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2021 DIGILAW 491 (GAU)

I. Yanger Jamir v. State of Nagaland

2021-08-17

S.HUKATO SWU

body2021
JUDGMENT S. HUKATO SWU, J. 1. Heard learned counsels for the petitioner Mr. Imti Longjem assisted by Ms. Esther, learned counsel for the petitioner, learned counsel Mr. Sentiyanger for the respondent Nos. 2, 3, 4 and 5, learned Addl. Senior Government Advocate Mr. Moa Imchen appears for the respondent No. 6 and learned counsel Mr. Tongpok Pongener appears for the respondent No. 7. 2. The crux of the matter in the present writ petition is related to the award of to the petitioner by respondent No. 6 by a Work Order No. HR/EE/HD-III/NEC/PHM/2017-18, dated 07.06.2018 to the petitioner's firm. The work is for the Post Harvest Management of Horticulture Crops at Mokokchung, Dimapur, Wokha, Peren, Tuensang and Phek. A contract agreement to the effect was executed on 11.06.2018. 3. The work relates to the project for Post Harvest Management of Horticulture Crops (Cold Rooms, Pack Rooms (Marketing Infrastructure) in Dimapur, Mokokchung, Peren, Tuensang, Phek and Wokha districts. The NEC under the Government of India, Ministry of DONER by letter No. NEC/AGRI/PH/NG/2015, dated 28.12.2017 gave administrative approval of Rs. 717.90 lakh (Rupees seven crores seventeen lakhs and ninety thousand) only. As per the said approval order, project is to be implemented by the Small Farmers Agri-Business Consortium Nagaland Abbreviated as (SFACN). 4. The incidents leading to the petitioner being awarded the work order was by a Notice Inviting Tender in the Notice Board affixed by respondent No. 6 in letter No. HR/EE/HD III/NEC/PHM/2017-18, dated 21.04.2018 inviting all registered PWD 1st Class Contractors to participate in the bid. Three bidders participated in the said bid out of which one was found to be invalid and the petitioner was selected being the lowest bidder. The comparative statement was approved and returned by the Office of the Chief Engineer PWD (H) to the respondent No. 6, vide letter NO. CE (H)/TB/HORTI/NEC/2018-405, dated 06.06.2018. Thereafter, completing all formalities the petitioners' firm was awarded the Work Order No. HR/EE/HD-III/NEC/PHM/2017-18, dated 07.06.2018. 5. However, the Managing Director of the SFACN who was also the Principal Secretary of Horticulture Department by Work Order No. NL/SFAC-20/NEC/2017-18, dated 19.03.2018 awarded the work to the respondent No. 7. By corrigendum No. NL/SFAC-20/NEC/2017-18, dated 11.06.2018, the work order issued in favour of the petitioner dated 19.03.2018 was superseded. 5. However, the Managing Director of the SFACN who was also the Principal Secretary of Horticulture Department by Work Order No. NL/SFAC-20/NEC/2017-18, dated 19.03.2018 awarded the work to the respondent No. 7. By corrigendum No. NL/SFAC-20/NEC/2017-18, dated 11.06.2018, the work order issued in favour of the petitioner dated 19.03.2018 was superseded. The Managing Director of SFACN and Principal Secretary of Department of Horticulture thus awarded the entire contract for Post Harvest Management of Horticulture Corps (Cold rooms, Pack Houses, Marketing Infrastructure) in the districts of Dimapur, Mokokchung, Peren, Tuensang, Phek and Wokha to respondent No. 7 by bringing out corrigendum. The contractual amount was for a sum of Rs. 7,17,90,000/- (Rupees seven crores seventeen lakhs and ninety thousand) only. But the record shows that the DPR had not even been approved at the relevant time. 6. The work order was issued in favour of respondent No. 7 without floating/issuing any Notice Inviting Tender. For the stated facts, the contract awarded to the respondent No. 7 is absolutely arbitrary and illegal. 7. The petitioner challenged the work order dated 19.03.2018 and corrigendum dated 11.06.2018, issued in favour of respondent No. 7 by filing W.P.(C) No. 154 (K) of 2018. By an order dated 20.08.2018, this Court had issued notice upon the respondents and stayed the work order dated 19.03.2018 and corrigendum dated 11.06.2018. In that writ petition, Secretary of Agriculture and Co-operation, the Secretary to the Ministry of Development of North Eastern Region and the Secretary, NEC were arrayed as respondents No. 1, 2 and 3. However, they filed their affidavit-in-opposition on 26.03.2019, stating that they were sanctioning authority and also had released the sanction to the State Government, therefore, if any irregularities arises in the execution, the matter was between the State Government and the Executing and Implementing Agencies. They had prayed for deleting their names from the array of respondents. The Principal Secretary, Department of Horticulture was arrayed as respondent No. 7. Mr. M.K. Mero who was the then Principal Secretary of Horticulture in his affidavit stated that NIT dated 21.04.2018 was not published in any newspaper but was displayed in the notice board. He also stated that the Department received the documents of three tenderers including the tender bid of the petitioner's firm. The affidavit further states that as per sanction letter of the Ministry of DONER, dated 28.12.2017, the SFACN is the competent implementing agency/department. 8. He also stated that the Department received the documents of three tenderers including the tender bid of the petitioner's firm. The affidavit further states that as per sanction letter of the Ministry of DONER, dated 28.12.2017, the SFACN is the competent implementing agency/department. 8. The Agriculture Production Commissioner who is also the Chairman of the SFACN was arrayed as respondent No. 6. The Managing Director of the SFACN, Shri. Alan Gonmei, IAS who issued the work order dated 19.03.2018 in the capacity of Managing Director, SPACN were arrayed as respondent No. 9 and respondent No. 14 in the aforesaid petition. Normal project were executed under 90:10 funding pattern. However, it was informed by the NEC that 100% grant-in-aid would be given if the project is implemented through the society, therefore the SFACN was made the implementing agency. It is also stated in the administrative approval given by the NEC vide their letter dated 28.12.2017 only the SFACN can implement the project. The Directorate of Horticulture did not have the authority to issue NIT or implement the project. Therefore, the NIT dated 07.06.2018 issued in favour of the petitioner's firm is not valid in the eye of the law. SFACN was the implementing authority/agency of the project, it rightly issued work order to M/s. Imlitulok Imsong for execution of the work. It was also mentioned that upto 40% of the work was completed by the time this Court had issued stay on 20.08.2018. It was stated that the work was suspended because of the complaint filed by the petitioner before the Vigilance & Anti Corruption Commission, but by then 40 to 50% of the work had been completed. 9. The petitioner filed an I.A. application for impleading District Horticulture Officers of Dimapur, Mokokchung, Peren, Tuensang, Phek and Wokha in the aforesaid I.A. application. By an order dated 14.05.2019, the same was rejected. This Court had also directed the State to file an affidavit mentioning whether NIT dated 21.04.2018 was floated/published in the newspaper and to indicate the persons who tendered their bids in pursuance of the said NIT. It was also directed that clarification should be filed as to who is the competent implementing agency/department for the allotment of the work in question. It was also directed that clarification should be filed as to who is the competent implementing agency/department for the allotment of the work in question. The respondent No. 15 in the aforesaid petition and presently respondent No. 7 filed an application which was registered as I.A. (Civil) No. 130/2019 for vacating the interim order dated 20.08.2019. By an order dated 13.12.2019, the interim order was vacated by the operation of Article 226(3). 10. The counsel for the petitioner in the aforesaid writ petition expressed his difficulty in pursuing the matter and gave his consent for any advocate to take up the matter by a letter dated 18.01.2020 which was placed before this Court and sought time to make alternative arrangement. By an order dated 30.01.2020, this Court directed the learned counsel to file an affidavit to that effect within two weeks that he was withdrawing from the case. However, the learned counsel instead by filing an affidavit of his withdrawal from the case withdrew the case with a liberty to file a fresh. This was without the consent of the petitioner and also against the directive of this Court. The W.P.(C) No. 154(K) of 2018 was dismissed with a liberty to file a fresh by an order dated 19.02.2020. There was no alternative but to find a fresh lawyer to represent the petitioner. The consultation and engaging a fresh lawyer took some time. In the meantime, the petitioner had to undergo eye surgery and could only return from New Delhi on 18.03.2020. Furthermore, the pandemic situation added to the delay in filing the present petition. The order of this Court dated 30.01.2020 and 19.02.2020 are reproduced below for clarifying the facts narrated. "Mr. Moa Jamir, learned counsel makes a submission on behalf of Mr. Imti Lonchar, learned counsel for the petitioner. He submits that Mr. I. Imti Lonchar, on account of some person difficulty wishes to withdraw from the case. He further submits that Mr. I. Imti Longchar, therefore, he handed over the case brief back to the petitioner, i.e. Mr. I. Yanger Jamir. In this connection, the learned counsel has produced a letter of withdrawal signed by Mr. I. Imti Longchar dated 18.01.2020. Considering the above submission and the withdrawal letter dated 18.01.2020, the learned counsel, Mr. I. Imti Longchar shall file an affidavit stating that he has withdrawn from his case. I. Yanger Jamir. In this connection, the learned counsel has produced a letter of withdrawal signed by Mr. I. Imti Longchar dated 18.01.2020. Considering the above submission and the withdrawal letter dated 18.01.2020, the learned counsel, Mr. I. Imti Longchar shall file an affidavit stating that he has withdrawn from his case. Let such affidavit be filed within 2(two) weeks. List this case again after 2(two) weeks." "Heard Mr. Supongwati Walling, learned counsel on behalf of Mr. I. Imti Longchar, learned counsel for the petitioner. Also heard Mr. Z. Kulnu, learned counsel for the respondents No. 1, 2 & 3; Mr. N. Angami, learned State counsel for the state respondents No. 4, 5, 7, 8 & 10 to 13; Mr. Akin, learned counsel for the respondents No. 6, 9 & 14 as well as Mr. S. Reopi, learned counsel for the respondent No. 15. Mr. Supongwati Walling, learned counsel for the petitioner, on instruction seeks to withdraw the writ petition with a liberty to file a fresh writ petition. The writ petition stands dismissed on withdrawal with a liberty granted to the petitioner to approach this Court again, if so advised." The respondents have responded with preliminary objections, that the present writ petition has been filed with unclean hands, and that it suffers from latches and delay. Learned counsel for the petitioner, Mr. Imti Longjem has placed reliance upon the case of Tukaram Kana Joshi & Others-versus-Maharashtra Industrial Development Corporation & Others, reported in (2013) 1 SCC 353 , paragraphs-12, 13 & 14. "12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the party's defence must be tried upon principles substantially equitable. (Vide: P.S. Sadasivaswamy v. State of T.N. : AIR 1974 SC 2271 ; State of M.P. & Ors. v. Nandlal Jaiswal & Ors., AIR 1987 SC 251 ; and Tridip Kumar Dingal & Ors. v. State of West Bengal & Ors., : (2009) 1 SCC 768 ;) 14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the Petitioners. (Vide: Durga Prasad v. Chief Controller of Imports and Exports & Ors., : AIR 1970 SC 769 ; Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., : AIR 1987 SC 1353 ; Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur & Ors., : AIR 1993 SC 802 ; Dayal Singh & Ors. v. Union of India & Ors., : AIR 2003 SC 1140 ; and Shankara Co-op Housing Society Ltd. v. M. Prabhakar & Ors., : AIR 2011 SC 2161 )." The delay caused was not intentional nor the delay so un-condonable that the petitioner rights could be defeated. The objection raised on the issue of coming to the Court with unclean hands is also not sustainable, if there were suppressions it should be a material one which would have effect on the merit of the case. The question before us is whether the provisions of Article 14 of the Constitution has been violated. The issues, that the petitioner did not divulge that 2nd installment has been released, or that the petitioner had approached the respondents for work does not at all effect the merit of the case. The case relied upon is; S.J.S. Business Enterprises (P) Ltd. -versus-State of Bihar & Others, reported in : (2004) 7 SCC 166 . The Apex Court at paragraph-13 observes; "13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. The Apex Court at paragraph-13 observes; "13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the Court, whatever view the Court may have taken. Thus when the liability to Income Tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact the suppression of which disentitled her from the relief claimed. Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order." Therefore, the allegation of coming to Court with clean hands has no substance. The respondents have attempted to show that the works were almost completed, however, the said work has been stopped by the investigation by the Lokayukta and also by the order of this Court. Therefore, the projection made by the private respondent No. 7 is subject to much doubt. The decision of our own High Court is clear in such cases of Yikhyao Lotha-versus-State of Nagaland & Others, reported in 2014(4) GLT 871, paragraphs-44 to 47. "44. Therefore, the projection made by the private respondent No. 7 is subject to much doubt. The decision of our own High Court is clear in such cases of Yikhyao Lotha-versus-State of Nagaland & Others, reported in 2014(4) GLT 871, paragraphs-44 to 47. "44. Unfortunately, in the instant case, the work in question was settled with the respondent No. 5 in total violation of all the Rules and procedures holding the field. More importantly, such settlement was done in a hush-hus manner. All these shows that the work aforesaid was settled with the respondent No. 5 by the State respondents in most arbitrary and illegal exercise of authority. 45. Being so, despite the scope of judicial review being very limited over the contractual dispute, in my firm opinion, this is a case where this Court needs to rise to the occasion in order to correct some illegality of enormous proportion in settling the work under consideration in favour of respondent No. 5. 46. I have already found that 70% of the work had already been executed when the proceeding in hand was instituted. In normal circumstances, the writ court would have rejected a proceeding under Article 226 of the Constitution on such count alone. However, in the facts and circumstances, which are narrated herein before, this Court find it necessary not to dismiss the present proceeding despite 70% of the work in question being executed on the date of institution of proceeding in hand. 47. In the result, the work order in question is set aside and quashed. However, since about 70% of the work has already been completed, I find it necessary to direct the State respondents to measure the work already done, and then to issue fresh NIT in respect of the remaining works and to bring such tender process to its conclusion in accordance with the relevant rules and procedures as early as possible but in no case beyond 2 months from the date of receipt of a certified copy of this order." Since there is flagrant violation of the norms and violation of Article 14 direction for measuring the work already done is called for. A fresh NIT should be issued for the remaining works. Learned counsel argues that there has been violation of Article 14 and the action of the State respondents requires interference. A fresh NIT should be issued for the remaining works. Learned counsel argues that there has been violation of Article 14 and the action of the State respondents requires interference. Reliance is placed upon the case of Nagar Nigam, Meerut-versus-Al Faheem Meat Exports (P) Ltd. & Others, reported in : (2006) 13 SCC 382, para-12, 13, 14 & 18. "12. In this case, however, we are concerned with a different question. It is now a well settled principle of law that having regard to the provisions of Article 14 of the Constitution of India, a State within the meaning of Article 12 thereof cannot distribute its largesse at its own sweet will, vide R.S. Shetty vs. Union of India, : AIR 1979 SC 1628 . The Court can ensure that the statutory functions are not carried out at the whims and caprices of the officers of the government/local body in an arbitrary manner. But the Court cannot itself take over these functions. 13. This Court time and again has emphasized the need to maintain transparency in grant of public contracts. Ordinarily, maintenance of transparency as also compliance of Article 14 of the Constitution would inter alia be ensured by holding public auction upon issuance of advertisement in the well known newspapers. That has not been done in this case. Although the Nagar Nigam had advertised the contract, the High Court has directed that it should be given for 10 years to a particular party (respondent No. 1). This was clearly illegal. 14. It is well settled that ordinarily the State or its instrumentalities should not give contracts by private negotiation but by open public auction/tender after wide publicity. In this case the contract has not only been given by way of private negotiation, but the negotiation has been carried out by the High Court itself, which is impermissible." Learned counsel has therefore argued that Article 14 and 21 of the Constitution has been violated while granting contract work in question to the respondent No. 7. The work order dated 19.03.2018 and corrigendum dated 11.06.2018 are absolutely illegal and liable to be set aside and quashed. He has therefore prayed that the work order No. NL/SFAC-20/NEC/2017-18, dated 19.03.2018 and corrigendum No. NL/SFAC-20/NEC/2017-18, dated 11.06.2018 be quashed and set aside. The work order dated 19.03.2018 and corrigendum dated 11.06.2018 are absolutely illegal and liable to be set aside and quashed. He has therefore prayed that the work order No. NL/SFAC-20/NEC/2017-18, dated 19.03.2018 and corrigendum No. NL/SFAC-20/NEC/2017-18, dated 11.06.2018 be quashed and set aside. Further prayer is that the State respondents be directed to measure the work already completed and thereafter issued fresh NIT in accordance with law for the remaining works under project for Post Harvest Management of Horticulture Crops sanctioned by NEC vide letter No. NEC/AGRI/PH/NG/2015, dated 28.12.2017. 11. Appearing for the respondent No. 7, learned counsel Mr. Tongpok Pongener raised serious objections on the maintainability of the writ petition on the ground that; (i) The petitioner has come before the Court with unclean hands. (2) That the instant petition is liable to be dismissed for delay and latches on the part of the petitioner. (3) That the present writ petition deserves to be dismissed because the petitioner is engaged in continuous abuse of the process of law. (4) The petitioner having recourse to alternative remedy by filing a complaint before the Vigilance & Anti Corruption Commission which is pending in R.C. No. 2/2018, he cannot file the instant petition. Earlier writ petition W.P.(C) No. 154/2018 filed by the petitioner was permitted to be withdrawn with liberty to file a fresh on 19.02.2020. The petitioner filed the subsequent writ petition only on 24.08.2020. The allegation is that the petitioner was fence watching to see whether the North East Council (NEC) would sanction and release the second and the final installment of the project. Six months lapsed but the petitioner did not file his subsequent writ petition. When the NEC by letter No. BEC/AGRI/PH/NG/4/2015, dated 05.08.2020 released the 2nd and the final installment, the petitioner filed the subsequent writ petition on 24.08.2020. The petitioner under para-25 of the writ petition stated that "it is reliably learnt that apart from the first installment released vide sanction letter dated 28.12.2017, the NEC, has not released any amount thereafter." The petitioner had full knowledge of the release of the final installment. His letter dated 21.10.2020 to the Agriculture Production Commissioner and Commissioner & Secretary to the Government of Nagaland testifies that he had used the instant writ petition to pressurize the authority to award him the contract. His letter dated 21.10.2020 to the Agriculture Production Commissioner and Commissioner & Secretary to the Government of Nagaland testifies that he had used the instant writ petition to pressurize the authority to award him the contract. Interim order dated 20.08.2018 kept extending and the work being time bound project there was indication that the NEC would let the project lapse and would not sanction the 2nd and final installment at all. Under such circumstances, the respondents were compelled to file I.A. No. 130/2019 praying for the vacation of the interim order dated 20.08.2019. This Court by an order dated 13.12.2019 was pleased to vacate the interim order dated 20.08.2019. The respondents thereafter resumed the works and utilization certificate was communicated to the NEC. The NEC officials visited the work site and GPS mapping of the sites were finalized. The petitioner only chose to file the instant writ petition after the NEC came out with the Approval and sanction letter dated 05.08.2020. The petitioner also suppressed the fact that he had filed a complaint in the Vigilance & Anti Corruption Commission and that the representative of the respondent No. 7 was charged as an accused in R.C. No. 2/2018. The representative was compelled to file a Criminal Revision Petition No. 7/2020 and this Court was pleased to suspend the proceedings of R.C. No. 2/2018. By the order dated 23.03.2021 this Court dismissed and closed the petition. The petitioner has therefore made false statements while approaching this Court. 12. With regard to the allegation that the petitioner was denied of the contract work, the NEC in its letter was specific that the SFACN will be the implementing agency and responsible for the implementing of the project. Approval letter dated 28.12.2017 releasing Rs. 241.30 lakhs clearly has such directions. The Executive Engineer, Directorate of Horticulture prepared the Detailed Project Report and submitted to the Chief Engineer, PWD, (Housing). Therefore, the work was awarded to the petitioner's firm M/S. C & Y Trading & Co. All these process are illegal and void ab initio as the appropriate implementing authority was totally in the dark. 13. Even assuming but not admitting that the Executive Engineer, Directorate of Horticulture had the authority to take the steps; still selection and award of the contract word to the petitioner's firm would be invalid as the selection process was conducted surreptitiously through the "Table Tender". 13. Even assuming but not admitting that the Executive Engineer, Directorate of Horticulture had the authority to take the steps; still selection and award of the contract word to the petitioner's firm would be invalid as the selection process was conducted surreptitiously through the "Table Tender". NIT was not published in the prescribed manner. Facts leading to the withdrawal of the writ petition should also be taken with a grain of salt. The petitioner could have appointed any counsel to file the power of attorney. But he chose not to do. Despite the pandemic restrictions the Court was conducting business as usual and the petitioner could have filed the writ petition, however, the petitioner had other intentions and refrained to do so. He wanted to ascertain that the second and final installment of the project was released by the NEC before filing the writ petition, so that he could derive benefit out of the writ petition. 14. The petitioner's statement that the NEC has not released further installment at the time of filing the writ petition is a blatant lie. The final installment of the project was released by the NEC vide letter dated 05.08.2020 and the writ petition was subsequently filed on 24.08.2020. The fact that the petitioner knew about the release of the final installment is testified by his application dated 21.10.2020 pressurizing the Agriculture Production Commissioner and Commissioner & Secretary to the Government of Nagaland to award him the work order in respect of the project. The petitioner's statement that the Lokayukta had stopped the work pursuant to the complaint filed by the petitioner is not true. FIR was filed on 06.10.2018 and registered as R.C. No. 02/2018 but there was no Lokayukta. The fact is that the work was stopped by the interim order of this Court dated 20.08.2020 in W.P. (C) 154 (K) of 2019 and the same was vacated by an order dated 13.12.2020 in I.A. (Civil) No. 130/2019. Therefore, the respondents resumed the work having no legal obstacle. 15. Charge sheet named Lt. Andrew Toyino an accused. Lt. Andrew Toyino was the lawful attorney of the petitioner who preferred the Criminal Revision Petition 7/2020 however, the revisionist expired on 17.02.2021. Therefore, the revision petition was closed and dismissed. The petitioner took recourse to other alternative remedy and therefore the instant writ petition is liable to be dismissed with costs. Charge sheet named Lt. Andrew Toyino an accused. Lt. Andrew Toyino was the lawful attorney of the petitioner who preferred the Criminal Revision Petition 7/2020 however, the revisionist expired on 17.02.2021. Therefore, the revision petition was closed and dismissed. The petitioner took recourse to other alternative remedy and therefore the instant writ petition is liable to be dismissed with costs. His petition before the Agriculture Production Commissioner and Commissioner & Secretary to the Government of Nagaland by a letter dated 21.10.2020 controverts allegations made by him in the writ petition. It can be inferred that the petitioner expects to be treated differently in total negation of his plea in the writ petition he expects that the work should be allotted to him in violation of all the norms-without floating NIT. One cannot approbate and reprobate. He has not come to the Court with clean hands and his writ petition has no merit. 16. Having discussed the facts of the case, the learned counsel has placed reliance upon the case of: ASCON (M/S) & ANR. vs. State of Assam & Others : 2017 (5) GLT 875 W.P. (C) NO. 3340 of 2017 Decided on 14.12.201 "23. It is fairly well settled that the law of limitation would not have strict application in a writ proceeding and delay is not to be applied as obdurate rule to deny relief, if otherwise allowable. But law is equally settled that if delay in approaching the court gives rise to parallel right being created in favour of a third party, then relief can be denied on the ground of delay. What would constitute delay and laches in a given case would depend on the facts and circumstances of each case and no inflexible rule of interpretation can be laid down in that regard. However, in a matter involving commercial interest of the parties, the Court would have to tread with caution not to entertain a stale claim particularly when the same would lead to trampling upon the rights of the adversary created under a concluded contract. 24. In the case of Dharam Pal Satyapal Limited and Others (supra) this court had observed that delay is not an irremediable vitiating malady acknowledged by the rule of law eventuating refusal of relief though otherwise justified on merit and it is a matter of discretion exercisable in the facts of a given case. 24. In the case of Dharam Pal Satyapal Limited and Others (supra) this court had observed that delay is not an irremediable vitiating malady acknowledged by the rule of law eventuating refusal of relief though otherwise justified on merit and it is a matter of discretion exercisable in the facts of a given case. It was, however, observed that no premium can be extended to a party guilty of inaction and negligence resulting in conferment and consolidation of rights on the adversary. 25. In the case of Shiba Shankar Mahapartra and Ors. vs. State of Orissa (supra) the Hon'ble Supreme Court has held that fence sitters cannot be allowed to raise the dispute or challenge the validity of an order after its conclusion. No party can claim the relief as a matter of right as one of the grounds for refusing the relief is on the ground of delay and laches in approaching the court. The Supreme Court has further observed that the court exercising public law jurisdiction does not encourage agitation of stale claims where the right of the third party crystallizes in the interregnum. 26. In the case in hand, the petitioner's grievance relates to rejection of its technical bid. In the facts and circumstances of the case, if the plea raised by the petitioners are to be accepted, the ultimate relief that could be granted under the law and equity was for this court to direct the authorities to reconsider the technical bid submitted by the petitioner no. 1 and to open its financial bid. But such a relief would be permissible only at a stage when the tender process was yet to be concluded and when no right had crystallized in favour of the successful bidder. Entertaining such a prayer after conclusion of the tender process would amount to setting the clock back which would be impermissible in the eye of law. 27. As would be evident from the facts alluded above, the Letter of Acceptance and the work order were issued in favour of the respondent no 4 well before the writ petition was filed and therefore, on the basis of the said orders, a right to execute the contract had accrued in favour of the private respondent. 27. As would be evident from the facts alluded above, the Letter of Acceptance and the work order were issued in favour of the respondent no 4 well before the writ petition was filed and therefore, on the basis of the said orders, a right to execute the contract had accrued in favour of the private respondent. From a careful analysis of the facts and circumstances of the case, it cannot be said that the petitioners were prevented from approaching this court at an earlier date due to factors beyond their control. Therefore, this Court is of the opinion that present is a clear case where the petitioners are guilty of laches and negligence and hence are not entitled to any relief on such count alone. 33. In the case of Maa Binda Express Carrier Vs. North-East Frontier Railway reported in : (2014) 3 SCC 760 the Supreme Court had the occasion to consider several earlier decisions of the court on the scope of judicial review in the matter of award of Government contracts, and has held that the bidders participating in the tender process cannot insist that their tender should be accepted simply because a given tender is highest or lowest depending upon whether the contract is for sale of public property or execution of work on behalf of the Government. All that the participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. What is necessary is that the Government or its agencies must act reasonably and fairly and to that extent, the tenderer has an enforceable right. 34. Again, in the case of Central Coalfields Limited and Others vs. SLL-SML (Joint Venture Consortium) and Others, reported in (2016) 8 SCC 622 the supreme Court has observed that the decision to accept or reject a particular bid should be looked into not only from the point of view of the unsuccessful bidder but also from the point of view of the employer. It has been observed that whether a clause in the NIT is essential or not is a matter that should be left to the decision of the employer and if the decision making process is found to be fair and transparent, the writ Court, in exercise of power of judicial review would not interfere with such a decision." The above decision demonstrates that the petitioner cannot come to the Court with guilt of laches and delay. 17. Reliance has been placed upon the Apex Court ruling of K. Sharma's case for coming to the Court with unclean hands: K.D. Sharma vs. Steel Authority of India Ltd. & Others : (2008) 12 SCC 481 "23. The learned counsel for SAIL is also right in urging that the appellant has not approached the Court with clean hands by disclosing all facts. An impression is sought to be created as if no notice was ever given to him nor he was informed about the consideration of cases of eligible and qualified bidders in pursuance of the order passed by the High Court in Review and confirmed by this Court. The true facts, however, were just contrary to what was sought to be placed before the Court. A notice was issued by SAIL to the appellant, he received the notice, intimated in writing to SAIL that he had authorized Ramesh of Rithwick Projects to appear on his behalf. Ramesh duly appeared at the time of consideration of bids, bid of respondent No. 2 was found to be lowest and was accepted and contract was given to him (under tender notice No. 4). The said contract had nothing to do with tender notice No. 5 and contract thereunder which had been given to the appellant herein and he had completed the work. Thus, it is clear that the appellant had not placed all the facts before the Court clearly, candidly and frankly. 24. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the Writ Court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. 25. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commissioners, in the following words: "It has been for many years the rule of the Court, and one which it is of the greatest importance to maintain, that when an applicant comes to the Court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts-it says facts, not law. He must not misstate the law if he can help it; the Court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the Court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it the Court will set aside any action which it has taken on the faith of the imperfect statement". (emphasis supplied) 26. A prerogative remedy is not a matter of course. While exercising extraordinary power a Writ Court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the Court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the Court, the Court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating "We will not listen to your application because of what you have done". The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it." Having come to the Court with unclean hands, the writ petition must be dismissed. 18. Learned counsel Mr. Sentiyanger appears for the respondent Nos. 2, 3, 4 and 5. While subscribing to the arguments made by the learned counsel Mr. 18. Learned counsel Mr. Sentiyanger appears for the respondent Nos. 2, 3, 4 and 5. While subscribing to the arguments made by the learned counsel Mr. Tongpok Pongener for the respondent No. 7 submits that the claim of the petitioner to be allotted the work on the basis of the NIT floated by the Executive Engineer, Department of Horticulture under letter NO. HR/EE/HD-111/NEC/PHM/2017-18 without obtaining any approval from the administrative head of the SFAC (N) is not at all sustainable. The NIT was floated without the concerned authority and is liable to the cancelled. He also argues that the petitioner has filed a complaint before the Vigilance and Anti-Corruption Commission, Nagaland which is registered as R.C. 2/2018. The same has been charge sheeted mentioning several names of several officers in the department as accused. The petitioner without waiting for outcome of the complaint petition has filed this writ petition, which is against the doctrine of res-judicata and also the doctrine of double jeopardy. The petitioner is using remedies provided under the land to harass the respondents which is not permissible in law. 19. In line with learned counsel for respondent No. 7, he has argued that the petitioner has approached the Court with unclean hands, he has used the procedures of law to harass the respondents, he has taken recourse to other process of law whereby his matter is kept pending and he is using the writ petition as a leverage to influence the authority to award him the contract. The learned counsel has relied upon the under listed citations to substantiate his arguments. 1. (2010) 2 SCC 144, 2. (2011) 8 SCC 249 3. (2012) 5 SCC 370 4. (2013) 2 SCC 398 5. (2014) 8 SCC 470 6. (1977) 2 SCC 155 7. (1995) 1 SCC 421 8. (1992) 4 SCC 683 9. (2011) 5 SCC 435 10. (2009) 2 SCC 479 11. AIR 1987 SC 251 12. AIR 2007 SC 924 He however admitted that no tender was floated and fairly agreed that it will be in the interest of justice to measure the works already completed by a neutral body and invite tender as per established procedures and allot work to the successful bidder. 20. Learned counsel for the respondent No. 6 Mr. Moa Imchen, Senior Government Advocate appears and submits that the respondent No. 6 is the technical officer connected to the Department of Agriculture. 20. Learned counsel for the respondent No. 6 Mr. Moa Imchen, Senior Government Advocate appears and submits that the respondent No. 6 is the technical officer connected to the Department of Agriculture. The respondent No. 6 is the only authority who has technical knowledge of the construction of infrastructure related to the Post Harvest Management. He has therefore argued that it was appropriate that the respondent No. 6 should float the NIT and award works. He has however submitted that since the matter has come to a stage where the work was allotted by the respondent No. 2 and some work has been completed, it will be in fairness of things to direct a neutral person i.e. respondent No. 1 to measure the works already completed and invite bidders by floating fresh NIT for remaining works. 21. I have keenly heard the parties and examined records placed before me. The first issue is who is the implementing authority to allot the works?. The letter of NEC dated 28.12.2017 giving administrative approval for the project will clarify the issue, which is reproduced below: " NO. NEC/AGRI/PH/NG/2015 GOVERNMENT of INDIA MINISTRY of DEVELOPMENT of NORTH EASTERN REGION NORTH EASTERN COUNCIL SECRETARIAT NONGRIM HILLS: SHILLONG-793003 Dated the Shillong 28th December, 2017 To, Pay & Accounts Officer (NEC) NEC Secretariat Nongrim Hills, Shillong, Meghalaya-793003 Sub:- Administrative approval for "Post Harvest of Horticulture Crops (cold rooms, pack houses, marketing infrastructure) in Dimapur, Mokokchung, Peren, Tuensang, Phek and Wokha, Nagaland" for the financial year 2017-18" 1. Secretary, NEC in exercise of the financial power authorized by the Government of India, Ministry of Development of North Eastern Region vide their letter No. F. No. 4/1/2010-DoNER (NEC) dated 07th September, 2012 has conveyed sanction of the President of India for the Administrative Approval of Rs. 717.90 lakhs (Rupees seven crore seventeen lakhs ninety thousand) only towards the project "Post Harvest Management of Horticulture Crops 9 cold rooms, pack houses, marketing infrastructure) in Dimapur, Mokokchung, Peren, Tuensang, Phek and Wokha, Nagaland" to be implemented by "Small Farmers Agri Business Consortium (SFAC) for the Department of Horticulture, Govt. of Nagaland. 2. The General Financial Rules, 2005 (GFR, 2005) and subsequent amendments/instructions/orders which the Ministry of Finance, Government of India may issue from time to time must be strictly followed during the implementation of this project. 3. of Nagaland. 2. The General Financial Rules, 2005 (GFR, 2005) and subsequent amendments/instructions/orders which the Ministry of Finance, Government of India may issue from time to time must be strictly followed during the implementation of this project. 3. The subsequent installments would be released by NEC on receipt Utilization Certificates in Form GFR 19-A for the funds released by NEC as well as the Physical & Financial Progress Report. Audited statements of accounts are required to be submitted by the implementing agency before issue of the installment. 4. Implementing agency will furnish the Utilization Certificates in Form GFR 19-A for the funds released by NEC duly countersigned by the authorized signatory 5. Immediately after funds have been placed at the disposal of the implementing Agency, a quarterly work plan/action schedule of activities based on the approval DPR should be drawn up and submitted to the concerned Adviser/Director of NEC Secretariat, Shillong and the progress of implementation should also be closely monitored on a quarterly basis at the highest level of the Department/State Government concerned. Both financial and physical Quarterly Progress Report (QPR) along with photographs at different stages of implementation should also be regularly submitted at the end of each quarter 6. Physical Inspection of the Project as applicable shall be conducted before release of last installment or at any stage as per NEC Guidelines 7. GPS location viz. latitude and longitude coordinates of the project site/sites should be furnished by the implementing agency to the NEC office 8. At the project site, a board should be erected displaying the fact that the project has been supported by NEC 9. "Small Farmers Agri Business Consortium (SFAC) for the Department of Horticulture, Govt. of Nagaland" will be completely responsible for the proper implementation of the project in regard to the timely implementation and the executional cost as per the approved project. 10. The expenditure involved will be met from within the sanctioned budget grant of the Ministry under Demand No. 23, Major Head "2552" North Eastern Area, 00-Crop Husbandry 796-Schedule Tribe Component (Minor Head)-06 Marketing support to Agri-horti produces in NE Region 01-06-OH-35 Grants for Creation of capital Assets. The subsequent amounts to be released under 00.31 and 00.35 under each installment would be indicated separately in the respective/relevant Release Orders 11. This issues with the concurrence of Integrated Finance Wing vide their Dy. The subsequent amounts to be released under 00.31 and 00.35 under each installment would be indicated separately in the respective/relevant Release Orders 11. This issues with the concurrence of Integrated Finance Wing vide their Dy. No. 222 dated: 26/12/2017 (M. Iboyaima Metei) Adviser (Horticulture)" 22. Administrative approval abundantly makes it clear that the project shall be implemented by the Small Farmers Agri Business Consortium (SFAC) for the Department of Horticulture, Government of Nagaland. Therefore, there is no further argument needed on the subject. I am also not convinced with the plea of respondent No. 6 that he is the technical expert and the authority to float the NIT. He works under the respondent No. 2, 3 and 4 and his action of bypassing these authorities will be insubordination. The work Order NO. HR/EE/HD-III/NEC/PHM/2017-18 dated 07.06.2018 is without the authority of law and is null and void. 23. Much has been canvassed that the petitioner has come with unclean hands. The allegation is that the petitioner was fence-sitting and watching as to whether the second installment would be released to take advantage of the same. He did not honestly bring out the fact that final installment for the project was released although he was in the knowledge. By his letter dated 21.10.2020 to the respondent No. 2 to allot him the work is an indication that he should be allotted work without following the norms. His prayer is in total contrast to what he has actually tried to unsuccessfully achieve. The argument that the petitioner did not disclose the fact that he knew that the 2nd installment was released therefore he has approached the Court with unclean hands is unacceptable. The prayer of the petitioner is that the NIT be floated in terms of the laws laid down for contract works. The fact whether the installment has been released or not does not effect the merits of the case. Subject matter is that no NIT was floated prior to award of the contract. While presenting petition, the petitioner is liable to miss out certain facts. On the face of it there cannot be a conclusion that there is misrepresentation of facts. One must examine whether the facts were suppressed to influence the Court and whether such suppression would result in effecting decision of the issue in hand. While presenting petition, the petitioner is liable to miss out certain facts. On the face of it there cannot be a conclusion that there is misrepresentation of facts. One must examine whether the facts were suppressed to influence the Court and whether such suppression would result in effecting decision of the issue in hand. The fact that the petitioner did not disclose the release of fund will in no way determine the merits of whether non floating of NIT for award of contract is legal or not. Therefore non-disclosure of the release of fund cannot be termed as an act of non-disclosure of material fact. 24. The allegation that the petitioner was fence sitting to take advantage only when the fund was released is not acceptable. The prayer of the petitioner is that fresh NIT be floated for all legible bidders to participate. There can be no guarantee that the petitioner would be successful in the bid. Even the respondent No. 7 is also not debarred from the fresh tender process. Despite the allegation that the petitioner had approached the respondent No. 2 for the award of contract in negation of what is pleaded in the writ petition, we also cannot be oblivious of the fact that the writ Court is bound to pass order to advance the law and not to perpetuate illegality. If the petitioner has committed errors of not bringing certain facts before the Court and on this ground restrain ourselves to protect the fundamental right of the petitioner, it would result in failure of justice. The fact that the petitioner has filed a criminal complaint before the Vigilance Commission also cannot debar him from approaching this Court to enforce his fundamental rights. The criminal case relates to corruption perpetuated by the concerned government servants which is a segregated legal action. The writ petition is related to enforcement of fundamental right, which cannot be given relief in a criminal Court. A criminal trial and civil proceedings can go side by side. There can be lot many cases where in a set of facts both civil and criminal aspects get ingrained. The petitioner cannot be debarred from enforcing his fundamental rights for having lodged a criminal complaint. Vigilance Commission has no authority to give directions to float a fresh NIT. Its authority is limited to limited provision of penal statutes applicable to government servants. The petitioner cannot be debarred from enforcing his fundamental rights for having lodged a criminal complaint. Vigilance Commission has no authority to give directions to float a fresh NIT. Its authority is limited to limited provision of penal statutes applicable to government servants. The petitioner is not a government servant, he is not a subject matter of Lokayukta. Rights of civil nature is not the subject matter of the Lokayukta. Therefore, the petitioner cannot be debarred from presenting his writ petition for enforcement of his civil rights. 25. The R.C. 2/2018 is still at the stage of trial as admitted by the respondents. When the matter has not been disposed finally on merits by a competent Court, there can be no issue of res judicata. Neither doctrine of double jeopardy applies in the instant case. As already dwelt upon a person's civil rights could not be restrained for the fact that he has lodged a criminal complaint on the same subject matter which is ingrained with both criminal and civil characteristics. The sanctity of the writ petition has also been challenged on the ground of laches and delay. The petitioner has defended the same by stating that the lawyer withdrew the case on his own wisdom without his instructions. It is apparent on records that the earlier counsel Mr. Imti Longchar had instructed a proxy advocate Mr. Moa Jamir and has produced a letter of withdrawal from W.P. (C) 15 (K) of 2018 and this Court had directed that the leading counsel should file an affidavit to that effect which was directed to be filed within 2 weeks time by an order dated 30.01.2020. However, on 19.02.2020 appearing on behalf of Mr. I. Imti Longchar submitted that he has instructions to withdraw the case with liberty to file afresh. The petition was allowed. This Court had directed the leading counsel to file affidavit of withdrawal from the case, not to withdraw the case as on records. The statement of the petitioner is apparently correct, since there was a direction to file affidavit for withdrawal of the leading counsel not to withdraw the case. A litigant could not be made to suffer for the errors committed by his counsel. The petitioner was also defended the delay by citing his medical treatment at Delhi, the pandemic situation added with the task of finding a fresh counsel which has caused the delay. A litigant could not be made to suffer for the errors committed by his counsel. The petitioner was also defended the delay by citing his medical treatment at Delhi, the pandemic situation added with the task of finding a fresh counsel which has caused the delay. In the instant case there has not been extra ordinary delay caused. The respondents have also admitted that the NIT was not floated as required under the law. When the delay does not effect the right of the thirty party and the violation of the fundamental right is admitted by the respondents, we cannot take the plea of delay and laches. NO third party right is effected here even if the illegal work order is stayed. It has been time and again pronounced by the Apex Court that when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred. 26. In a small state like ours, we have limited projects for development, when few schemes are sanctioned, it is observed that they do not get implemented as desired to give benefit to the people. They rather spent precious time in the Courts doing great disservice to the people, all because of violation of the rules in award of contract in unfair and in transparent manner by the responsible authority. What can be more compelling reasons for the Courts to interfere? If the Courts do not take steps to channelize these malpractices of table tenders and whimsical award of largess of the State to few selected people, we are heading towards despotism. There is enormous irregularity in awarding the contract impugned which is impermissible. There cannot be a system of hide and seek where the largess of the State is to be awarded to citizens. There may be minor aberrations committed by the petitioner while presenting the writ petition, however, these issues are not of enormous consideration for the Court compared to flagrant violation of fundamental rights committed by the State respondents to desist itself from interfering with such actions. It would amount to shunning from the assigned duty of forwarding the cause of substantial justice. 27. If the petitioner has unclean hands the State respondents have acted with illegal hands. It would amount to shunning from the assigned duty of forwarding the cause of substantial justice. 27. If the petitioner has unclean hands the State respondents have acted with illegal hands. Unclean hands has the limited effect of giving undue advantage to only a few, but the actions of "illegal hands" have devastating effects on the society destroying the essence of the citizens basic fundamental rights. When unclean hands are pitted against illegal hands, the effects of illegal hands should be admonished on priority. We see illegal hands in action in the instant case. 28. The petitioner herein has made a just prayer-to float NIT as per rules, which is allowed. 29. The Work Order NO. NL/SFAC-20/NEC/2017-18 dated 19.03.2018 and Corrigendum NO. NL/SFAC-20/NEC/2017-18 dated 11.06.2018 are hereby quashed and set aside. The respondent No. 1 shall take steps to measure the work already completed, pay the respondent No. 7 commensurating to the work executed and thereafter the implementing agency shall issue fresh NIT for the incomplete work against the project of Post Harvest Management of Horticulture Crops sanctioned by the North East Council vide letter NO. NEC/AGRI/PH/NG/2015 dated 28.12.2017. Considering that the quality of the work completed has to be assessed, the respondent No. 1 shall be at liberty to take assistance of the technical wing and also the police of Lokayukta who are in seisin of the matter. Let the exercise be completed within one month of the receipt of the certified copy of this order considering urgency in the matter. Writ petition is allowed and disposed of with the above observations and directions.