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2011 DIGILAW 680 (GAU)

K. K. Chire v. State of Nagaland

2011-08-10

A.K.GOSWAMI

body2011
JUDGMENT A.K. Goswami, J. 1. Heard Mr. B.N. Sarma, learned senior counsel for the Petitioner as well as Mr. C.T. Jamir, learned senior counsel appearing for Respondent No. 4. I have also heard Mrs. Y. Longkumer, learned Additional Senior Government Advocate appearing for the State Respondents. 2. While issuing notice of motion on 30-06-2011, this Court had suspended the execution of the construction work in question and also provided that No. payment for the work allegedly executed by the Respondent No. 4 to the extent of 20 % shall be paid. The Respondent No. 4 has filed an application praying for vacation/modification/alteration of the aforesaid interim order dated 30-06-2011. 3. As agreed upon by the learned Counsel for the parties, this writ application is taken up for disposal at the admission stage. 4. By this application, under Article 226 of the Constitution of India, the Petitioner prays for quashing of the work orders dated 25-03-2010 and 04-04-2011 issued by the Chief Engineer, P.W.D. (R & B), Nagaland, Kohima in favour of Respondent No. 4 for construction of road from Chozuba Border Road Junction to Kijumetuoma via Khusomi. The order dated 25-03-2010 was subsequently clarified to have been inadvertently issued and the work was stated to have been allotted by order dated 04-04-2011. This aspect of the matter shall again be dealt with later. 5. The Petitioner, who claims to be a firm, registered as first class contractor with the Nagaland Public Works Department, has stated that the proposal for the construction of the road from Chozuba Border Road Junction to Kijumetuoma via Khusomi was approved and sanctioned by the Government of India, Ministry of Development of North-East Region (DONER) and fund for the work in question has been provided to the extent of 90 % by the Central Government. Even before sanction was accorded by the Central Government by an order dated 16-03-2011, it would appear that a notice inviting tender was issued on 01-03-2011 and also again on 17-03-2011, without publishing the said notice inviting tender in any manner, as a result of which, the Petitioner was unable to participate in the tender process. It is further stated that three tenders were submitted, including one by the respondent No. 4. 6. In the comparative statement, it had been remarked that all the three tenders were found to be unqualified as per norms. It is further stated that three tenders were submitted, including one by the respondent No. 4. 6. In the comparative statement, it had been remarked that all the three tenders were found to be unqualified as per norms. However, it was also indicated that the firm M/S Hexad Syndicate had backed the Respondent No. 4 and, accordingly, on that basis, the Respondent No. 4 was allotted the work in question by an order dated 25-03-2010. Another work order was issued on 04-04-2011 by the Respondent No. 2 for the very same work. It has been averred in the petition that the Respondent No. 4 had not executed any work worth 50 % of the value of the present work which is the requirement under the notice inviting tender and, therefore, the Respondent No. 4 was clearly ineligible. It is pleaded that the Respondent No. 4 had stage managed the whole affair and there is complicity and collusion at all levels. The Respondent No. 4 was registered as first class contractor on 27-05-2009 and, therefore, he could not have had any business for a period of 10 years at the time of submission of the tender as indicated by him against Item No. 4 of Form No. 3 of his bid. Categorical statements have been made that the notice inviting tender had not seen the light of the day as the same was prepared and kept in the file so that competition is eliminated. 7. The Respondent No. 4 had filed an affidavit-in-opposition questioning the locus stand of the writ Petitioner to challenge the work order issued in his favour in view of the fact that he was not a party aggrieved as he had not submitted tender in response to the aforesaid notice inviting tender. While disputing the correctness of the statements made by the Petitioner that the notice inviting tender was not published, it is asserted that the notice inviting tender was displayed in the notice board of the Respondent No. 2 as well as was dispatched to the concerned division for information of the interested bidders and while the Petitioner had not submitted any tender for the work in question, three tenderers including the Respondent No. 4 had participated in the process. It has also been stated that there is nothing wrong in issuing the notice inviting tender dated 01-03-2011 inasmuch as the same was issued in anticipation of the approval of the Central Government so that as and when the approval is received, the work can start at the earliest. The Respondent No. 4 has also stated that the work order dated 25-03-2010 was erroneously issued due to oversight and, therefore, the Respondent No. 2 by a letter dated 12-07-2011 had corrected the same to be treated as the letter dated 04-04-2011. According to Respondent No. 4, the tender was submitted by him on 18-03-2011 and that the tender was backed by M/S Hexad Syndicate, who had executed power of attorney in his favour to extend support of the required financial back up, technical and skilled workers, etc. His tender was valid, having been submitted with all the requisite documents and, therefore, No. illegality was committed by the State in issuing the work order in his favour. It is also stated by the Respondent No. 4 that on examination of the tender documents of the three tenderers, they were not found qualified. It is the categorical assertion of the Respondent No. 4 that he was allotted the work order in view of the support of M/S Hexad Syndicate, which is a qualified and competent firm. The affidavit also questions the right of the writ Petitioner to challenge the work order issued in favour of Respondent No. 4 as the writ Petitioner is also executing a similar work under the same tender process, which is financed by the DONER and that the said work had been allotted in the same manner i.e. with regard to the NIT and award of the work. 8. The writ Petitioner had filed an affidavit-in-reply, rebutting the contentions advanced with regard to the maintainability of the writ petition as wholly unfounded and reiterated that the notices inviting tender were never displayed in any notice board of the P.W.D. Once again an assertion is made that the other two tenderers were enlisted only for legalising the tender process which requires minimum of three numbers of tenderers for allotment of any work. It is also stated that according to the sanction order issued by the Central Government, tenders have to be issued on competitive basis by advertising in newspaper, trade journal, website etc. It is also stated that according to the sanction order issued by the Central Government, tenders have to be issued on competitive basis by advertising in newspaper, trade journal, website etc. and No. such formalities were observed in the instant case. The alleged support and back up of M/S Hexad Syndicate is styled as wholly irrelevant and such support, in absence of any stipulation in the notice inviting tender, cannot be entertained. Power of attorney which was submitted by the Respondent No. 4 alongwith the tender, a copy of which the writ Petitioner received in pursuance of filing of an application dated 19-05-2011under R.T.I. Act, 2005, bore No. date. It has also been highlighted in the said affidavit that by No. stretch of imagination it can be said that within a span of less than 25 days, 20 % of the work could be completed by Respondent No. 4 as has been certified by the Respondent No. 3. The allegation that the Petitioner is also a beneficiary of a work order allotted to him in a similar manner is also denied. It has been stated that the tender process in respect of the work order allotted to him, in the year 2007, was done in a transparent manner and in a normal procedure and none had challenged such work order allotted to him. 9. The State had filed two affidavits, one of which was filed after arguments were heard on 08-08-2011. This affidavit is dated 09-08-2011. In the first affidavit filed by the State, the State has admitted that the system followed by the Department while issuing notice inviting tender is commonly W.P.(C) No. 153(K) of 2011 Page 7 of 25 done through publication in media. However, in certain exceptional cases depending on various considerations, a decision can be taken by the tender board, for posting of the NIT in the official notice board of the Chief Engineer, P.W.D. after circulating it to all the districts and in that event, such publication would suffice. The affidavit goes on to say that the notice inviting tender was circulated and posted in the notice board of the Chief Engineer, P.W.D. as well as in the office of the concerned Executive Engineer. The affidavit goes on to say that the notice inviting tender was circulated and posted in the notice board of the Chief Engineer, P.W.D. as well as in the office of the concerned Executive Engineer. It is also brought on record that the Petitioner had also been allotted a work order dated 15-12-2007 after notice inviting tender was published in the notice board and that the Petitioner could not complete the work within the stipulated period of 24 months requiring the department to seek extension of the period. The decision to award the work order in favour of Respondent No. 4 is justified on the strength of support extended by M/S Hexad Syndicate to Respondent No. 4. The affidavit also denounces the allegation of the writ Petitioner that there was gross illegality in the entire tender process. The notice inviting tender was issued on 01-03-2011 in public interest, the affidavit goes on to say. The confusion regarding date of power of attorney was also clarified by the affidavit dated 09-08-2011. The Respondent No. 2 has stated that even without the power of attorney, the tender committee could have taken a decision as M/S Hexad Syndicate is a reputed firm in Nagaland. In the said affidavit, there is an admission to the fact that at the time of examination of the tender papers, power of attorney was found undated and the Respondent No. 2, thereafter, directed M/S Hexad Syndicate to get the document registered or notarised and, accordingly, the same was done and submitted again on 30-03-2011. 10. Mr. B.N. Sarma, learned senior counsel for the Petitioner submits that the work order allotted in favour of the Respondent No. 4 is wholly unsustainable. The tenderers having been found to be not qualified, the only course open to the State Respondents was to issue a fresh notice inviting tender in accordance with law by giving wide publicity. The sanction order dated 16-03-2011 had, in fact, in No. uncertain terms stipulated that the State Government should follow all codal formalities which includes calling tenders on a competitive basis by advertising in newspaper, tender journal, website etc. However, as has been admitted by the State, No. such steps were taken. The sanction order dated 16-03-2011 had, in fact, in No. uncertain terms stipulated that the State Government should follow all codal formalities which includes calling tenders on a competitive basis by advertising in newspaper, tender journal, website etc. However, as has been admitted by the State, No. such steps were taken. Not only that, even the so called notices inviting tender dated 01-03-2011 and 17-03-2011 were not displayed in the notice board and were withheld only to sub serve the interest of the Respondent No. 4. The learned senior counsel submits that No. stipulation has been provided in the notice inviting tender that even if a tenderer, who on his own is not fulfilling the eligibility criteria or is otherwise not qualified, he can still be considered for allotment of the work if he had the support or backing of any other firm, who fulfils the terms of the tender. In this premise, the learned senior counsel argued that decision to allot the work in favour of Respondent No. 4 is vitiated. He further submits that the credential of M/S Hexad Syndicate is also not known. The learned senior counsel submits that undue favour has been shown to Respondent No. 4. Severely criticising the power of attorney, the learned senior counsel submits that by the said power of attorney, the Respondent No. 4 could not have been authorised to undertake work in the name of Respondent No. 4. The learned senior counsel also submits that, admittedly, the power of attorney was not even dated when it was submitted on 18-03-2011. After the Petitioner applied under the R.T.I. Act, 2005 on 19-05-2011, the Petitioner was furnished with an undated power of attorney, which has been annexed as Annexure-IX to the writ petition. It is in this context that the learned senior counsel submits that affidavit filed on 09-08-2011 is a false affidavit sworn by the Respondent No. 2 and he would contend that the date was put subsequent to the power of attorney being made available to the Petitioner by giving a back date of 30-03-2011. It is in this context that the learned senior counsel submits that affidavit filed on 09-08-2011 is a false affidavit sworn by the Respondent No. 2 and he would contend that the date was put subsequent to the power of attorney being made available to the Petitioner by giving a back date of 30-03-2011. The learned senior counsel for the Petitioner submits that issuance of two tender notices--one of which was issued even before the sanction order dated 16-03-2011, two work orders--one dated 25-03-2010 and the other 04-04-2011, manipulation of the power of attorney and the decision to allot the work order to Respondent No. 4 in spite of the tender having been found to be not qualified as per norms, limiting the tendering process to a chosen few including the Respondent No. 4 by not giving publicity to such notice inviting tender, are pointers to the fact that the Respondent No. 4 was any how sought to be bestowed with undue benefit by issuance of a work order in his favour. 11. The learned senior counsel placed reliance on the judgment of the Apex Court in the case of Ramana Dayaram Shetty-versus-The International Airport Authority of India and Ors. reported in AIR 1979 SC 1628 , to drive home a proposition that the authority cannot accept tender of a person who does not fulfil the requisite qualification. He has also placed reliance on the decision in the case of Dutta Associates Pvt. Ltd v. Indo Merchantiles Pvt. Ltd. and Ors. reported in (1997) 1 SCC 53 , to highlight that the consideration of the tender and the procedure to be followed in the matter should be transparent. 12. It is also the submission of the learned senior counsel that he could not participate in the tender process because, not to speak of wide publicity of the notice inviting tender, the notice inviting tenders were not even published in any forum and therefore, the writ Petitioner could maintain an application under Article 226 of the Constitution of India. He has also submitted that there is No. delay in approaching this Court inasmuch as immediately on coming to know about the work order having been issued to the Respondent No. 4, he had applied for the necessary documents and after obtaining the same, without any further delay, has approached this Court. He has also submitted that there is No. delay in approaching this Court inasmuch as immediately on coming to know about the work order having been issued to the Respondent No. 4, he had applied for the necessary documents and after obtaining the same, without any further delay, has approached this Court. With regard to the allegation leveled against him that he also had benefited from such work order which was issued to him after the notice inviting tender was displayed only in the notice board, the learned senior counsel submits that such work order had not been challenged by anybody and assuming that the work order was issued to him only after publication of the notice inviting tender in the notice board, same will not disentitle him to obtain relief from this Court. He, however, categorically emphasised that unlike in the present case, it is not the case of the Respondents that notice inviting tender in that case was not even displayed. 13. Mr. C.T. Jamir, learned senior counsel appearing for Respondent No. 4 submits that writ petition involves serious disputed question of facts and, therefore, the petition should be rejected outright. Referring to the serial No. 6 of the "copy to " of the tender notice dated 01-03-2011, the learned senior counsel points out that the tick mark against serial No. 6 would leave No. room for doubt that the notice inviting tender was displayed in notice board. Inviting reference to the sanction order dated 16-03-2011, the learned senior counsel submits that Clause 8 of the said sanction order itself provides that the State Government should ensure that the tenders are issued within 30 days of issue of the approval, if not already issued, and that the Ministry should be intimated accordingly. Therefore, according to the learned senior counsel, the State Government was absolutely right in issuing notice inviting tender on 01-03-2011. The learned senior counsel argued that having regard to the prayer made in the writ petition, which was only for quashing of the work order issued in his favour, it is clear that the intention of the writ Petitioner is to stop the ongoing project. He also vehemently reiterated the stand taken in the affidavit that the writ Petitioner has No. legal right to challenge the work order and, therefore, the Petitioner has No. locus stand to maintain this application. He also vehemently reiterated the stand taken in the affidavit that the writ Petitioner has No. legal right to challenge the work order and, therefore, the Petitioner has No. locus stand to maintain this application. He also submits that on the ground of delay also, the writ petition is liable to be rejected. He submits that as the Respondent No. 4 had the full backing of M/S Hexed Syndicate, the State Respondents committed No. illegality in issuing the work order in his favour. 14. Referring to the case in Air India Limited v. Cochin International Air Port and Ors. reported in (2000) 2 SCC 617 , the learned senior counsel submits that even if some defects are found in the decision making process, the Court should exercise power under Article 226 of the Constitution of India keeping in mind larger public interest. He has also, by referring to a decision of the Apex Court in Villianur Iyarkkai Padukappu Maiyam v. Union of India and Ors. reported in (2009) 7 SCC 561 , submits that there is always a presumption that the Government decision is reasonable and is in the interest of public. On the basis of this decision, he also makes a point that it is not always necessary and that the State is not always bound to issue notice inviting tender. The learned senior counsel has also relied on the decision in the case of Sorath Builders v. Shreejikrupa Buildcon Limited and Anr. reported in (2009) 11 SCC 9 . Citing the case of Moumita Poddar v. Indian Oil Corporation Limited and Anr. reported in (2010) 9 SCC 29, he contends that in absence of any allegation of manipulation or any undue favour being shown to Respondent No. 4, this Court ought not to interfere with the work order issued in favour of the Respondent No. 4. 15. Mrs. Y. Longkumer, learned Additional Senior Government Advocate, while adopting the argument advanced by the learned senior counsel for Respondent No. 4, submits that the decision to award the work order in favour of the Respondent No. 4 has been done in public interest having regard to the urgency of the project. It is also vehemently argued by her that the notices inviting tender were displayed in the notice board and, therefore, it cannot be said that there were No. publicity of the notice inviting tender. It is also vehemently argued by her that the notices inviting tender were displayed in the notice board and, therefore, it cannot be said that there were No. publicity of the notice inviting tender. It is also submitted that taking an overall view of the matter, this Court, in larger public interest, may not interfere with the work order issued in favour of the Respondent No. 4. 16. It will first be necessary to dispose of the contention raised by Mr. C.T. Jamir, learned senior counsel for the Respondent No. 4 that the Petitioner has No. locus stand to maintain this application. The substratum of the argument of the learned senior counsel for Respondent No. 4 is that the writ Petitioner had not participated in the tender process and, therefore, No. legal or constitutional right of the Petitioner has been infringed and as such, he is not a person aggrieved. The writ Petitioner being a registered Class-I contractor, he has right, subject to eligibility, to participate for allotment of work in response to a notice inviting tender. By now it is firmly well established that barring exceptional circumstances, State is obliged to take recourse to issue notice inviting tender in respect of matters relating to distribution of State largesse. It is also well recognised that there has to be wide circulation of such notices inviting tender so that there can be wider participation of eligible bidders or tenderers. The case of the Petitioner is that the Respondent authorities had not published the notice inviting tender in any manner as a result of which the writ Petitioner was not aware of such notice inviting tender as a consequent whereof he could not participate in such tender process. Whether or not the Petitioner succeeds in the writ petition to establish his such claim is another matter. However, in view of the allegations leveled by the Petitioner that the action of the State Respondents has denied him the opportunity to participate in the tender process, such action of the State has infringed his right and, therefore, the Petitioner has locus stand to maintain the application. In that view of the matter, this contention of the learned senior counsel for the Respondent No. 4 fails. 17. The stand of the State in the affidavit is that the Department while issuing notice inviting tender, normally and commonly publishes the same in media. In that view of the matter, this contention of the learned senior counsel for the Respondent No. 4 fails. 17. The stand of the State in the affidavit is that the Department while issuing notice inviting tender, normally and commonly publishes the same in media. The State has conceded that in the instant case the notice inviting tender was not published in media. The sanction order dated 16-03-2011 in Clause 13 provides as follows: 13. The State Government should follow all codal formalities which includes calling tenders on a competitive basis against advertisement in newspapers, Trade Journal, website etc. to ensure wide publicity with a view to ensure healthy response. The contention of the writ Petitioner that the notice inviting tender was not published and displayed in the notice board has been seriously contested by the State Respondents as well as by the private Respondent. This does give right to a disputed question of fact, as has been urged by the learned senior counsel for the Respondent No. 4. However, in the scenario presented in this case, such a disputed question of fact, does not go into the root of the matter. Even if such notices are assumed to be displayed in the notice board as contended by the State, the same cannot come within the sweep of the requirement as indicated in Clause 13 of the sanction order dated 16-03-2011. The writ Petitioner cannot be made to suffer because it is the responsibility of the State Respondents to give wide publicity. 18. It is also to be noted that the Central Government is financing 90 % of the project. In view of the Clause 8 of the said sanction order, a view may be taken that in anticipation of the approval, the State had issued notice inviting tender so that as and when, the approval is received, the formalities to be completed like issuance of notice inviting tender did not delay the commencement of work. Therefore, this Court is persuaded to take a view that No. fault, per se, can be attributed for issuing the notice inviting tender on 01-03-2011. In its own wisdom, after the order dated 16-03-2011, the State had once again issued notice inviting tender. Therefore, this Court is persuaded to take a view that No. fault, per se, can be attributed for issuing the notice inviting tender on 01-03-2011. In its own wisdom, after the order dated 16-03-2011, the State had once again issued notice inviting tender. But the question is--whether on the face of the stipulation contained in letter dated 16-03-2011, the State can sustain the notice inviting tender by taking a plea that it had been displayed in the notice board. This has to be considered also in the context of the stand taken by the State Government that the normal system followed is publication of notice inviting tender through the media. No. explanation has been forthcoming as to why it was considered necessary to restrict publication of the notice inviting tender only through the notice board. Keeping in mind that the State had taken recourse to issue its notice inviting tender, even at a stage when the sanction of the approval of Central Government was still awaited, surely the State cannot plead constraint of time and it would be reasonably expected that the State would have taken recourse to its normal practice and procedure i.e. publication of the notice inviting tender through media. 19. The estimated cost of the project is 33.68 crores. Though not clearly worded, from Clause 9 of both the tender notices, which are identical, it would appear that one of the eligibility criteria is that the tenderers must have completed one similar nature of work individually during the last five years costing not less than 50 % of the tendered amount. Materials on record would indicate that the Respondent No. 4 had not completed similar nature of work individually costing not less than 50 % of the tendered amount. The Respondent No. 4 was not found qualified in the tendering process as is evident from the comparative statement and the Bid Capacity Evaluation. Observation in the comparative statement and the remarks of the Bid Capacity Evaluation may be suitably reproduced herein below: Observation in the Comparative Statement. Observations: Technical bid and Bid Capacity were evaluated. Three firms applied for the above mentioned work but none of them qualified the norms. However, Sl. No. 1/3, M/S NEO ENTERPRISES is being backed by the M/S HEXAD SYNDICATE and authorized to carry out or execute any contract works. M/S HEXAD SYNDICATE has submitted full documents. Observations: Technical bid and Bid Capacity were evaluated. Three firms applied for the above mentioned work but none of them qualified the norms. However, Sl. No. 1/3, M/S NEO ENTERPRISES is being backed by the M/S HEXAD SYNDICATE and authorized to carry out or execute any contract works. M/S HEXAD SYNDICATE has submitted full documents. But they are not joint venture parties. In this regards authority may kindly take decision. Remarks in Bid Capacity Evaluation. Remarks: All the three parties could not qualified the eligibility for the above contract work. However, Sl. No. 1/2 is being backed by the M/S HEXAD SYNDICATE and authorized to carry out or execute any contract works. M/S HEXAD SYNDICATE firm has submitted full documents. But they are not Joint Venture parties. In this regards authority may take decision. 20. It is also relevant to note that it has not been pleaded by the State Respondents that the notice inviting tender dated 17-03-2011 has been cancelled. The last date of the receipt of tender in terms of said notice inviting tender was 31-03-2011. It begs the question as to how the tenders could be opened on 26-03-2011, when there was still five days left. 21. It is an admitted position that the Respondent No. 4 was not found to be qualified as per norms on the assessment of his tender. There is also No. dispute at the bar that the notice inviting tender in respect of the work in question did not contain any stipulation that a tenderer could take support of any other third party to make his tender valid for consideration for grant of work order. The State had allotted the work order on the sole basis that one M/S Hexad Syndicate had backed and supported the Petitioner. In the comparative statement as well as in the evaluation of bid, it is been stated that the Respondent No. 4 and the M/S Hexad Syndicate are not joint venture parties. The Apex Court in Dutta Associates (Supra) had laid down that fairness demands that the authority should notify in the tender process itself the procedure which they proposed to adopt while accepting the tender. It is also laid down that the procedure to be adopted has to be open, transparent and fair. The Apex Court in Dutta Associates (Supra) had laid down that fairness demands that the authority should notify in the tender process itself the procedure which they proposed to adopt while accepting the tender. It is also laid down that the procedure to be adopted has to be open, transparent and fair. In view of the aforesaid, the entire decision making process culminating in the issuance of the work order in favour of the Respondent No. 4 is vitiated. In Ramana (supra), the Apex Court had clearly laid down that if a tenderer does not satisfy the condition of eligibility, his tender would not be eligible for consideration. 22. In view of the above discussions, it is not really very necessary to dwell on the issue of the power of attorney. Suffice is to say that by means of such power of attorney, No. support or backing could have been legally given to the Respondent No. 4. It is also not understood how the Respondent No. 2 could have instructed M/S Hexad Syndicate to take back the undated power of attorney after opening of the tender for getting the same registered or notarised. Equally incomprehensible is the assertion of the Respondent No. 2 that a decision could have been taken by the tender committee even without the power of attorney. 23. The State may not enter into any contract with anybody, but if it decides to enter into any contract, it must do so fairly without discrimination and without unfair procedure. Where the Government is dealing with the public, whether by way of entering into contract or granting other forms of largesse, the Government cannot act arbitrarily at its own ipse dixit and sweet will, but its action must be in conformity with standard which is not arbitrary or irrational. 24. The decision in Air India (supra) relied on by the learned senior counsel for the Respondent No. 4 does not in any way support the case of the Respondent No. 4. The Court can examine the decision making process and interfere with the decision if it is found to be malafide, unreasonable and arbitrary. The State is obliged to conform to the norms, standards and procedure laid down by them and cannot deviate from them without any justification. No. doubt the Court has to keep the larger canvas of public interest in mind. The State is obliged to conform to the norms, standards and procedure laid down by them and cannot deviate from them without any justification. No. doubt the Court has to keep the larger canvas of public interest in mind. The presumption that is available in respect of the Governmental action that it is reasonable and in public interest, as held in Villianur (supra) is rebuttable. The factual matrix of Villianur (supra) centred around the development of Pondicherry Port which the Government was trying to develop since 1973 and it is in that context the Supreme Court had observed that the State is not always bound to advertise. Clearly, the facts are distinguishable in this case. The materials on record of this case demonstrate that the State Respondents had issued the work order on wholly irrelevant consideration and arbitrarily, giving a complete go by to the professed norms of distribution of State largesse, by giving the work order to a tenderer whose tender did not qualify, on their own showing, because it failed to meet the norms. 25. The decision in Sorath Builders (supra) revolves around the question as to whether the High Court would be empowered to interfere with the terms and conditions of notice inviting tender and, therefore, the decision is not applicable to the facts and circumstances of this case. 26. Allotment of work order of the kind with which this Court is grappled with, cannot certainly be elevated to the pedestal of a policy decision taken on economic consideration as is sought to be urged by Mr. C.T. Jamir. The award of contract, whether it is by a private party or by public body or State, essentially is a commercial transaction. The reliance place on Moumita Poddar (supra) is also of No. assistance to the Respondent No. 4 because apart from the fact that there were No. allegation of manipulation or any undue favour having been shown to her, there were subsequent events which the Apex Court took note of to do complete justice between the parties. 27. The submission of the learned Counsel for the Respondents that the Petitioner also was allotted a work order after displaying notice inviting tender in the notice board and, therefore, he cannot challenge the procedure adopted by the State Respondents, is not tenable. The work order issued in favour of the writ Petitioner was not challenged. 27. The submission of the learned Counsel for the Respondents that the Petitioner also was allotted a work order after displaying notice inviting tender in the notice board and, therefore, he cannot challenge the procedure adopted by the State Respondents, is not tenable. The work order issued in favour of the writ Petitioner was not challenged. Assuming that it was a wrong committed, illegality, when comes to the notice of the Court, cannot be allowed to be perpetuated. In view of the fact that this Court had already indicated the vitiating factors in the decision making process leading to the award of work, submission of the Respondents are not accepted. In the totality of the facts and circumstances, this Court is also of the opinion that the plea raised by the Respondents for dismissal of the writ petition on the ground of delay is also without any substance. 28. This Court has to deal with one more submission of Mr. C.T. Jamir, learned senior counsel that as the writ Petitioner has only made the prayer for quashing of the work order, discretionary relief should be refused to him as quashing of the order would mean that the project would be stalled. True, the writ Petitioner has made the prayer for setting aside of the work order only. While administering law, it is to be tempered with equity. This Court would be failing in its duty if it does not take into account equitable considerations and mould the final order in exercise of its extraordinary jurisdiction. Having come to the conclusion that the work order issued in favour of the Respondent No. 4 is not sustainable, this Court can mould the relief by issuing necessary direction for completion of the project in accordance with law. 29. It has been argued by Mr. C.T. Jamir that the certificate of Respondent No. 3 itself shows the Respondent No. 4 has completed 20% of the project. This certificate is dated 29-04-2011 and the work order, according to the Respondents, was issued on 04-04-2011. There was an intervening period of 25 days. 29. It has been argued by Mr. C.T. Jamir that the certificate of Respondent No. 3 itself shows the Respondent No. 4 has completed 20% of the project. This certificate is dated 29-04-2011 and the work order, according to the Respondents, was issued on 04-04-2011. There was an intervening period of 25 days. While not expressing any final opinion on the correctness or otherwise of the said certificate, prima facie, having regard to the fact that the period of completion of the work is 24 months, it seems to be highly unlikely that 20% of the work for 26 kilometres of the road could be completed in just 25 days time. The Respondent authorities are now directed to make verification of the work done by the Respondent No. 4 through an official above the rank of Executive Engineer. 30. For the reasons and discussions hereinabove, the writ petition is allowed. The impugned work order dated 04-04-2011 is set aside and quashed. The Respondent authorities are directed to issue notice inviting tender in accordance with law bearing in mind the observations made in this order and to take such further steps as would be necessary to complete the work in question. 31. No. costs. Petition allowed.