunaq International Ltd. vs. IVR Construction Ltd. & Ors., reported in (1999) 1 SCC 492 , the Apex Court has made it clear that though the decision to award a contract is not open to judicial review, the decision making process, which leads to the ultimate decision, is, indeed, open to judicial review provided that there is an element of public interest involved in the case requiring a review by the Court of the administrative decision to allot the contract. 24. To put it differently, while settling the terms to be incorporated in the invitation to tender, the authorities concerned must have complete freedom, for, the terms of the tender are in the realm of the freedom to contract and it is for the authorities concerned to decide as to what would be the terms of the contract. But when the authorities concerned award the contract, the decision making process, leading to the decision to allot the contract, gets open to judicial review provided that there is an element of public interest involved in the case. 25. Considering the fact that the State respondents are the ones, who had initiated the tender process by publishing a tender notice, dated 01.03.2006, but abandoned the same, it is, primarily, for the state respondents to show as to what led to the cancellation of the earlier tender process and to the allotment of the new contract work to the private respondent, i.e., respondent No. 4. Apart from the fact that the State respondents contend that the petitioner's tender was not accepted for the lack of experience and for the petitioner's failure to satisfy the eligibility criteria for the contract work, which was covered by the tender notice, dated 1.3.2006, the State respondents, as already indicated above, have assigned six reasons for making allotment of the private respondent. The reasons are extracted below: "(a) Time constraint from April 2007 to May 2008 as the project is time bound project and that if NIT issued in May 2007 it would have taken at least 4 to 5 months to finalize the same and to execute agreement and, thereafter, the contract would take one year to complete the project. (b) If the Power Evacuation Lines are not complete by May 2008 the Myntdu-Leshka HEP would be put in jeopardy since the amount of Rs. 600 Crore project of national importance is to start generation of power from June 2008. (c) The present contract of Rs. 3 Crore would affect the entire Rs. 600 crore Myntdu-Leshka Project and the cost over-run as per the loss arising therefrom would be phenomenal and substantial. (d) The respondent No. 4 is the only EHV contractor in Meghalaya, registered with the MeSEB and having a long period of work experience with this type of project. (e) They have been worked since 1988 an various 132 KV Lines and have successfully completed a number of such work. (f) work has been allotted to the respondent at the approved rate taken by the MeSEB." 26. Before proceeding further, it may be noted that the averments, made by the State respondents, in paragraph 8 of the affidavit-in-opposition, as to why the petitioner was not found to be technically qualified, are, rather evasive in nature inasmuch as these respondents have not clearly stated as to why the petitioner was found to have been suffering from lack of experience. These respondents have also not clearly and specifically, stated, in their counter affidavit, as to what eligibility criteria, in respect of the tender notice, dated 01.03.2006, were not satisfied by the present petitioner. 27. These respondents have also not clearly and specifically, stated, in their counter affidavit, as to what eligibility criteria, in respect of the tender notice, dated 01.03.2006, were not satisfied by the present petitioner. 27. In the circumstances indicated above, the plea, which the State respondents have taken for not opening the financial bid of the petitioner and/or or abandoning and/or canceling the tender process (covered by the tender notice, dated 01.03.2006), must be held to be, and is hereby held to be, false. Consequently, the abandoning and/or canceling of the tender process, initiated by the tender notice, in the present case, cannot but be regarded to have been done for some undisclosed reasons. Since no justifiable, acceptable and valid reason(s) could be offered by the State respondents for abandoning or canceling the tender process, initiated by the tender notice, dated 01.03.2006, one cannot help, but hold, and do hold, that it was done with some ulterior motives. It may be noted, in this regard, that if there was a change in the policy, as regard the nature and magnitude of the contract work to be newly allotted, then, the eligibility criteria of the petitioner could not have been judged on the basis of the documents, submitted by the petitioner, pursuant to the earlier notice, dated 01.03.2006. Every tender process has to be decided on the basis of the materials produced by the tenderer and not on the basis of what he had submitted in the past. What, therefore, logically follows is that as against the new work allotted to the private respondent, no eligibility criteria were prescribed before the private respondent was selected and no one's eligibility, other than that of the private respondent, was ever considered. 28. If the failure of a tenderer, or omission on the part of a tenderer, to submit or produce document (s) in a previous process is taken to be a ground for considering him ineligible to participate in the subsequent tender process, this would amount to blacklisting a tenderer/contractor without giving him any opportunity of showing cause or having his say in the matter, which is impermissible in law inasmuch as no such act of blacklisting can be done without giving any opportunity of showing cause, or having a say, to the contractor, who is sought to be denied the opportunity of participation in a selection process by blacklisting him. If the act of abandoning and/or the act of cancellation of the tender process, which was initiated, on 01.03.2006, is the change in policy of the MeSEB in the sense that the MeSEB decided, as contended on its behalf, that instead of going for construction of 132 KV Double Circuit Line on 132 KV Towers, it found it technically feasible and viable to go for construction of 132 KV Double Circuit Line on 132 KV Towers, then, the fact that present petitioner had failed to satisfy the eligibility criteria in respect of the contract work, by the tender notice, dated 1.3.2006, was immaterial inasmuch as petitioner's said failure to satisfy the eligibility criteria, in the past, cannot be made a ground to deny to the right to participate in the selection process of the subsequent work. But no selection process was ever held in respect of the work, which has been allotted to the private respondent. In short, thus, apart from the fact that the State respondents have not furnished the material particulars, which could have enabled the Court to infer that the petitioner had really failed to satisfy the eligibility criteria in respect of the contact work covered by the tender notice, dated 01.03.2006, the factum of not inviting the petitioner and the persons, similarly situated, to participate in the subsequent allotment process of the contract work cannot be sustained. 29. Independent, therefore, of the fact the petitioner was not found qualified in the earlier tender process, one has to consider as to whether the State respondents have assigned any legally sustainable reason for not floating tender and/or inviting interested eligible parties to participate in the process of allotment of the work, which stands allotted to the private respondent. In this regard, it needs to be noted that the State respondents have brought nothing on record to show that the petitioner had ever been informed (before the petitioner issued the letter, dated 15.11.2006, complaining that the financial bid of the private respondent had been opened without any information having been given to the petitioner) that the petitioner's techno commercial bid had been rejected as the petitioner had failed to satisfy the eligibility criteria. Far from this, responding to the petitioner's letter, dated 15.11.2006, aforementioned, the State respondents sought for further particulars from the petitioners, as indicated by the State respondents' letter, dated 01.12.2006. Far from this, responding to the petitioner's letter, dated 15.11.2006, aforementioned, the State respondents sought for further particulars from the petitioners, as indicated by the State respondents' letter, dated 01.12.2006. There is no dispute that the petitioner submitted the particulars, as had been sought for by the State respondents by their letter, dated 01.12.2006, There is nothing on record to show as to why the papers/documents/particulars, which the petitioner had submitted, pursuant to the State respondents' letter, dated 01.12.2006, aforementioned, were not taken to have fulfilled the eligibility criteria of the petitioner. There is also no clear material on record to show as to when, by whom and at what stage, the decision was taken by the State respondents to abandon or cancel the earlier tender process and, as to when and why the decision was taken by the State respondents to change the nature and magnitude of the contract work. If time factor was the only constraint to publish any tender notice, in respect of the work, awarded to the private respondents, as has been contended by the State respondents, then, the State respondents ought to have disclosed, before this Court, the exact date on which the State respondents had changed their policy decision. The State respondents' pleadings are, however, completely vague and evasive in this regard. When the petitioner had submitted, on 11.12.2006, the documents in terms of the letter of the State respondents, the State respondents ought to have disclosed and make known to this Court as to why the change in the nature and magnitude of the contract work took place. 30. Apart from what have been discussed above, it needs to be pointed out that, if the petitioner was found technically not qualified, as had been indicated by the State respondents' letter, dated 01.12.2006, the State respondents ought to have assigned, but miserably failed to assign, the reasons for calling for further papers/particulars/documents from the petitioner their letter, dated 01.12.2006. The facts, therefore, as discernible from the pleadings of the parties and the materials on record, clearly give the indication that the respondents have not disclosed the entire facts before this Court. The State respondents' case, therefore, suffers from suppression of material facts. The facts, therefore, as discernible from the pleadings of the parties and the materials on record, clearly give the indication that the respondents have not disclosed the entire facts before this Court. The State respondents' case, therefore, suffers from suppression of material facts. If the subsequently changed contract work is the work of national importance and it is this work, which was a part of the said project, no reason has been assigned as to why this work was not, originally , advertised by the tender notice, dated 01.03.2006. 31. Thus, the State respondents, contrary to the their assertions, have failed to show as to why the subsequent work, which has been allotted to the private respondent and has been claimed by the State respondents to be the appropriate or real project, had not been advertised in the notice, dated 01.03.2006. The State respondents have also not been able to justify as to why they changed the nature and magnitude and/or dimension of the work from what it was 01.03.2006 to what it has become at the time of allotment of the new contract work to the private respondent and at what stage, under what circumstances and for what reason(s), such a charged project was found to be necessary or indispensable. 32. The State respondents have contended that the respondent No. 4 (i.e., the private respondent) is the only EHV contractor in Meghalaya, registered with the MeSEB, and has been working with them since 1988 on various 132 KV transmission lines. If the experience on 132 KV transmission line was the necessary experience required for the subsequent work, then, the tender notice, dated 01.03.2006, too, ought to have had invited tenders for construction of 132 KV transmission lines. 33. The fact, that MeSEB has allotted the work to the private respondent, at the approved rate is immaterial inasmuch as approved rate and estimate, in respect of any work, is always prepared, in advance, in order to determine the viability of the financial bid of a tender. For instance, if tenders are invited for construction of a High Court building, the person, floating the tender, must make an estimate as to how much the cost involved is. For instance, if tenders are invited for construction of a High Court building, the person, floating the tender, must make an estimate as to how much the cost involved is. Unless the cost is estimated, the question of inviting tenders for allotment of the work does not arise, because, the person, allotting the work, would not know as to whether cost factor, as indicated in a financial bid, is or is not reasonable, viable and workable. 34. The State respondents merely contend that the MeSEB decided to change the specifications of the work and this was a policy decision. Even if policy decision may not be open to judicial review, the fact of the matter remains that when the tender had already been floated for allotment of specified work, and the same was, subsequently, abandoned, the State respondents ought to have given satisfactory reasons, when questioned, before the Court, as to why they had abandoned the tender process, and, when no satisfactory and acceptable reason could be assigned by the State respondents, then, the abandonment or cancellation of the tender process must be held, and hereby held, to be motivated and arbitrary. 35. The only reason, as already indicated above, assigned by the State respondents for abandoning the tender process, was change in the policy. The State respondents have not assigned any reason, far less convincing, as to why they changed the policy at all; what was wrong with the earlier tender, which had been floated on 01.03.2006? The State respondents have also miserably failed to show as to why the work, which has come to be, eventually, awarded to the private respondents, was not the work in respect whereof the earlier tender had been floated and at what stage and on what consideration, it was decided that instead of pursuing the project, covered by the earlier notice, it is the latter project, which needs to be pursued. The cancellation of the tender process, without any convincing reason having been assigned therefor, cannot but be treated as arbitrary and denial of equal opportunity to the petitioner, who had been alleged to have been found to be unqualified in the earlier tender process, though no cogent reason could be assigned for disqualification of the petitioner in the earlier tender process too. 36. 36. Turning to the authorities, which the respondents have relied upon to sustain the allotment of work, in question, in favour of the private respondents, it needs to be noted that as indicated above, the respondents contend that the petitioner has no locus standi to challenge the allotment of contract in favour of the private respondent and in support of their contention that the petitioner has no locus standi as he is an unqualified tenderer, the respondents have placed reliance on Raunaq International vs. IVR Construction Ltd., reported in (1999) 1 SCC 492 . It may, in this regard, be noted that the decision, namely, Raunaq International (supra), does not apply to the facts of the present case inasmuch as Raunaq International (supra) is a case, wherein two companies, namely M/S. IVR Construction Ltd., Hyderabad, and Raunaq International Ltd., were competing for the work floated by the Maharashtra State Electricity Board for designing, engineering, manufacturing, supplying, erection and commissioning of large diameter pipes and steel tanks with all accessories and auxiliaries as prescribed in the bid documents for units 3 and 4 Khaperkheda Thermal Power Station, Maharashtra, each unit being of 210 MW. M/s. Raunaq International was found to be more suitable for the contract by the Technical Director. However, it was noticed that Raunaq International did not fulfill the qualifying criteria of having laid such pipeline for a distance of 3 kms. Similarly, the IVR Construction Ltd., which challenged the award of the tender, too did not fulfill the qualifying criteria. Considering, however, the fact that Raunaq International Ltd's. offer was lower than IVR Construction Ltd., and also considering the recommendation of the Technical Director regarding suitability of Raunaq international, the authorities concerned relaxed the qualification under the enabling provisions. The Supreme Court held that even if criteria, in the case of IVR Construction, was relaxed on the ground that its offer was lower, no fault could have been attributed, in such an exercise, to the selector. The Supreme Court, in the said context, further held that since IVR Construction Ltd. did not fulfill the requisite criteria, judicial review, at the instance of IVR Construction Ltd., is misplaced. 37. Thus, the case of Raunaq International (supra), in no way, applies to the facts of the present case inasmuch as Raunaq International (supra) is a case, which arose out of a tender process, where there were two bidders. 37. Thus, the case of Raunaq International (supra), in no way, applies to the facts of the present case inasmuch as Raunaq International (supra) is a case, which arose out of a tender process, where there were two bidders. In the present case, no process of selection was adhered to by the State respondents. Thus, the allotment of contract, in the present case, is nothing, but arbitrary inasmuch as not even assemblance of selection process was resorted to before the contract was awarded in favour of the private respondent. This apart, the State respondents have also not been able to lay before this Court any convincing reason, far less convince, as to why they, initially, did not float Notice Inviting Tender for the contract work, which has been subsequently awarded to the private respondent. Strictly speaking, in the present case, the State respondents excluded the petitioner from the purview of consideration on the ground that the previous tender process, the petitioner had allegedly been found not technically qualified, though, as already indicated above, no reason whatsoever has been assigned by the State respondents for branding the petitioner as a technically unqualified bidder. 38. In support of their contention that contract, in question, was allotted in bona fide exercise of power, the State respondents have placed reliance on Sterling Computers Ltd. vs. M & N Publications Ltd., reported in (1993) 1 SCC 445 . In Sterling Computers Ltd. (supra), the Supreme Court, on State or its instrumentalities' discretionary power in awarding commercial contract, held, at para 12, thus: ".........In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons , keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by Courts while dealing with public property...." 39. From the observations made above in Sterling Computers Ltd.(supra), it becomes clear that some discretion is, indeed, available to the State and its instrumentalities in awarding contracts, which involve commercial elements. But even in such matters they have to follow the norms recognised by Courts while dealing with public property...." 39. From the observations made above in Sterling Computers Ltd.(supra), it becomes clear that some discretion is, indeed, available to the State and its instrumentalities in awarding contracts, which involve commercial elements. Having granted the State a little more discretion than what it, ordinarily, has in matters of allotment of contracts involving commercial elements, the Supreme Court, in Sterling Computers Ltd. (supra), firmly held that even in such cases, the State has to follow, while dealing with public property, the norms recognized by the Courts, State largess, as already discussed above, cannot be given way on the whims and fancies of its executive. 40. Although the Executive is at liberty to assess the overall situation in deciding as to whom a contract shall be awarded, the terms of such decisions have to be tested on the touch-stone of bona fide exercise of power with no place for arbitrariness or favoritism. In Sterling Computers (supra), the MTNL, awarded the contract, to United India Periodicals Pvt. Ltd. (in short "the UIP"). Under the contract, the UIP were required to publish directories for Delhi as well as Bombay every year for a period of five years from 1987 to 1991. However, the UIP defaulted and committed breach of the terms of the agreement with the MTNL Consequently, the directories, for Delhi, were published only for the years 1987 and 1988 and, for Bombay, only for the year 1987. Subsequently, a supplemental agreement was entered into for publication of directories and although the original agreement had expired, the supplemental agreement stipulated that the MTNL, shall extend the original contract for 3 (three) more issues, each for Delhi, and Bombay, i.e., seven main issues of Bombay, and six main issues of Delhi of the said directories to be brought out hereafter. On being challenged, the High Court held that the orginal agreement was tainted with malice. The Supreme Court upheld the order of the High Court. 41. The case of Sterling Computers (supra) too does not held the case of the respondents inasmuch as the case of Sterling Computers (supra) does not allow the State or its instrumentalities to award contracts without following any norms and without holding any selection process as has been done in the present case. 42. 41. The case of Sterling Computers (supra) too does not held the case of the respondents inasmuch as the case of Sterling Computers (supra) does not allow the State or its instrumentalities to award contracts without following any norms and without holding any selection process as has been done in the present case. 42. The case of Sachidanand Pandey vs. State of W.B. reported in (1987) 2 SCC 295 , which the private respondent relies upon to sustain the allotment of contract in its favour, too does not support the case of the respondents inasmuch as Sachidanand Pandey (supra) was not a case, where the challenge was on the ground that no tender was floated before awarding the contract, the reliance, placed by the respondents on Sachidanand Pandey vs. State of W.B. reported in (1987) 2 SCC 295 , is wholly misplaced inasmuch as the State respondents have not disclosed, in the present case, to this Court any such fact, which could convincely show that at the time of issuing notice inviting tenders on 01.03.2006, the tenders could not have been invited or it was not resonably possible for the State respondents to invite tenders in respect of the contract work, which has come to be subsequently allotted to the private respondent. 43. There is, therefore, clear room for taking the view that in the facts and attending circumstances of the present case, changes, in the specifications of the contract work, were made so as to award the contract in favour of the private respondent and not in the interest of the public, for, had the award of contract been in the interest of public, the State respondents would have been able to disclose as to why the notice inviting tenders had not been issued, on 01.03.2006, for the work, which came to be subsequently allotted to the private respondent. 44. In short, thus, no such fact has been disclosed by the respondents, or discernible from the materials on record, which can justify departure from the normal rule of awarding of a public contract on the basis of sustainable selection process. There may be extraordinary situations, which may require some departure from the norms, but the authorities, under such circumstances, are obliged to disclose to the Court the compelling circumstances/reasons, which necessitated exercise of discretion contrary to the normal requirement of Article 14 of the Constitution of India. 45. There may be extraordinary situations, which may require some departure from the norms, but the authorities, under such circumstances, are obliged to disclose to the Court the compelling circumstances/reasons, which necessitated exercise of discretion contrary to the normal requirement of Article 14 of the Constitution of India. 45. In the case at hand, the State respondents, having not been able to assign, as already discussed above, reasons for holding the petitioner technically disqualified and they, having failed to assign the reason as to why, on what consideration, on what date and at what stage, making of changes, in the specifications of the contract work, were found to be necessary, and further, why, while issuing notice, on 01.03.2006, tenders were not invited for the work, which has eventually, come to be allotted to the private respondent or, in other words, what had restrained the State respondents from floating notice inviting tenders on 01.03.2006 itself in respect of the contract work, which has been subsequently awarded to the private respondent, one has no option but to hold that the State respondents' action in changing the specifications of the contract work is not bona fide and they failed to maintain the transparency, required to be maintained by them, while awarding the contract to the private respondent. 46. As stated above, in the instant case, the justification, offered for not calling tender by the Meghalaya State Electricity Board, is no justification in the eye of law. 47. Moreover, the principal ground of challenge, in Sachidanand Pandey (supra), was that the Government of West Bengal had shown lack of awareness of the problem of environment, while making allotment land for construction of a Five Star Hotel at the expense of the zoological garden; whereas the case at hand is a case, wherein a contract, which ought to have been awarded on the basis of competitive bidding, came to be awarded without adhering to any selection process at all. 48. The case of Haji T.M. Hassan Rawther vs. Kerala Financial Corpn, reported in (1988) 1 SCC 166 , referred to by the respondents, is also totally misplaced inasmuch as paragraph 14 of the said decision, which has been relied on by the respondents, is totally out of place and it does not fit into the fact situation of the present case. In Haji T.M. Hassan Rawther (supra), Kerala Financial Corporation obtained a decree for an amount of Rs. 1,20,000/-. The decree was passed, because of the default made by a Tea Estate in repaymant of loan disbursed by the Corporation, to realize the said decreetal amount, an auction sale was held on 05.11.1969; but there was no bidder. The Corporation, thereafter, itself purchased the property for Rs. 1,65,000/-. The Corporation, thereafter, took possession of the garden after settlement of a prolonged dispute with the workmen of the tea-estate in the year 1982. The Corporation, thereafter, called for tenders for sale of the tea-estate. The daughter of Haji T.M. Hassan Rawther, the appellant, was the only tenderer, who offered Rs. 5,10,505/-. Her tender was accepted; but she could not pay the amount. Thereafter, the Corporation, again, invited tenders for sale of the said property and this time, there were tree tenders, namely, the appellant, who offered Rs. 6,00,000/-, one PM Jacob, who offered Rs. 4,15,550/-, and KK Mathew, who offered Rs. 2,07,451/-. The appellant failed to pay the offered amount inspite of several opportunity and, therefore, the Tea-estate was offered to Sri PM Jacob after Sri Jacob agreed to raise the bid amount from Rs. 4,15,550/- to Rs. 4,50,000/-. The Supreme Court, in these circumstances, dismissed the appeal by holding that the dealing of the Corporation was fair and just. 49. The decision, in Haji T.M. Hassan Rawther (supra), too, does not help the case of the respondents inasmuch as it is a case, where tenders had been invited and it was following the tender process that the tea-estste was sold on a varied consideration. The case of Haji TM Hassan Rawther (supra) was not a case, where allotment of contract was by abandoning a tender process, or without adhering to a tender process. This decision, too, is of no help to the respondents inasmuch as the respondents have allotted the tender work, in the present case, by arbitrary exercise of their power. 50. In support of their contention that presumption of arbitrariness can not be drawn if no tender process is initiated, the respondents have placed reliance on Evergreen Iron & Finvest Ltd. vs. State of Tripura & Ors. (2005) 4 GLT 129. 50. In support of their contention that presumption of arbitrariness can not be drawn if no tender process is initiated, the respondents have placed reliance on Evergreen Iron & Finvest Ltd. vs. State of Tripura & Ors. (2005) 4 GLT 129. The case of Evergreen Iron (supra) dose not at all help the respondents inasmuch as the facts of the case, in Evergreen Iron (supra), are that NIT was issued for procurement of GCI sheets and galvanized ridges. Petitioner and two others submitted their tenders for the same. The tender of the petitioner was found to be the lowest. However, the said NIT was cancelled in respect of supply of GCI sheets. The reason for not considering the tender of the petitioner was reduction of price by SAIL from 500 to 2000 per metric ton of the items, which was substantial. The petitioner was accordingly requested to reduce his rates, but he refused; whereas SAIL was ready to extend more credit facility, maintaining the same price throughout the financial year and the office memo, dated 09.09.1986, issued by the State providing for guidelines entering contract for GCI sheets and steel materials, permitted the department to procure GCI sheets and steel materials from SAIL and TISCO directly without inviting tender. The Court found cancellation of NIT and placing of direct order with the SAIL was cost effective and was, therefore, in public interest. 51. The facts of the present case are entirely different inasmuch as in the present case, no tender process was initiated by the State respondents and, therefore, the decision in Evergreen Iron (supra) too does not support the case of the respondents, particularly, when the present one is a case, wherein it is not connected by the State respondents that the private respondent stands, on the same footing, in the fact situation of the present case, as SAIL in Evergreen Iron (supra). 52. The facts of the case in Computer Associated Industries of Mizoram vs. The Secretary to the Govt. 52. The facts of the case in Computer Associated Industries of Mizoram vs. The Secretary to the Govt. of Mizoram (2004) 1 GLT 721, which is relied on by the respondents, is entirely different and it does not help the respondents inasmuch as in this case, the decision of the Government of Mizoram was challenged for entrusting procurement of computers through a corporation, wholly owned by the Government of Mizoram, which was established for the development and growth of the computerization and information technology in the State. The order for procuring the computers was made without floating tenders. This was a policy decision, which was found by the Court to be just, fair and in public interest. The present one is not a case, where there was pre existing policy decision of the Government to award their contract to a Government undertaking; rather, the present one is a case, where the work was allotted to the private respondent, who was working with the State respondents since the year 1988, after abandoning the tender process, which had been initiated one year back and that too, disclosing any convincing reason. Hence, this case does not support the case of the respondents. 53. The respondents have placed reliance on Santosh Kumar Guha (1998) 2 GLT 440, wherein challenge was in respect of negotiation with a reputed US based firm for renovation and modernization of BTPS without calling tender. The petition was field by a social worker and a teacher of an ME school. The High Court noted the undeniable fact that for re-habilitation and modernization of BTPS, a number of reputed firms, in India, were approached, namely, National Thermal Power Corporation (NTPS), Calcutta Electric Power Supply (CEPS), Tata Consultancy Services (TCS) etc. but none came forward to invest and re-habilitate the plant. Under these circumstances, the Court upheld the negotiation with the reputed US based firm rejecting the challenges. It was, in the background of these facts, that the decision of the Government, in making selection of US based firm, was not interfered with. The fact of the case, in Santosh Kumar Guha (supra), are, by no means, applicable to the facts of the present case. 54. The State respondents have also relied on the case Netai Bag vs. State of W.B., reported in (2000) 8 SCC 262 . The fact of the case, in Santosh Kumar Guha (supra), are, by no means, applicable to the facts of the present case. 54. The State respondents have also relied on the case Netai Bag vs. State of W.B., reported in (2000) 8 SCC 262 . In Netai Bag (supra), wherein the writ petitioner had challenged the offer of the Government to hand over land to respondent No. 5, on long term lease of 99 years, without issuing any advertisement or resorting to the procedure of auction and tender. The Supreme Court found that the State has offered respondent No. 5 to take over the Durgapur abattoir after Newspaper advertisement issued by the West Bangal Livestock Processing Development Corporation, in 1986, had failed to elicit any response from any quarter. The Supreme Court also found that the writ petitioner had not alleged anywhere, in the writ petition, that the land had been sold/leased out to the respondent No. 5 at a throwaway price. The only point, urged before the Supreme Court, was the alleged arbitrariness on the part of the State Government in selling/leasing out the land to the respondent No. 5, but there was no factual foundation pleaded, in this regard, in the writ petition. The Supreme Court dismissed the appeal. This decision too does not help the case of the respondents inasmuch as in present case, the MeSEB has adopted the backdoor policy to allot the contract to the private respondent, and not to a Government undertaking, and that too, without floating any notice inviting tenders. 55. As regards the decision, in Air India Ltd. vs. Cochin International Airport Ltd.- (2000) 2 SCC 617 , which the respondents rely upon, it is pertinent to point out that Cochin International Airport Ltd. (in short, CIAL), which was established for setting up a new International Airport, at Cochin, invited offers, by writing letters, from some companies having experience in ground-handling facilities at the airport. While evaluating the offers, submitted by seven contenders including Air India, the CIAL decided to hand over the contract to Air India, which was challenged by one of the two short-listed parties, namely Cambatta Aviation Ltd., on the ground that the award of contract is unfair and unethical. 56. It may be noted that Air India Ltd. (supra) is a case, which, initially, arose out of a notice inviting offers. 56. It may be noted that Air India Ltd. (supra) is a case, which, initially, arose out of a notice inviting offers. At one stage, all the parties, as indicated above, were short-listed. On considering the merits of both the competitors, the authorities concerned were satisfied that Air India was, in the matter of experience, expertise, infrastructure, financial capacity and offer, was superior to others. It was, in such circumstances, that Air India Ltd. (supra), thus, does not, in any way, help the case of the private respondent. In Air India Ltd. (supra), the Supreme Court found that the contract was given to Air Indian by evaluating the offers made by Cambatta as well as Air India. Before awarding the contract, the Authority had satisfied itself that in the matter of experience, expertise, infrastructure and financial capacity, the offer of Air India was superior and more beneficial. The contract was not one based on public tender mode, but by way of negotiating the best favorable offer. The only point, laid before the Supreme Court for consideration, was whether CIAL had acted fairly. The Supreme Court, however, held that the action of the CIAL was fair and not unethical. The case of Air India Ltd. (supra), therefore, does not apply to the facts of the present case. 57. The law, relating to award of contract, by the State, its corporation and bodies, acting as the instrumentalities and agencies of the Government, are more or less settled by judicial pronouncements. The State can choose its own method in arriving at a decision for awarding contract and it can fix its own terms of invitation to tender, what is required is that while awarding the contract or granting any right or privilege to other, it must be just, fair, transparent, free from the vice of arbitrariness and in tune with Article 14 of the Constitution. In a given case, the State can award contract by negotiation, but such decision has to be free from bias, discrimination and favouritism. 58. In the case at hand, the facts are really disturbing to say the least. The State respondents issued tender, wherein both the petitioner and the respondent No. 4 (i.e., the private respondent) participated. There is nothing on record to show that the technical bid of the private respondent was opened for consideration. 58. In the case at hand, the facts are really disturbing to say the least. The State respondents issued tender, wherein both the petitioner and the respondent No. 4 (i.e., the private respondent) participated. There is nothing on record to show that the technical bid of the private respondent was opened for consideration. Without disclosing any reason whatever as to why the private respondent was disqualified, the authorities clandestinely awarded the contract in favour of the private respondent and even when the petitioner questioned the fairness, transparency and legality of the awarding of contract in favour of the private respondent in this writ proceeding, the State respondents have not been able to assign any reason as to why the petitioner was held to be technically not qualified. This apart, and as already indicated above, the State respondents are also completely silent as to why they had not floted tender, on 01.03.2006 itself, in respect of the contract work, which come to be allotted subsequently to the private respondent. 59. It has also been contended, while resisting this writ petition, by the respondents that the writ petition suffers from delay and latches. When the contract has been awarded to the private respondent without informing any one and even when the petitioner had instituted the suit, the State respondents did not come forward to contest the suit disclosing that the contract had been awarded on changed specifications, the writ petition can not be said to have been suffering from delay and latches, particularly, when the allotment of contract was not publicly made known nor was the petitioner informed about the allotment of the contract to the private respondent. Later on, when the petitioner learnt that the contract had stood awarded to the respondent No. 4, the petitioner filed a suit. The suit was dismissed, because there were some changes made in the subject matter of the contract, where was not under challenges in Law suit. Thereafter, the petitioner filed the present writ petition. In the face of these facts and attending circumstances, the decisions, cited by the respondents, are of no help. 60. Because of what have been discussed and pointed out above, I find that the decision making process of awarding the contract, in question, was arbitrary and denial of opportunity to the petitioner participate in the tender process was wholly illegal, mala fide and arbitrary. 60. Because of what have been discussed and pointed out above, I find that the decision making process of awarding the contract, in question, was arbitrary and denial of opportunity to the petitioner participate in the tender process was wholly illegal, mala fide and arbitrary. In such circumstances, the award of the contract needs to be set aside. However, considering the fact that the execution of the contract is over, it would be illogical to set aside the awarding the contract to private respondent. 61. Considering however, the fact that the petitioner was kept out of the selection process of the contract, in question, by adopting means, which were wholly unfair, illegal and arbitrary, the petitioner deserved to be compensated on the loss, when the petitioner may have suffered. This Court is of course, required to determine of the quantum of loss, which the petitioner might have suffered. The present writ petition is not the appropriate proceeding for awarding of damages to the petitioner for the loss, which the petitioner has suffered. He must, however, be compensated for denying him the right to equal treatment under Article 14 of the constitution. Neither the State respondents nor can the private respondents be, therefore, completely exonerated and they need to be directed to pay, apart from the cost of proceeding, some amount as a public law damages to the petitioner, (see Subhas Projects and Marketing Ltd. vs. West Bengal Power Development Corporation Ltd., reported in (2008) 3 SCC 438). 62. In the result and for the reasons discussed above, while awarding of the contract, in question, to private respondent is not interfered with, this writ petition is disposed of with direction that the petitioner be paid a sum of Rs. 10,00,000/- (Rupees ten lakhs) as damages. The damages, so directed, shall be payable by the State respondents as well the private respondents. The State respondents as well as the private respondents, who are jointly and severely liable, shall also pay a sum of Rs. 50,000/- as cost of the proceeding. With the above observations and directions, this writ petition shall stand disposed of. Disposed off.