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2018 DIGILAW 2135 (JHR)

Ambey Mining Private Limited v. Union of India

2018-09-26

RAJESH SHANKAR, RAJESH SHANKAR

body2018
JUDGMENT : 1. The present writ petition has been filed for quashing and setting aside the order dated 21.03.2017 as contained in Ref. No. EC/HQ/CMC/RJML 224.3 L. Cum/2017/172 issued under the signature of the General Manager (CMC) Eastern Coalfields Limited (respondent no. 5) whereby the second NIT vide e-Tender Notice No. ECL/HQ/CMC/RJML 224.3/L.Cum/887 dated 04.10.2016 has been cancelled and also for issuance of direction upon the respondents to award the said tender to the petitioner. 2. The factual background of the case as stated in the writ petition is that a tender vide e-Tender Notice No. ECL/HQ/CMC/RJML 224.3 L.Cum/499 dated 25.05.2016 was floated for hiring of HEMM for removal of 224.30 L.Cum OB within RCML patch of Rajmahal OCP in Rajmahal Area. The petitioner along with others participated in the said tender wherein the petitioner was declared L2 and one M/s Starwise Dealmark Pvt. Ltd. was declared L1. The bid of M/s Starwise Dealmark Pvt. Ltd. was rejected due to submission of incomplete documents by it. Since the said work was not allotted to the petitioner despite being L2, it filed a writ petition before this Court being W.P. (C) No. 5154 of 2016 which was subsequently withdrawn. The ECL again floated a tender vide e-Tender Notice No ECL/HQ/CMC/RJML 224.3 L. Cum/887 dated 04.10.2016 for the same work wherein the petitioner was declared as lowest bidder, however the work was not finalized with the petitioner. Subsequently, the respondent no. 5 vide impugned order as contained in Ref. No. ECL/HQ/CMC/RJML 224.3 L. Cum/2017/172 dated 21.03.2017 cancelled the tender dated 04.10.2016 which gives rise to the filing of the present writ petition. 3. The learned Senior Counsel for the respondent-ECL at the very outset raises the question regarding the territorial jurisdiction of this court in entertaining the present writ petition by referring the bid document which according to him provides the jurisdiction only to the court of Asansol since impugned order has been issued from HQ ECL. It is further submitted that the agreement has not yet been executed with the petitioner and any part of cause of action has also not arisen in the State of Jharkhand. Reliance is put to the judgment of the Hon’ble Supreme Court rendered in the case of Rajasthan State Electrical Board vs. Universal Petrol Chemicals Ltd., reported in (2009) 3 SCC 107 wherein it has been held as under:- “28. Reliance is put to the judgment of the Hon’ble Supreme Court rendered in the case of Rajasthan State Electrical Board vs. Universal Petrol Chemicals Ltd., reported in (2009) 3 SCC 107 wherein it has been held as under:- “28. In the light of the aforesaid facts of the present case, the ratio of all the aforesaid decisions which are referred to hereinbefore would squarely govern and apply to the present case also. There is indeed an ouster cause used in the aforesaid stipulations stating that the courts at Jaipur alone would have jurisdiction to try and decide the said proceedings which could be initiated for adjudication and deciding the disputes arising between the parties with or in relation to the aforesaid agreements through the process of arbitration. In other words, even though otherwise the Courts al Calcutta would have territorial jurisdiction to try and decide such disputes, but in view of the ouster clause it is only the courts at Jaipur which would have jurisdiction to entertain such proceeding.” 4. On the contrary, the learned Senior Counsel for the petitioner submits that in view of clause 25 of the E-tender Notice dated 04.10.2016 read with section 20 of Code of Civil Procedure, 1908, the present work confers jurisdiction to the court where the work is to be executed i.e Raj Mahal Area falling within the State of Jharkhand. It is further argued that the respondents are relying upon Clause 25 of the e-Tender Notice dated 25.05.2016 which is not related to the present dispute. 5. So far the question of jurisdiction of this Court for entertaining the present matter is concerned, I do find substance in the argument of the learned Senior Counsel for the petitioner. Clause 25 of the Instruction to the Bidders as contained in e-Tender Notice dated 04.10.2016, cancellation of which is the subject matter of the present writ petition, specifically provides that the matter relating to any dispute or difference arising out of the said tender and the subsequent contract awarded based on the same shall be subject to the jurisdiction of the District Court where the subject work is to be executed. Since the place of work is within the State of Jharkhand, the present writ petition is maintainable before this court. 6. Since the place of work is within the State of Jharkhand, the present writ petition is maintainable before this court. 6. The learned Senior Counsel for the petitioner submits that the tender process in question is being cancelled time and again by the respondents without any cogent or valid reason which is highly discriminatory and shows malafide on the part of the some of the interested officers of the respondent-ECL. It is further submitted that the respondents took extraneous grounds in the last tender process also for somehow not awarding the tender to the petitioner just to give benefit to their favourites. In the instant tender process also, despite the petitioner being declared as L1, the respondents were sitting tight over the matter, may be due to the reason that their favorite ones again failed to land up as L1. It is also submitted that even if a state instrumentality or a public enterprise has a right and authority to reject the bid of the lowest bidder/L1 or cancel a tender itself, the reason for the same cannot be arbitrary or against the public policy and cannot be at the cost of public money. In the present facts and circumstance, the decision to outsource the work in question was taken after thorough deliberation by the respondents that if the work was done departmentally, the same would cost about 200% more in comparison to outsourcing of same. However, it is beyond comprehension of the petitioner as to how and for what reason the respondents have been cancelling the tenders time and again. In a similar situation, one of the subsidiaries of Coal India Limited i.e. the Northern Coalfields Limited has awarded the work to the L1 despite the fact that the rate quoted by it was higher than the one quoted by L1 of the earlier tender process. It is further submitted that the respondents had also sought explanation about the rate quoted by the petitioner in the tender dated 04.10.2016 which was duly replied by it elaborating various circumstances like rise in price of diesel, delay in commencement of the project etc., however, the respondents without considering the petitioner’s reply, arbitrarily cancelled the said tender. Thus the impugned decision as communicated by the respondent no. 5 also gets vitiated due to non-observance of the principles of natural justice. Thus the impugned decision as communicated by the respondent no. 5 also gets vitiated due to non-observance of the principles of natural justice. It is also submitted that in the minutes of 296th Board meeting of ECL itself, the decision taken in 295th Board meeting has been reiterated wherein, after taking into consideration that the ECL did not have the sufficient departmental capacity to meet the scheduled target, it was decided to advertise the work for outsourcing in which the petitioner was declared as L1. However, in the concluding paragraph of 296th Board meeting, it has been recorded that the tender committee has recommended for cancellation of the tender which is itself contradictory and false. The respondents have consistently changed their stand and have also filed contradictory counter affidavit assigning a new reason for the first time which is not permissible in view of the judgment of the Hon’ble Supreme Court rendered in the case of Mohinder Singh Gill & Another Vs. Chief Election Commissioner, New Delhi & Ors. reported in (1978) 1 SCC 405 . Learned Senior Counsel for the petitioner further submits that after cancellation of the tender dated 04.10.2016, the CVO, ECL made adverse remarks pointing out that the ECL will suffer huge loss if the work is not awarded urgently. The own admission of the respondents is that they have fallen short of about 50% of the fixed target. When ECL has not been able to achieve even 50% of the target for removal of overburden departmentally in the past couple of years, any claim of doing the said job through the departmental resources stands beyond logic and commonsense and is certainly against the public interest putting extra burden on the exchequer resulting into huge loss of public money. The stand of the respondents that they would execute the job departmentally is thus without any substance which is evident from their declining equipment utilization trend in the past couple of years. 7. Per contra, the learned Senior Counsel for the respondent- ECL, apart from the other submissions, emphatically submits that due to changed scenario and likely increase in the mining capacity, it has been decided that the work is to be carried out departmentally and therefore the tender has been cancelled. More than 60% of the work has already been done departmentally and it is not possible at this stage to revive the old tender. More than 60% of the work has already been done departmentally and it is not possible at this stage to revive the old tender. If at all this be done, there has to be a new proposal with demarcated zone to be shown in the plan and after observing due process, which is also to be approved by the competent authority and it will be treated as a new work that too for a different zone. 8. The learned Senior Counsel for the petitioner however controverts the argument of the learned Senior Counsel for the respondent–ECL and submits that the ECL is not capable of doing the present work departmentally. The CVO, ECL, previously, vide his letter dated 14.12.2016 pointed out that the departmental unit rate for execution of the work in question is Rs. 300.00 whereas the outsourcing unit rate of the same is Rs. 104.29 and as such it was decided to outsource the work so as to make proper utilization of the public exchequer. 9. By way of filing I.A No. 5034 of 2018, the petitioner seeks stay of NIT ECL/HQ/CMC/e-tender/348.30 RCML Patch/309 dated 05.06.2018 alleging that the respondents are again outsourcing the part work of the patch in question. The contention of the learned Senior Counsel for the petitioner is that 33% of the work of the earlier tender has been included in the present tender. The action of the respondents suffers from arbitrariness and favoritism as they have been outsourcing the present work contrary to their categorical stand taken in the counter affidavit that they have decided to execute the work departmentally. 10. It is further contended on behalf of the petitioner that the action of the respondents in cancelling the tender twice is most arbitrary and malafide as despite the petitioner emerging as L1 in the tender dated 04.10.2016, the respondents took a stand on oath that they have decided to get the work executed departmentally, whereas the work in question is being outsourced to some other private agency by inviting fresh tender for a part of the said patch with a clear intention to somehow prevent the petitioner from getting the work in question. 11. 11. Refuting the said contention, the learned Senior Counsel for the respondents-ECL submits that the work involved in the tender dated 04.10.2016 is being done departmentally without engaging any additional manpower or purchasing any additional machinery for the said work. The respondents have outsourced the part of the mine based on the project report prepared by CMPDIL, RI-1 and taking into consideration the available departmental capacity to mine. The specific stand of the respondent-ECL is that out of total quantity of cancelled work of 22.43 Million Cubic Metres, the ECL has executed the work to the extent of more than 12 Million Cubic Metres of Over Burden removal by engaging the Department-HEMM and manpower in RCML Patch till 30.06.2018. 12. I have perused the judgments of the Hon'ble Supreme Court relied upon by both the parties dealing with the extent and scope of interference by the Writ Court in the matters of contractual dispute. 13. The law as emerges from different judgments of the Hon’ble Apex Court is summarized as under: i. The award of contract whether by a private body or a public body is a commercial transaction for which the state can choose its own method to arrive at a decision and the same is not amenable to judicial review. However, the court is to confine itself to examine the decision making process on the ground of malafides, unreasonableness and arbitrariness. ii. The State cannot act arbitrarily in entering into relationship, contractual or otherwise with a third party but its action must conform to some standard or norm which is rational and non-discriminatory. iii. The decision of the authority must also been checked on the ground of error of law or the breach of rules of natural justice. iv. If the contract involves no element of public law, the normal course for the aggrieved party is to invoke the remedies provided under ordinary civil law. iv. However, once on the facts of a particular case it is found that nature of the activity or controversy involves public law element then the matter may be examined under Article 226 of the Constitution of India to see as to whether the action of the State or its instrumentality is fair just or equitable. 14. This Court in the case of M/s Aretpl-AT (JV) Vs. M/s Central Coalfields Limited & Ors. 14. This Court in the case of M/s Aretpl-AT (JV) Vs. M/s Central Coalfields Limited & Ors. reported in 2018(3) JLJR 208 after taking into consideration several judicial pronouncements of the Hon'ble Supreme Court in this regard, has held as under: “23. Having gone through the aforesaid judgments of the Hon'ble Supreme Court, it may be construed that there is no absolute bar in entertaining a writ petition in a contractual matter where some disputed question of facts are involved. However, if the dispute involved in a matter is so complex which can only be determined after thorough long drawn adjudicatory process by leading evidences, the writ petition should not be entertained. Each and every case is to be dealt with on its own facts. If the materials on record are clearly evincible, the writ court may exercise the power of judicial review. 24. The power under Article 226 of the Constitution of India is plenary in nature and is not subjected to any of the other provisions of the Constitution. The High Court has discretion to exercise or not to exercise such discretion having regard to the facts of each case. However, the High Courts have imposed self-restraints in such exercise of extraordinary jurisdiction of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” 15. Since the present case relates to the cancellation of tender, I have also gone through few judgments rendered by the Hon’ble Supreme Court relating to the extent of the right of any government agency to cancel the tender vis-à-vis the right of a tenderer insisting acceptance of its bid being the L1. 16. In the case of Union of India & Ors. versus Dinesh Engineering Corporation & Anr. 16. In the case of Union of India & Ors. versus Dinesh Engineering Corporation & Anr. reported in (2001) 8 SCC 491 , it has been held by the Hon’ble supreme Court that though the Railway, under Clause 16 of the Guidelines is entitled to reject any tender offer without assigning any reason and it also has the power to accept or not to accept the lowest offer, but the same does not give any arbitrary power to the Railway to reject the bid offered by a party merely because it has that power, however this is a power which can be exercised on the existence of certain conditions which in the opinion of the Railway are not in its interest to accept the same. 17. In the case of M/s. Erusian Equipment and Chemicals Ltd. Versus State of W.B. and Another, reported in (1975) 1 SCC 70 , the Hon’ble apex court has held that it is true that neither the petitioner nor the respondent has any right to enter into a contract but they are certainly entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. This privilege arises because it is the government which is trading with the public and the democratic form of government demands equality and absence of arbitrariness and discrimination in such transactions. Hohfeld treats privileges as a form of liberty as opposed to a duty. The activities of the government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone but if it does so, it must do so fairly without discrimination and without adopting unfair procedure. 18. In the case of Food Corporation of India Versus M/s. Kamdhenu Cattle Feed Industries, reported in 1993 (1) SCC 71 , the Hon’ble Supreme Court has held as under: “10. From the above, it is clear that even though the highest tenderer can claim no right to have his tender accepted, there being a power while inviting tenders to reject all the tender yet the power to reject all the tenderers cannot be exercised arbitrarily and must depend for its validity on the existence of cogent reasons for such action." 19. In the case of State of Jharkhand & Ors. Vs. In the case of State of Jharkhand & Ors. Vs. M/s CWE-SOMA Consortium reported in 2016 (4) JLJR 18 (SC), the Hon’ble Apex Court has held as under:- “12. In case of a tender, there is no obligation on the part of the person issuing tender notice to accept any of the tenders or even the lowest tender. After a tender is called for and on seeing the rates or the status of the contractors who have given tenders that there is no competition, the person issuing tender may decide not to enter into any contract and thereby cancel the tender. It is well settled that so long as the bid has not been accepted, the highest bidder acquires no vested right to have the auction concluded in his favour (vide Laxmikant and Ors. Vs. Satyawan and Ors. (1996) 4 SCC 208 ; Rajasthan Housing Board and Anr. Vs. G.S Investments and Anr. (2007) 1 SCC 477 and Uttar Pradesh Avas Evam Vikash Parishad and Ors. Vs. Om Prakash Sharma (2013) 5 SCC 182 .).” 20. In the case of Rajasthan Housing Board and Another Vs. G.S. Investments and Another reported in (2007) 1 SCC 477 the Hon’ble Supreme Court has held as under:- “9. This being the settled legal position, the respondent acquired no right to claim that the auction be concluded in its favour and the High Court clearly erred in entertaining the writ petition and in not only issuing a direction for consideration of the representation but also issuing a further direction to the appellant to issue a demand note of the balance amount. The direction relating to issuance of the demand note for balance amount virtually amounted to confirmation of the auction in favour of the respondent which was not the function of the High Court.” 21. On perusal of all the aforesaid judgments, it would emerge that the lowest/highest bidder, as the case may be, has no vested right to be awarded the tender, however the decision of the authority must be supported by cogent reason and should not suffer from arbitrariness. 22. In the case of Haryana Urban Development Authority & Others v. Orchid Infrastructure Developers (P) Ltd., reported in (2017) 4 SCC 243 , the Hon’ble Supreme Court has held as under:- “13. 22. In the case of Haryana Urban Development Authority & Others v. Orchid Infrastructure Developers (P) Ltd., reported in (2017) 4 SCC 243 , the Hon’ble Supreme Court has held as under:- “13. It is settled law that the highest bidder hors no vested night to have the auction concluded in his favour The Government or its authority could validly retain power to accept or reject the highest bid in the interest of public revenue. --------- 28. This Court in State of UP V. Vijay Bahadur Singh has laid down that there is no obligation to accept the highest bid the Government is entitled even to change its policy from time in time according to the demands of the time.--- 29. In Laxmikant v. Satyawan, this court has laid down that in the absence of completed contract when the public auction had not culminated to its logical end before confirmation of the bid, no night accrued to the highest bidder. ------ 30. In Meerut Development Authority v. Assn. of Management Studies, this Court has laid down that a bidder has no right in the matter of bid except of fair treatment in the matter and cannot insist for further negotiation. The authority has a night to reject the highest bid. This Court has laid down thus: (SCC p. 182, paras 27 & 29) "27. The bidders participating in the tender process have no other right except the night to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. ********** 29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrariness or favouritism." 23. In the case of Ramchandra Murarilal Bhattad & Ors. v. State of Maharashtra & Ors., reported in (2007) 2 SCC 588 , the fact was that the tender was cancelled by the State authorities on the ground that they had decided to set up the Convention Centre on their own without any private participation. The said decision was challenged by the Company who offered highest bid price before the High Court but its case was dismissed. The said matter on being taken to the Hon'ble Supreme Court, their Lordships have held as under: “53. In this case, the highest offer has not been rejected. A new policy decision has been taken. Question as noticed herein is not as to whether the offer of the appellants should have been rejected but is as to whether the Authority in law could have altered its policy in regard to disposal of its properties. "Public trust doctrine" was also sought to be invoked by Mr. Nariman against the Authority and in this behalf reliance has been placed on Bangalore Medical Trust v. B.S. Muddappa. This Court therein was dealing with a master plan in the light of justifiability of exercise of discretionary jurisdiction under the Town Planning Act. Having regard to the provisions contained in sub-section (4) of Section 19 of the Bangalore Development Authority Act, 1976 as also the fact that the discretionary jurisdiction had been arbitrarily exercised, this Court invoked the "public trust doctrine" saying that although the State is required to keep a vigil on the local body, but, thereby the power thereunder cannot be stretched so as to entitle the Government to alter any scheme and convert any site or power specifically reserved in the statute in the Authority. 58. We have noticed hereinbefore that power has not been exercised by the Executive Committee in rejecting the tender. The power has been exercised by the Authority in canceling the tenders so as to enable it to have a re look of the entire project. 59. Some reasons may be required to be assigned for rejecting the bid, but in the instant case, in our opinion, no reason was required to be assigned as there has been a change in the policy decision. 61. 59. Some reasons may be required to be assigned for rejecting the bid, but in the instant case, in our opinion, no reason was required to be assigned as there has been a change in the policy decision. 61. It may be true that the Authorities at one point of time, as was disclosed in the Counter Affidavit, had thought of setting up a Convention Centre of their own and without any private participation, but only because there has been a deviation from said stand would not, in our considered opinion, render the entire policy decision vitiated in law.” 24. It thus emerges that even after inviting the bid, if the authority changes its policy decision, the same cannot be challenged by the highest/lowest bidder, as the case may be, claiming vested right for award of the work in its favour. The thrust of the argument of the learned Senior Counsel for the petitioner is that the respondents have floated a new tender wherein about 33% of the present work is also involved. However, the respondent-ECL has disputed the said statement of the petitioner. It is a well settled principle of law that the disputed question of fact is not to be decided under the writ jurisdiction of the High Court. Moreover, it reveals that the policy decision of ECL was acted upon by the respondents and more than 60% of the work has been done departmentally. Even if the fact as stated by the petitioner is treated to be true, in view of the judgment rendered in the case of Ramchandra Murarilal Bhattad (supra), it is not the sufficient ground seeking interference of this court under writ jurisdiction. 25. The learned Senior Counsel for the petitioner has also contended that in the 296th Board meeting of the respondent-ECL, without recording reason for deviating from the earlier decision taken in the 295th Board meeting, it was resolved to cancel the present tender. 25. The learned Senior Counsel for the petitioner has also contended that in the 296th Board meeting of the respondent-ECL, without recording reason for deviating from the earlier decision taken in the 295th Board meeting, it was resolved to cancel the present tender. It has further been contended that reason for cancelling the tender has been supplemented by the respondents by filing the counter and supplementary counter affidavits which is not permissible in view of the judgment rendered by the Hon'ble Supreme Court in the case of Mohinder Singh Gill (Supra.) wherein it has been held that if a statutory functionary makes an order, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. 26. To appreciate the contention of the petitioner, I have gone through the contents of 296th Board meeting of ECL, the relevant part of which is quoted herein below for ready reference. (1) After the accident at Dahernangi Patch, coal cannot be extracted from the Patch in 2016-17 and about 5-7 M Te of coal would be available in this Patch as on 31.03.2017. OB would be removed by M/S MIPL-NKAS (IV) for this 5-7 M Te of coal at Dahernanagi Patch. After removal of the batter part all along Bhadotola village, 11.50 M Te of coal is available against removal of 12.00 M Cum of OB and coal can also be exposed at a stripping ratio of 1.63 from Taljhari/Bansdiha village. Hence, for 2017-18 against OB removal of 24.00 M Cum of OB, availability of coal would be 5.00 M Te from Dahernaangi Patch, 11.50 M Te from Bhadotala village and 7.36 M Te (i.e 1200/1.63) from Taljhari/Bansdiha village, i.e. Total 23.86 M Te out of which 17 M Te would be extracted in 2017-18 and remaining 6.86 M Te would be extracted in 2018-19. Further in 2018-19, combined capacity of 24.00 M Cum of OB removal would expose 14.72 (i.e 24.00/1.63) M Te of coal. Thus, total coal availability in 2018-19 would be (14.72+46.86) 21.58 M Te. It is expected that by this time in 2018-19, departmental capacity would be increased by procurement & commissioning of equipment against replacement. Hence in the changed scenario, OB outsourcing is not required. Thus, total coal availability in 2018-19 would be (14.72+46.86) 21.58 M Te. It is expected that by this time in 2018-19, departmental capacity would be increased by procurement & commissioning of equipment against replacement. Hence in the changed scenario, OB outsourcing is not required. (2) ----- (3) Clause No. 34 of the NIT provides that the Company does not bind itself to accept the lowest tender and reserves the right the reject any or all the tenders without assigning any reasons whatsoever and to split up the work between two or more tenderers or accept the tender in part and not in its entirety. Hence, the Tender Committee to reject the tender in view of the changed scenario. The bidder extended the bid validity for 3 months w.e.f 21.02.2017. 27. On perusal of the content of the 296th Board meeting, it would appear that the tender committee has taken into consideration the changed scenario of “Raj Mahal Patch” after an accident occurred in “Dahernangi Patch”. In the said meeting, the tender committee mathematically calculated the available coal as well as the departmental capacity and decided to do the work departmentally. The tender committee after going through the decision taken in the 295th Board meeting has recommended that due to changed scenario, the work should now be executed departmentally. The argument of the learned Senior Counsel for the petitioner is that the respondents have supplemented the reason subsequently by filing counter and supplementary counter affidavits in the present case has thus no substance and as such, the judgment of Mohinder Singh Gill (supra.) has no application in the facts and circumstance of the present case. 28. Even if it is assumed that the respondent- ECL fell short of target but that would not itself indicate the arbitrariness in the decision making process of the ECL. It is not the case of the petitioner that the work has been awarded to any other tenderer ignoring the lowest bid of the petitioner, rather the fact of the case reveals that due to changed circumstance, the ECL resolved to execute the work departmentally which has now been completed to the extent of about 60% by using its own resources as per the averment of the respondent no. 5 made in the second supplementary counter affidavit dated 10.08.2018 and the said fact has not been specifically controverted by the petitioner by filing any reply to it. I thus find substance in the argument of the learned Senior Counsel for the respondent-ECL that by now the scope of the tender in question has ceased both technically and logically. I have also gone through the judgment of the Hon'ble Supreme Court rendered in the case of Chhattisgarh State Industrial Development Corporation Limited and Another Vs. Amar Infrastructure Limited and others reported in 2017 (5) SCC 387 wherein Their Lordships have observed that where the work gets completed departmentally up to 50%, the High Court should not interfere with such decision. 29. Further argument of the learned Senior Counsel for the petitioner is that the impugned decision suffers from the violation of the principles of natural justice. However, on perusal of the record, it appears that the contract had not been concluded in favour of the petitioner till the 296th Board meeting of ECL, thus no vested right accrued to the petitioner to be awarded the work in its favour. In the case of Abdul Yakub Vs. State of Orissa reported in AIR 1975 Orissa 202, a full Bench of Orissa High Court has held that a contractor gets no right till the rectification order is communicated to him and a formal agreement is executed. Moreover, Clause 33 of the present NIT gives discretion to the ECL to cancel the bid of all or any tenderer without assigning any reason. Thus before participating in the tender, the petitioner was fully aware of the said terms of the NIT which cannot be challenged subsequently except for exceptional reasons. 30. The decision of the Tender Committee reveals that the tender has been rejected on the ground of the changed scenario, not on the ground on which the clarification about the rate was sought from the petitioner and therefore the argument of the learned Senior Counsel for the petitioner that without taking any decision on the explanation submitted by the petitioner, the respondents have arbitrarily rejected the bid, has no leg to stand and thus fit to be rejected. Rather, the action of the respondents reflects that there has been due application of mind by the concerned authorities of the respondent-ECL in cancelling the tender which cannot be said to be illegal, arbitrary or sans reason. 31. In view of the aforesaid discussion, the present writ petition having no merit is accordingly dismissed. 32. I.A. No. 3674 of 2018 and I.A. No. 5034 of 2018 also stand disposed of accordingly.