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2020 DIGILAW 333 (GAU)

Hi-tech Construction And Co. v. Chief Secretary, Govt. Of Nagaland

2020-03-04

AJAI LAMBA, SOUMITRA SAIKIA

body2020
JUDGMENT Ajai Lamba, CJ. - M/s Hi-Tech Construction & Company, and another have preferred this writ appeal directed against order dated 27.02.2020 passed at interim stage of proceedings of Writ Petition (C) No.249 of 2019 (Kohima Bench). 2. The bare minimum facts required to address the issue appear to be that a tender was floated for five works. The issue relates to Work No.3. A joint venture comprising of three persons, namely M/s Hi-Tech Construction & Company; M/s Vertex Construction and M/s Multi Builders were the lowest tenderers for work No.3. The tender, however, was cancelled vide order dated 16.12.2019. 3. Two writ petitions were filed, however, only at the instance of M/s Hi-Tech Construction & Co., one challenging the order dated 16.12.2019 (supra) for issuance of Writ in the nature of Certiorari; and the other challenging the retender process initiated in regard to the same work. In the present lis, this Court is concerned with the Writ of Certiorari. Vide order dated 23.01.2020, while noticing the urgency in the matter and the public interest, the learned Single Judge directed maintenance of status-quo in respect of the works mentioned in tender cancellation corrigendum dated 16.12.2019. The matter was adjourned to 14.02.2020. 4. Vide order dated 14.02.2020, it was discerned that address of the writ petitioners/writ appellants would confine to order dated 16.12.2019 i.e. the third work and not the other works. 5. It appears that vide the order dated 27.02.2020, which has been impugned by virtue of this writ appeal, the interim direction has been vacated. In that regard, we would like to extract paras-9 and 10 from impugned order dated 27.02.2020 : '9. Having considered the fact that it was the Joint Venture which had participated in the tender process initiated vide NIT dated 13.09.2019 in respect of construction of road from 'Tenning to Lekie in Nagaland' and the Joint Venture comprising of 3(three) parties/individuals, namely; M/s Vertex Construction, M/S Multi Builders and the petitioner M/s Hi-Tech Construction & Co. being not before this Court, this Court, prima-facie, is of the view that this writ petition would not be maintainable at the instance of only one party/individual of the Joint Venture, namely, M/S Hi-Tech Construction & Co. alone, inasmuch as, it was the Joint Venture as one entity which had participated in the tender process, pursuant to NIT dated 13.09.2019. 10. alone, inasmuch as, it was the Joint Venture as one entity which had participated in the tender process, pursuant to NIT dated 13.09.2019. 10. In that view of the matter and also having regard to the public interest involved with regard to the timely completion of the project in question, I am of the considered view that the writ petitioner have not made out any prima-facie case for continuation of the interim order passed by this Court on 23.01.2020. Accordingly, this Court is of the view that the interim order dated 23.01.2020 in respect of construction of road from 'Tenning to Lekie in Nagaland' needs to be vacated while granting an opportunity to the writ petitioner to file affidavit-in- reply to the additional affidavit filed by the State on 25.02.2020. It is ordered accordingly.' 6. It is not in dispute that although a joint venture of three persons had competed for the project and were successful, however, only one of them has filed the writ petition. Maintainability of writ petition itself is a question to be determined. 7. Mr. N. Dutta, learned senior counsel assisted by Mr. N. Sarkar has contended that remedial steps would be taken for curing the defects. It is a defect, which is curable. Interest of all the three participants in the tender process is common. It has been pleaded that since the matter is ripe for hearing and 09.03.2020 is the next date of listing, the Writ Court be requested to dispose of the matter at the earliest so that the rights of the writ petitioners are not frustrated. It has been highlighted that ex-facie the order of cancellation of the tender is illegal and unreasonable and, therefore, in the exercise of judicial review, even in contract matter, it is required to be interfered. 8. Considering the various aspects of the case, we hereby dispose of this writ appeal with a request to learned Writ Court to dispose of the matter on 09.03.2020, or at the earliest thereafter. The issue of curing the defect in the writ would depend on filing of the application by the applicants/writ petitioners; and the laws governing the issue in regard to which the writ court would adjudicate and decide. It is not for this Court to comment on the issue.