JUDGMENT : Heard Mr. S. Borgohain, learned counsel appearing for the petitioners assisted by learned counsels Mr. Emon Bhattacharya, Mr.Tongpok, Mr. Baplu Chakma and Mr.Lipoklemba, heard Mr.T.B Jamir, learned Sr. Additional Advocate General appearing for the respondent Nos. 1, 2, 3, and also heard Mr. R.Iralu, learned senior counsel assisted by Mr.L.Iralu, learned counsel for private respondent No.5. 1. The facts and circumstances which led to the filing of the present writ petitions and the reasons why it has been listed along with the connected writ petitions may be briefly stated and for the same this Court shall refer to its order dated 04.10.2021: “2. ………. The Central government in view of improving road connectivity in the state of Nagaland accorded sanction to Nagaland Public Work Department (NPWD) under Northeast Road Sector Development Scheme and in pursuance to the same, NPWD floated NIT dated 13.09.2019, for five number of projects, in which the petitioners were interested in “Tenning to Lekkie” project which was situated in the district of Peren. 3. The entire project was to be executed according to the guidelines issued under MORTH guidelines, March 2019 and Standard Bidding Guideline. The State Respondents held a Pre-Bid-Meeting on 24.9.2019 and the resolution which was adopted in that meeting was contradicting with SBD and the guidelines issued by NEC. The petitioners sought clarification vide letter dated 27.09.2019 but the same proved to be futile. In the above factual context a series of Writ Petitions were filed, and for the sake of convenience those Writ Petitions are penned down here in a chronological order; W.P.(C) 187/2019: The subject matter impugned in the petition was that the State respondent’s act of adopting the resolution dated 24.09.2019 in the pre-bid- meeting was contra to the guidelines issued by the NEC and MORTH guidelines March 2019. The Writ Court was not inclined to grant stay order in the matter as the tender was two tier system i.e. Technical and Financial, so the court was of the view that if the petitioners did not qualify technically the Writ will become infructuous but if the petitioners qualified technically then the interim prayer will be considered on the next date. On 1.11.2019 the matter came up for admission hearing when the Government Advocate placed a letter dated 31.10.2019 issued by the respondent authorities that the minutes of the pre-bid- meetings are not complied which is suggestive that MORTH Guidelines were followed and the Joint-Venture of the Petitioner’s is declared as L 1 in view of the above facts the matter was disposed of as infructuous vide order dated 9.12.2019 by this Court. II. W.P. (C) 249/2019 This writ petition was filed by the petitioners on 9.12.2019 with a prayer to the Writ Court that since the Petitioner’s Joint Venture has been declared L1 the Letter of Acceptance ought to be issued to the petitioner as per the MORTH guidelines. The said guideline stipulates that LOA must be issued to the L1 on the 75th day from the date of NIT. This Hon’ble Court took cognizance of the matter and asked the State respondents to reply to the same on 23.01.2020. III. W.P. (C) 3 (K)/2020 On perusal of the order dated 9.12.2019 passed in WP (C) 249/2019 it leaves no doubt that the matter was sub judice but surprisingly the state respondents cancelled the tender vide tender cancellation corrigendum dated 16th December 2019 following by a fresh NIT dated 18.12.2019. The act of the State respondents was prima facie act of administrative review of a Judicial order. The said act of the respondent was challenged by the Petitioner by filing a Writ Petition at Principal Seat at Gauhati which was registered as WP (C) 75/2020 and the Court was pleased to accept the argument canvassed by the Petitioner and granted stay of the impugned notification vide order dated 6.01.2020. Relevant portion of the order is extracted herein below. “I have given due consideration to the submissions of the learned counsel. Apparently, it is found that the bid of the petitioner both technical and the price bid were accepted by the respondents and while the petitioner was expecting the letter of acceptance and having found the same not being issued preferred writ petition and at that stage the said NIT was cancelled. Apparently, it is found that the bid of the petitioner both technical and the price bid were accepted by the respondents and while the petitioner was expecting the letter of acceptance and having found the same not being issued preferred writ petition and at that stage the said NIT was cancelled. In my considered opinion, prima-facie the petitioner has a case to be heard and to be decided on the issue as to whether the action of respondent authorities are correct and lawful in cancelling the NIT dated 13.09.2019 that too during the pendency of the WP(C) 249/2019 wherein the issue of non-issuance of LOA to the present petitioner is in seisin. Considering the same, status quo as on date in respect of the NIT dated 18.12.2019 is directed to be maintained by the respondents till 23.01.2020 and further keeping in view the nature of dispute involved in this writ petition, let notice be issued. Mr. Ao accepts notice on behalf of respondent Nos. 1 to 3 and Mr. D Bora, learned counsel accepts notice on behalf of the respondent No. 4. Necessary extra copies be served on the learned counsel. List this matter along with WP(C) 249/2019 pending before the Kohima Bench, Gauhati High Court. Mr. Ao has taken the responsibility to inform the order of status quo passed by this court today to the respondents. Further as the motion hearing stage is over let this matter be taken up on the administrative side for transfer of this writ petition to the Kohima Bench of this Court urgently.” 4. The said matter on being transferred to Kohima bench was subsequently renumbered as WP(C) 3 K/2020 in Kohima Bench, but subsequently the interim order was vacated by this Court on 27.02.2020. The relevant portion of the order is extracted herein for ready reference. “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. “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. 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.” 5. Aggrieved with that order the petitioners challenged the order in Writ Appeal before the Principal Bench which was numbered as W.A. 48/2020. The Division bench after hearing the parties was pleased to dispose of the matter vide order dated 04.03.2020 with a direction to the Writ Court to dispose of the matter at the earliest as there is substantial question of law involved. The relevant portion of that order is extracted herein for ready reference. “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. The relevant portion of that order is extracted herein for ready reference. “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. 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. 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.” 6. The main issue raised by the respondents was that the writ petition filed by a single entity of the Joint Venture is not maintainable and the reason they have cited is that : It is the Joint venture who has taken part in the bidding process and as such it is the Joint venture who can approach the Court. Relying upon the decision of the Hon’ble Apex Court in the case of Gammon India reported in (2011) 12 SCC 499 where the Hon’ble Apex Court held that Joint Venture is a legal entity by itself. 7. The petitioner filed a IA for impleadment of the other entities of the Joint Venture in the Writ proceedings which was registered as IA (C) 35/2021 but the same was withdrawn by consent of all the parties by an order dated 28.04.2021 passed by this Hon’ble Court in the said IA. Relevant portion of that order is extracted here in for ready reference “When the matter was put up for hearing on the I.A. Application No.35/2021 connected with W.P. (C) 3/2020 and W.P.(C)249/2019, Mr. Relevant portion of that order is extracted here in for ready reference “When the matter was put up for hearing on the I.A. Application No.35/2021 connected with W.P. (C) 3/2020 and W.P.(C)249/2019, Mr. Borgohain learned counsel for the petitioners submits that the matters has been kept pending with several I.A. applications being filed delaying the matter because of technical defects in the writ petition which is ultimately not serving the purpose of any parties. Reminding this Court that it is an issue of public interest and also reminding that there is already a PIL filed for expeditious construction of the road concerned, he submits that he may be allowed to withdraw W.P. (C) 249/2019, W.P. (C) 3/2020 and also the connected I.A. (Civil)35/2021 with liberty to file afresh so that the matter may not be lingered for very long by addressing the technicalities involved in the writ petition. He has prayed that he may be allowed to withdraw the above mentioned cases with liberty to change only the cause title which is the issue pending before this Court and to incorporate all the facts that is contained in the above mentioned two writ petition since there will be absolutely no diversion of the facts enumerated therein the two writ petitions. Learned senior counsel, Mr. L. Iralu appearing for the respondent No.5 submits that he has no objection for withdrawing the writ petitions and to file a fresh petition by the petitioners. However, the extra prayer that has been made by the learned counsel for the petitioners is procedurally improper since once the writ petition is withdrawn it has to be followed by filing fresh petition and also by issuing notice to the parties. He also points out that the parties are at liberty to engage any counsel and he would not know the mind of the respondents as to whether he would be engaged again in the newly filed writ petition. Therefore, expressing his reservation on the procedure concerned he has submitted that procedure may be followed. I have heard the parties and I am of the view that the matter has been kept pending for very long for technicalities and the connected I.As are being filed only on the issue of locus standi which is resolvable by filing a fresh petition incorporating the concerned people having locus standi. I have heard the parties and I am of the view that the matter has been kept pending for very long for technicalities and the connected I.As are being filed only on the issue of locus standi which is resolvable by filing a fresh petition incorporating the concerned people having locus standi. The respondents have also not objected to the withdrawal, they have only expressed reservation on the procedural aspect as prayed for by the learned counsel for the petitioners. I am in agreement with the submissions made by the learned senior counsel for the respondent No.5 on the issue of procedure concerned. The petitioners are allowed with withdraw W.P. (C)3/2020,W.P.(C)249/2019 and I.A. (Civil)35/2021 with liberty to file afresh by adopting procedures as prescribed by law. Accordingly, W.P.(C) 3/2020, W.P.(C) 249/2019 and I.A.(Civil)35/2021 are disposed of on withdrawal.” 8. Accordingly the petitioner withdrew the writ petitions and filed the fresh writ petition inconformity with the order (supra) which was numbered as W.P(C)93/2021 and W.P(C)94/2021 respectively.” 2. The respondents have challenged that the present Writ petitions are not maintainable, in view of their preliminary objections raised in their respective affidavit-in-opposition. They further submitted that the merits of the case cannot be adjudicated until and unless the preliminary objections were heard and disposed of. 3. This Court after giving due consideration to the submissions made by the counsels at the Bar, held that before this court hears the matter on merits, it has to decide the preliminary objections with regard to the maintainability of the writ petitions. Hence the maintainability issues were heard in length and after giving due considerations to the arguments placed by both the sides this court vide order dated 04.10.2021 was pleased to overrule the preliminary objections of the Respondents and held that the Writ Petitions filed by the Petitioners are maintainable. 4. Aggrieved by the said order, the private respondent No. 5 filed two writ appeals (WA 283 of 2021 and WA 285 of 2021) before the Hon’ble Division Bench at the Principal Seat, Gauhati; the Hon’ble Division Bench without interfering with the order of this Court, remanded back the writ petitions to be heard by the Writ Court expeditiously and to take note of the preliminary objections while hearing the Writ petitions. The relevant portion of the order passed by the Hon’ble division Bench is reproduced herein: “7. The relevant portion of the order passed by the Hon’ble division Bench is reproduced herein: “7. We are not going into the technicalities of the matter. The fact, however, remains that even if liberty was not granted to “Joint Venture Construction” to file writ petition, in any case, “Joint Venture Construction” cannot be stopped from filing writ petition. All the same, before the writ petitions were taken up for consideration on merits, some aspects, such as, whether there was inordinate delay in filing the writ petition; whether “Joint Venture Construction” had in any way participated in the subsequent tender process initiated vide NIT dated 18.12.2019 or not and, if participated, whether it amounts to waiver, etc., should be considered. However, all these aspects have not been considered by the learned Single Judge. 8. In view of the above, we are of the opinion that the matter needs to be remanded back to the learned Single Judge to decide the matter afresh by taking into consideration all the aspects referred to above. 9. Accordingly, without interfering with the impugned order passed by the learned Single Judge, we remand back the matter to the learned Single Judge with the request to decide the same as expeditiously as possible. However, the learned Single Judge is also requested to consider the aspects of inordinate delay in filing the writ petitions and the maintainability of the writ petitions the grounds as raised by the appellant/respondent no. 5.” 5. Learned Senior Council Mr. R. Iralu submitted that in view of the above order, this Court is directed to hear the preliminary objections raised by the private respondent No. 5 afresh. The learned council for the petitioner objected to the same and submitted that the argument canvassed by the private respondent No. 5 to the interpretation of the order of the Hon’ble division Bench is legally not sound. After hearing the parties, this Court on the perusal of its order finds that the grievances of the private respondent No. 5 should be looked into at the time of hearing of the matter on merits as it involves mixed question of fact and law. The relevant portion of the order is extracted herein: “I have perused the judgments presented. After hearing the parties, this Court on the perusal of its order finds that the grievances of the private respondent No. 5 should be looked into at the time of hearing of the matter on merits as it involves mixed question of fact and law. The relevant portion of the order is extracted herein: “I have perused the judgments presented. It is imperative for this Court to read in true spirit the order (supra) of the Hon’ble Division and on reading of the same what transpires is that the Hon’ble Division Bench has requested this Court to look into the two aspects i.e., whether there was inordinate delay in filing the Writ Petition and whether the Joint Venture Corporation had in any way participated in the subsequent tender process initiated vide NIT dated 18.12.2019. This court is also alive to the fact that there is an order where the Hon’ble Division Bench has requested this Court to decide whether the act of the State Respondents in cancellation of the tender when the matter was sub judice in the Court amounts to administrative review of the Judicial order. When there is allegation of Contempt or sub judicial act, it obviously is an allegation of serious nature, a matter concerning not only the rights of the parties, but it is jural relationship between the Court and the Litigants. A question concerning the judicial function which keeps the states and citizens within the parameters of the law which is supreme. If let loose, would result in the destruction of the State. Thus, such matters of great consequences cannot be let go, without affording privilege of hearing to the parties. Further to satisfy the curiosity of this Court, I have gone through the pleadings and the orders passed by this Court and I find Prima Facie the objection raised by Mr. R. Iralu, learned Senior counsel are mixed question of fact and law which cannot be entertained as preliminary objections. Examining the same will be going into the merits of the case and would take the nature of disposal which is not permissible. As such, this Court is of the view that the matter shall be heard on merits and the objections raised by the Private respondent No. 5 shall be examined at the time of hearing.” 6. Examining the same will be going into the merits of the case and would take the nature of disposal which is not permissible. As such, this Court is of the view that the matter shall be heard on merits and the objections raised by the Private respondent No. 5 shall be examined at the time of hearing.” 6. The matters were fixed on 9th December 2021 for admission hearing of the above order (supra) but on the said date two interlocutory applications (I. A. (Civil) 114/2021 and I. A. (Civil) 115/2021) were filed by the private respondent No. 5 in WP (C) 93/2021 and W.P.(C) 94/2021. Vide those I. A.s filed under Section 151 of the Civil Procedure Code prayed for the recalling of the common order dated 30/11/2021 passed by this Court, which was technically amounting to review of the order. 7. While hearing of the instant application the Learned Council for the petitioner relied on a judgment of the Hon’ble Apex Court reported in (1996) 2 SCC 205 where the Hon’ble Apex Court has observed as follows: “When the High Court exercises extraordinary jurisdiction under Article 226 of the constitution, it aims at securing a very speedy and efficacious remedy to a person, whose legal or constitutional right has been infringed. If all the elaborate and technical rules laid down in the Code are to be applied to writ proceedings the very object and purpose is likely to be defeated. According to us, in view of the conflicting opinions expressed by the different courts, the Parliament by the aforesaid amending Act introduced the explanation saying that in Section 141 of the Code the expression "proceedings" does not include "any proceedings under Article 226 of the Constitution" and statutorily recognised the views expressed by some of the courts that writ proceedings under Article 226 of the Constitution shall not be deemed to be proceedings within the meaning of Section 141 of the Code. After the introduction of the explanation to Section 141 of the Code, it can be said that when Section 141 provides that the procedure prescribed in the Code in regard to suits shall be followed, as far as it can be made applicable "in all proceedings in any court of civil jurisdiction" it shall not include a proceeding under Article 226 of the constitution. In this background, according to us, it cannot be held that the provisions contained in Order 22 of the Code are applicable per se to writ proceedings. If even before the introduction of the explanation to Section 141, this Court in the case of Babubhai v. Nandlal (supra) had said that the words "as far as it can be made applicable occurring in Section 141 of the Code made it clear that in applying the various provisions of the Code to the proceedings other than those of a suit, the court has to take into consideration the nature of those proceedings and the reliefs sought for" after introduction of the explanation the writ proceedings have to be excluded from the expression "proceedings" occurring in Section 141 of the Code. If because of the explanation, proceeding under Article 226 of the Constitution has been excluded, there is no question of making applicable the procedure of Code 'as far as it can be made applicable' to such proceeding. The procedures prescribed in respect of suit in the Code if are made applicable to the writ proceedings then in many cases it may frustrate the exercise of extra-ordinary powers by the High Court under Articles 226 and 227 of the Constitution. On a plain reading, Section 141 of the Code provides that the procedure provided in the said Code in regard to suits shall be followed "as far as it can be made applicable, in all proceedings". In other words, it is open to make the procedure provided in the said Code in regard to suits applicable to any other proceeding in any court of civil jurisdiction. The explanation which was added is more or less in the nature of proviso, saying that the expression "proceedings" shall not include any proceeding under Article 226 of the Constitution. The necessary corollary thereof shall be that it shall be open to make applicable the procedure provided in the Code to any proceeding in any court of civil jurisdiction except to proceedings under Article 226 of the Constitution. Once the proceeding under Article 226 of the Constitution has been excluded from the expression "proceedings" occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? Once the proceeding under Article 226 of the Constitution has been excluded from the expression "proceedings" occurring in Section 141 of the Code by the explanation, how on basis of Section 141 of the Code any procedure provided in the Code can be made applicable to a proceeding under Article 226 of the Constitution? In this background, how merely on basis of Writ Rule 32 the provisions of the Code shall be applicable to writ proceedings? Apart from that, Section 141 of the Code even in respect of other proceedings contemplates that the procedure provided in the Code in regard to suits shall be followed "as far as it can be made applicable". Rule 32 of Writ Rules does not specifically make provisions of Code applicable to petitions under Articles 226 and 227 of the Constitution. It simply says that in matters for which no provision has been made by those rules, the provisions of the Code shall apply mutatis mutandis in so far as they are not inconsistent with those rules. In the case of Rokyaybi v. Ismail Khan, AIR 1984 Karnataka 234 in view of Rule 39 of the Writ Proceedings Rules as framed by the Karnataka High Court making the provisions of Code of Civil Procedure applicable to writ proceedings and writ appeals, it was held that the provisions of the Code were applicable to writ proceedings and writ appeals. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious.” 8. In view of the observations made by the Hon’ble Apex Court (supra) as well as keeping in view of the directions passed in W.A. 283 of 2021 and W.A. 285 of 2021 by the Hon’ble Division Bench (Supra), I did not find any ground to disturb the order dated 30.11.2021 on the ground that this Court has already given the scope to the private respondents to ventilate their grievances with respect to their preliminary objections while passing the order (supra). There is no bar for this Court to hear the preliminary objections along with the main issues. Entertainment of several I.As was only delaying the matter. Accordingly, the said I.A.s were dismissed. 9. In light of the above discussions, this Court hears the matter on merits but before venturing into the same, this Court takes notes of the fact that the State respondents have not challenged the order dated 04/10/2021 (supra) passed by this Court. Learned Senior Additional A. G., Mr. T. B. Jamir also submitted that as far the issuance of the LOA within 75th day from the issuance of the tender is concerned it is not reflected at page 54 of the WP (C) 94/2021 and hence it is misrepresentation of the fact by the petitioner, Mr. Jamir further submits that a party cannot be given benefit of a petition where he was not a party. Jamir further submits that a party cannot be given benefit of a petition where he was not a party. This argument shall be addressed by this Court at a later stage. 10. Mr. Iralu submits that the preliminary objections which he wants to canvas in both the writ petitions are “delay, latches and waiver”. He draws the attention of this Court to para (xxi to xxii) of the Affidavit in opposition filed in WP (C) 93/2021 and WP (C) 94/2021. This Court on perusal of the affidavits found that in both the Affidavit in opposition the preliminary objections are: Delay and Laches, Infructuous Petition and Non-joinder of necessary party. Though there was no specific pleading of waiver in the pleadings of the respondent but the ground canvassed as infructuous petition the sense of waiver can be implied. For ready reference the relevant portion of the affidavit-in-oppositions are reproduced here in below. “WP(C) 93/2021 xxi. At the cost of revisiting the chain of events stated supra, the deponent states that the JV participated in the first tender floated by NIT dated 13.09.2019, wherein it made the lowest bid. However, the tender was cancelled by a corrigendum on 16.12.2019 before the lowest bid was accepted due to detection of irregularities in the bids submitted by the bidders. Immediately thereafter, a fresh tender was floated on 18.12.2019 for the same road project. The JV once again participated in the fresh tender. However, the deponent was awarded the LOA for the fresh tender on 16.03.2020. In the meantime, a cause was being pursued by petitioner No.4 with no locus standi. By order dated 27.02.2020, the Hon’ble Court had sufficiently made it clear that the cause pursued by petitioner No.4 was not maintainable as it had no locus. The same view was also echoed by the Division Bench of this court. As such, by this time, the petitioner No.1 had full knowledge of this fact as it was made a respondent in I.A No.20/2020, which was filed as an afterthought to overcome the legal fatality of absence of locus standi, albeit the IA was misplaced. However the petitioner No.1 never took any step to pursue its own cause diligently. Instead, the petitioner No.1 was simply sitting and observing the turn of events for more than one year, when it was fully aware of all the ensuing facts and circumstances. However the petitioner No.1 never took any step to pursue its own cause diligently. Instead, the petitioner No.1 was simply sitting and observing the turn of events for more than one year, when it was fully aware of all the ensuing facts and circumstances. Consequently, IA 20/2020 was dismissed by this Hon’ble Court on 19.03.2021. Thereafter, another IA No.35/2021 was filed by petitioner No.4 and the petitioner No.1 was made an applicant in the IA. Eventually, this IA was withdrawn on 28.04.2021, which led to the institution of this instant petition. xxii. In light of the above facts and circumstances surrounding the conduct of the petitioner No.1-JV, the deponent submits that this writ petition is barred by delay and laches. It is submitted that the filing of the present petition will be deemed a petition being filed for the first time by the petitioner No.1-JV. If at all the petitioner No.1-JV was aggrieved with the non-issuance of LOA or cancellation of the first tender, it ought to have filed appropriate petition at the appropriate time. However, it miserably failed to do so by simply sitting on the fence and observing the turn of events while petitioner No.4 continued to waste the time of this court by undertaking futile exercises unknown to law. In doing so, the conduct of the petitioners ought not to escape the attention of this Hon’ble Court as it amounts to abuse of the process of this court. It is, therefore, submitted that this gross and negligent conduct of the petitioner No.1 in bringing this petition now only is nothing but laches and deserves to be dismissed with exemplary cost for wasting the time of the court. B. Infructuous petition The deponent states that for all practical purpose the petitioner No.1-JV is filing this petition for the first time. Pursuant to the cancellation of the first tender on 16.12.2019, a fresh tender was invited vide NIT dated 18.12.2019. The JV participated in this fresh tender with open eyes, but is filing the present petition only now. If at all the petitioner No.1-JV was aggrieved with the cancellation of the first tender, it ought to have assailed with the non-issuance of LOA or cancellation of the first tender, it ought to have assailed the same time within a reasonable time when the issue was alive, as submitted herein above. If at all the petitioner No.1-JV was aggrieved with the cancellation of the first tender, it ought to have assailed with the non-issuance of LOA or cancellation of the first tender, it ought to have assailed the same time within a reasonable time when the issue was alive, as submitted herein above. However, having miserably failed to do so, and after having actively participated in the subsequent fresh tender by submitting its bid, the purported issues involved in this writ petition no longer survives, and the JV is stopped from bringing this writ petition for having waived its purported right, if any. As such, this writ petition is rendered infructuous as nothing is left to be decided. Therefore as well, this writ petition is not maintainable and deserves to be dismissed. W.P.(C) 94/2021-R-5 xxi. At the cost of recapitulating the chain of events stated supra, the deponent states that the JV participated in the first tender floated by NIT dated 13.09.2019, wherein it made the lowest bid. However, the tender was cancelled by a corrigendum on 16.12.2019 before the lowest bid was accepted due to detection of irregularities in the bids submitted by the bidders. Immediately thereafter, a fresh tender was floated on 18.12.2019 for the same road project. The JV once again participated in the fresh tender. However, the deponent was awarded the LOA for the fresh tender on 16.03.2020. In the meantime, a cause was being pursued by petitioner No.4 with no locus standi. By order dated 27.02.2020, the Hon’ble Court has sufficiently made it clear that the cause pursued by petitioner No.4 was not maintainable as it had no locus. The same view was also echoed by the Division Bench of this court. As such, by this time, the petitioner No.1 had full knowledge of this fact as it was made a respondent in I.A No.20/2020, which was filed as an afterthought to overcome the legal fatality of absence of locus standi, albeit the IA was misplaced. However the petitioner No.1 never took any step to pursue its own cause diligently. Instead, the petitioner No.1 was simply sitting and observing the turn of events for more than one year, when it was fully aware of all the ensuing facts and circumstances. Consequently, IA 20/2020 was dismissed by this Hon’ble Court on 19.03.2021. However the petitioner No.1 never took any step to pursue its own cause diligently. Instead, the petitioner No.1 was simply sitting and observing the turn of events for more than one year, when it was fully aware of all the ensuing facts and circumstances. Consequently, IA 20/2020 was dismissed by this Hon’ble Court on 19.03.2021. Thereafter, another IA No.35/2021 was filed by petitioner No.4 and the petitioner No.1 was made an applicant in the IA. Eventually, this IA was withdrawn on 28.04.2021, which led to the institution of this instant petition. xxii. In light of the above facts and circumstances surrounding the conduct of the petitioner No.1-JV, the deponent states that this writ petition is miserably barred by delay and laches. It is submitted that the filing of the present petition will be deemed a petition being filed for the first time by the petitioner No.1-JV. If at all the petitioner No.1-JV was aggrieved with the non-issuance of LOA or cancellation of the first tender, it ought to have filed appropriate petition at the appropriate time. However, it miserably failed to do so by simply sitting on the fence and observing the turn of events while petitioner No.4 continued to waste the time of this court by undertaking futile exercises unknown to law. In doing so, the conduct of the petitioners ought not to escape the attention of this Hon’ble Court as it amounts to abuse of the process of this court. It is, therefore, submitted that this gross and negligent conduct of the petitioner No.1 in bringing this petition now only is nothing but laches and deserves to be dismissed with exemplary cost for wasting the time of the court. B. Infructuous petition The deponent states that for all practical purpose the petitioner No.1-JV is filing this petition for the first time. Pursuant to the cancellation of the first tender on 16.12.2019, a fresh tender was invited vide NIT dated 18.12.2019. The JV participated in this fresh tender with open eyes, but is filing the present petition only now along with a preposterous prayer of quashing the NIT dated 18.12.2019, amongst others. If at all the petitioner No.1-JV was aggrieved with the cancellation of the first tender, it ought to have assailed the same within a reasonable time when the issue was alive, as submitted herein above. The JV also ought not to have participated in the fresh tender. If at all the petitioner No.1-JV was aggrieved with the cancellation of the first tender, it ought to have assailed the same within a reasonable time when the issue was alive, as submitted herein above. The JV also ought not to have participated in the fresh tender. However, having miserably failed to file appropriate petition, and after having actively participated in the subsequent fresh tender, the purported issues involved in this writ petition no longer survives and the JV is stopped from bringing this writ petition for having waived its purported right, if any. As such, this writ petition is rendered infructuous as nothing is left to be decided. Thereafter, as well, this writ petition not maintainable and deserves to be dismissed for being frivolous and baseless.” 11. He further submits that the petitioner was fully aware of the cancellation of the NIT dated 13.09.2019 and not only fresh NIT dated 18.12.2019 but even Letter of Acceptance (LOA) dated 16.03.2020, has been already issued in favour of the private respondent No. 5. It is a recognised principle of jurisprudence that a right of exercise for a long time, without any justifiable explanation, even assuming but not admitting that the petitioner has legally enforceable right, the writ petition is liable to be dismissed on the ground of delay and latches. To supplement his argument, Mr. Iralu has relied upon the Judgment of Madras High Court in the Case of South India Road Milk Transport –Vs- Government of Tamilnadu and Ors reported in 2020 SCC online Mad 13754 at para 19 and the Judgment of Chhisttisgarh High Court in WP (C) NO. 461 of 2016 para 5. 12. Mr. Borgohain has made statements in the bar that his argument with respect to the preliminary objections will be covered by the arguments placed by him at the time of hearing of the preliminary objections earlier and he adopts the same arguments in order to counter the arguments of Mr. Iralu as the said arguments of Mr. Borgohain advanced earlier covers all the points which has been raised by Mr. Iralu even at this stage and this Court has duly appreciated the same. However, he submits that the judgments referred by Mr. Iralu is not applicable in the facts and circumstances of the present case referring to this Court’s earlier order dated 04.10.2021. 13. Borgohain advanced earlier covers all the points which has been raised by Mr. Iralu even at this stage and this Court has duly appreciated the same. However, he submits that the judgments referred by Mr. Iralu is not applicable in the facts and circumstances of the present case referring to this Court’s earlier order dated 04.10.2021. 13. On scrutiny of the records, what transpires is that both these writ petitions are filed in consequence of the said order which was a consensual order. As from the records it revealed that there was no change of any pleadings but rather the cause-title of the parties was changed. So in light of the following backdrop this Court has to see whether the present petitions are hit by delay and laches and waiver as raised by Mr. Iralu. 14. The plea of the learned senior counsel Mr. Iralu is that since the petitioners withdrew their case which was pending since 2019, the date filing afresh must be construed to be the date of filing W.P.(C)93/2021 and W.P. (C)94/2021. It has been projected that there were 16 months delay, but it is not an argument based on sound principle, since W.P.(C)3/2020 and W.P.(C)249/2019 were withdrawn by a consensus order with liberty to file afresh. It could not be considered that there was latches and delay as the date of filing should be construed as if it had been continued from the initial date of filing and not as interpreted by the learned senior counsel Mr. Iralu. There is no laches and delay. There could have been grounds of laches and delay if the respondents had not agreed on withdrawal by the petitioner with liberty to file afresh. However, that was not the case. The petition was allowed to be withdrawn with the consent of the Respondent No. 5 to overcome only the technical difficulties which could have been cured even without withdrawal. The plea of delay for the Respondent is closed. 15. As recorded above Mr. However, that was not the case. The petition was allowed to be withdrawn with the consent of the Respondent No. 5 to overcome only the technical difficulties which could have been cured even without withdrawal. The plea of delay for the Respondent is closed. 15. As recorded above Mr. Iralu has referred to certain judgments to fortify his arguments so we shall discuss the same but we must be alive to the fact that it is a settled position of law that the ratio in a particular case is applicable only on the point of law however, every case has a peculiar facts and it is the duty of a court to see whether the authorities relied upon by a party can be made applicable in the given facts of a case. 16. I have perused those judgments and on perusal of the same this Court finds that the facts of those cases are totally opposite to the facts pleaded in the present case. In South India Road Milk Transport –Vs- Government of Tamilnadu and Ors reported in 2020 SCC online Mad 13754 relief was denied to the petitioner on grounds of delay and laches as he was a party to the proceedings in which the State respondents were directed by the High Court to upload the decision of cancelling the earlier tender and to call for fresh tender in accordance with law as the petitioners rate of L-1 was very exorbitant when compared to existing rates in the market. The petitioner who was a party in the said proceedings and whose presents the above statements were made did not seek the permission of the Government reserving its right to challenge the cancellation of the tender, rather the petitioner allowed the writ petition to be disposed off. And hence the petitioners filing the writ petition after four months was hit by delay and laches. 17. In the second case referred by Mr. R.Iralu, learned senior counsel on the point of delay and laches is Chhisttisgarh High Court in WP (C) NO. And hence the petitioners filing the writ petition after four months was hit by delay and laches. 17. In the second case referred by Mr. R.Iralu, learned senior counsel on the point of delay and laches is Chhisttisgarh High Court in WP (C) NO. 461 of 2016 para 5, In that case the petitioners had challenged the order cancelling the tender dated 16.12.2015 and fresh tender notice issued on 5.02.2016 the Hon’ble High Court held that the cancellation of the tender assailed by the petitioner is devoid of any merits as the respondents authorities before opening of the prices bids, they received certain complaints and after an enquiry on those complaints the tender process was cancelled on 16.12.2015. The Hon’ble High Court held that the cancellation of the tender by notice dated 16.12.2015 was with valid grounds and hence the petitioners challenging the same after periods of almost 2 months when fresh proceedings has been initiated was hit by delay. 18. Thus, the authorities relied upon by Mr. R. Iralu cannot come to his aid as the facts and circumstances of those cases are not in parameteria to the present case of the petitioners. With regard to the second argument of “waiver” canvassed by Mr.Iralu this court perused the record. And on perusal of the same it reveals that the petitioner had participated as a Joint Venture comprising of “Joint Venture Construction of M/S Vertex Construction, M/S Multi Builders & M/S Hi-Tech Construction” in the NIT dated 13.09.2019, the petitioners were declared as L-1 on 21.10.2019. The petitioners filed a writ petition for issuance of LOA on 9.12.2019. This court was pleased to issue notice to the state respondents in reference to the prayer made in the writ petition. The operating portion of the order 9.12.2019 is reproduced herein below; “Mr. Borgohain, learned counsel appearing for the petitioner submits that as per the Guidelines of the Ministry of Road Transport and Highways (MoRTH) of March, 2019, the respondents are required to issue a letter of acceptance to the petitioner within 75th day from the date of the issuance of the NIT dated 13.09.2019, i.e. on or before 27.11.2019 in the present case. Issue notice, returnable by 23.01.2020. As Ms. V. Suokhrie, learned Addl. Sr. Government Advocate has accepted notice on behalf of the State respondent Nos. 1 to 3 and Mr. Issue notice, returnable by 23.01.2020. As Ms. V. Suokhrie, learned Addl. Sr. Government Advocate has accepted notice on behalf of the State respondent Nos. 1 to 3 and Mr. K. Alin Rongmei, learned ASGI for the respondent No. 4, no formal notices need be issued to those respondents. The petitioner shall serve requisite number of copies of this petition including the annexures appended thereto to Ms. V. Suokhrie, learned Addl. Sr. Government Advocate of the State and Mr. K. Alin Rongmei, ASGI by 11.12.2019. In the meanwhile, the respondent Nos. 1 to 3 and 4 shall file their respective affidavits on or before 20.01.2020 by serving copies of the same to the learned counsel for the petitioner.” 19. But during the pendency of the matter the state respondents cancelled the earlier NIT vide Tender Cancellation Corrigendum dated 16.12.2019 by a fresh NIT dated 18.12.2019 was floated. In the second NIT a new Joint Venture comprising of Joint Venture Construction of “M/S Vertex Construction, M/S Hi-Tech Construction& M/S A.N.K. Construction” took part in the said bidding process. Thus on perusal of the same what transpires is that though two constituent of the Joint Venture took part in the second tender, the same cannot be construed as waiver the reason is the composition of Joint Venture had changed and also on perusal of the order passed by this court order dated 24.03.2020 reflects the same, the relevant portion of the order is extracted herein for ready reference: “On 13.09.2019 an NIT inviting bids from Class-I Contractors registered with the NPWD for construction of the same road mentioned above was issued and in that the two writ petitioners in this petition, namely M/s Hi-Tech Construction & Co. and Vertex Construction along with M/s Multi Builders which is a party in this case formed a joint venture and participated in the tender process. After the tender process was completed the joint venture consisted of M/s Hi-Tech Construction & Co. and M/s Multi-Builders were declared as the lowest bidders. But, since no Letter of Acceptance was issued, the writ petition being W.P.(C) No. 249/2019 was filed before this Court praying for issuance of appropriate writ or order or direction directing the respondents (the employer) to issue letter of acceptance. When the writ petition was moved on 09.12.2019, the respondents (the employer) were directed to file their reply on or before 21.01.2020. When the writ petition was moved on 09.12.2019, the respondents (the employer) were directed to file their reply on or before 21.01.2020. While the matter was pending thus, by a notification dated 16.12.2019, the whole tender process was cancelled. Being aggrieved by the cancellation order, the three firms filed another writ petition being W.P. (C) No. 75/2020 challenging the cancellation order. On 06.01.2020 when the petition was moved, this Court directed that the status quo as on that day in respect of the NIT dated 18.12.2019 be maintained by the respondents till 23.01.2020. The Court also directed that the case be send back to Kohima Bench and listed along with W.P. (C) No. 249/2019. On 27.02.2020, W.P.(C) No. 249/2019 and W.P. (C) No. 75/2020 which has been re-numbered as W.P.(C) No. 3/2020 came up before this Court. This Court on that day vacated the stay order passed in W.P.(C) No. 75/2020 which has been re-numbered as W.P.(C) No. 3/2020. Being aggrieved by the vacation of the interim order, the three firms filed an appeal being W.P.(C) No. 48/2020 before the Principal Seat. The appeal was moved on 04.03.2020 and the Division Bench without interfering with the order of the learned Single Judge sent back the record before this Bench with the following order; “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. 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 While the two writ petitions mentioned above are pending for adjudication, a fresh tender for the same work was issued on 18.12.2019. The bid of all the bidders was opened on 12.03.2020. The financial bid which is the second stage of the tender was opened and the respondent No.5 in the present writ petition i.e. W.P.(C) No. 52/2020 was declared to be the lowest bidder. Being aggrieved by the acceptance of the bid of the private respondent No.5, the three firms, namely M/s Hi-Tech Construction & Co., M/s Vertex Construction and M/s A.N.K. Construction who constituted a joint venture and bid for the work are before this Court through this writ petition challenging the acceptance of the bid of the respondent No.5. The main grounds on which the case of the petitioners is based are as follows; (i) That the bid of the respondent No.5 should not have been accepted because he had included in his list of technical personnel to be deployed for the execution of the construction work if at all granted to them some employee of the employer i.e. the NPWD which is prohibited by Clause- 2.6.4 of the SBD dated 18.12.2019, issued by the NPWD. (ii) That the price quoted by the respondent No.5 is lower than the estimated cost given in the NIT by 17.669% though, he had quoted the estimated cost in the earlier NIT issued by the respondents No. 1, 2 & 3. This was done with a mala-fide intention to deprive the other bidders in connivance with the State respondents”. 20. Hence the arguments of learned senior counsel Mr. This was done with a mala-fide intention to deprive the other bidders in connivance with the State respondents”. 20. Hence the arguments of learned senior counsel Mr. Iralu with respect to the Preliminary Objection pertaining to delay and laches and waiver are devoid of any merits and the same is overruled. 21. This brings us to hear the matter on merits. 22. Mr. Borgohain submits that in pursuance to the NIT dated 13.09.2019 the petitioner took part in the NIT and was declared as L- 1 but the petitioners were not issued the Letter-of-Acceptance. Mr.Borgohain submits that as per the guidelines of MORTH on march 2019 the State respondents are required to issue a letter of acceptance to the petitioners within 75 days from the date of issuance of the NIT dated 13.09.2019 which implies that in the present case the LOA ought to have been issued to the petitioner on or before 27.11.2019 which was not done in the present case. Therefore there was legitimate expectation for issuance of LOA. This court took cognizance of the said facts and vide order dated 9.12.2019 passed in W.P.(C) 249 directed the state respondents to file their affidavits on the plea made by the petitioners on or before 20.01.2020 and fix the matter on 23.01.2020. 23. Mr. Borgohain submits that the state respondents on 16.12.2019 vide tender cancellation corrigendum cancelled the tender dated 13.09.2019 by referring to the approval of the high level tender committee for NESIDS and NERSDS dated 22.11.2019, it has been submitted that the reasons for cancellation of the NIT was due to incomplete, irregular information regarding details of machineries/ technical persons furnished by the bidders. In pursuance to the said act the petitioners filed a fresh petition challenging the act of the state respondents pertaining to the cancellation of the NIT dated 13.9.2019 and hence prayed for quashing of the tender cancellation corrigendum dated 16.12.2019 and the subsequent NIT dated 18.12.2019. It is the case of the petitioners that the act of the state respondents is primarily act of administrative review of a judicial order, the act of the state respondent is contempt in nature, the act of state respondent is further coloured with malafide, and arbitrariness. 24. Mr. Borgohain to fortify his case has placed reliance on the judgment pronounce by the Hon’ble Apex Court. 24. Mr. Borgohain to fortify his case has placed reliance on the judgment pronounce by the Hon’ble Apex Court. Per contra the argument canvassed by the state respondent is that being declared L-1 no vested right accrues for issuance of LOA. Secondly, there is no question of legitimate expectation. Thirdly, there is no interim stay and as such the cancellation of the tender by the state respondents cannot amount to administrative review of judicial order, Fourthly, Mr. Jamir argued that since the NIT is issued in pursuance to the SBD guidelines set forth in MORTH is not applicable. Mr. Jamir refers to the clause of the SBD and submits that state has the power to cancel the NIT at any stage without assigning any reason. Mr. Jamir placed the judgment of the Hon’ble Apex Court to support his case. Mr.Iralu, learned senior counsel adopts the arguments canvassed by Mr. T.B Jamir. 25. The petitioners have sought from this court the exercise of judicial review with respect to the cancellation of the tender which was sub-judice in the present proceedings. The power of exercising judicial review in distribution of state largess/ tender matters has been settled by the Hon’ble Apex Court in the case of Tata Cellular Vs Union of India reported in (1996) 6 SCC 651. The relevant portions of the said judgment are extracted herein for aiding this Court to adjudicate this matter. “Scope of Judicial Review 69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender: 1. It must be unconditional. 2. Must be made at the proper place. 3. Must conform to the terms of obligation. 4. Must be made at the proper time. 5. Must be made in the proper form. 6. The person by whom the tender is made must be able and willing to perform his obligations. 7. There must be reasonable opportunity for inspection. 8. Tender must be made to the proper person. 9. It must be of full amount. 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. 9. It must be of full amount. 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself. 77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under : (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, “consider whether something has gone wrong of a nature and degree which requires its intervention”. 80. At this stage, the Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: “4. Wednesbury principle.— A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [(1948) 1 KB 223 : (1947) 2 All ER 680] , per Lord Greene, M.R.)” 81. Two other facets of irrationality may be mentioned. (1) It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker. If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld. Thus, in Emma Hotels Ltd. v. Secretary of State for Environment [(1980) 41 P & CR 255] , the Secretary of State referred to a number of factors which led him to the conclusion that a non-resident's bar in a hotel was operated in such a way that the bar was not an incident of the hotel use for planning purposes, but constituted a separate use. The Divisional Court analysed the factors which led the Secretary of State to that conclusion and, having done so, set it aside. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. Donaldson, L.J. said that he could not see on what basis the Secretary of State had reached his conclusion. (2) A decision would be regarded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Barnet London Borough Council, ex p Johnson [(1989) 88 LGR 73] the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority's parks was struck down. 94. The principles deducible from the above are : (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 26. Based on these principles this Court shall examine the facts of this case. It is been argued by Mr.T.B Jamir that the NIT is to be read according to the terms and conditions as stipulated in the Standard Bidding Document (SBD) and hence the arguments of the petitioner that the Letter of Acceptance (LOA) of to be issued on 75 day from the date of issuance of the NIT is factually incorrect, so what Mr. T.B Jamir is arguing is that if NIT dated 13.09.2019 is to be read in terms of the Standard Bidding Document (SBD) the petitioners does not have any case. Analysis and Findings. 27. To find answer to this argument this Court looks into the MORTH guidelines 2019 and on perusal of the same as reflected on clause 1.3 which is titled as schedule of bidding process the authority shall consider to the following schedule and in serial “No.11”, the authority is stipulated to issue letter of acceptance on 75 day from the date of issuance of NIT. Even in the affidavit-in-opposition filed by state respondent they have not denied that, the MORTH guidelines is not applicable in the present case, rather they have claimed that the NIT dated 13.09.2019 and the process adopted by the state respondent authorities were in conformity with the guidelines and the conditions issued by the Ministry of Road and Transport and Highways, Government of India and the North Eastern Council Secretariat (NECS). Further, The Court on perusal of letter dated 4.07.2019 issued by Ministry of DONER to the Secretary of North Eastern Council and the letter dated 5.08.2019 issued by North Eastern Council which are annexed as Annexure P-1 and Annexure-P- 2 in the Writ Petition W.P.(C) 94/2021 and on conjoint reading of the same it emerges as that the projects are time bound projects and hence the process of bidding from the date of issuance of NIT to the awarding of work are to be completed within a period of three months. Thus in view of the above facts what can be deduced is that the NIT dated 13.09.2019 and the SBD has to be executed as stipulated under the MORTH guidelines hence the arguments of Mr.T.B Jamir that the MORTH guidelines is not applicable in the present case is both factually and legally wrong and hence the court reject the arguments. 28. Mr.T.B Jamir has relied upon two judgment of the Hon’ble Apex Court to argue that no right is accrued in favour of the lowest bidder for awarding of work and the cases cited are MAA BINDA EXPRESS CARRIER AND ANR. -Vs- NORTH EASTERN FRONTIER RAILWAY ORS, reported in (2014) 3 SCC 760 . 28. Mr.T.B Jamir has relied upon two judgment of the Hon’ble Apex Court to argue that no right is accrued in favour of the lowest bidder for awarding of work and the cases cited are MAA BINDA EXPRESS CARRIER AND ANR. -Vs- NORTH EASTERN FRONTIER RAILWAY ORS, reported in (2014) 3 SCC 760 . In that case the issue the Hon’bel Apex Court looked into was that whether the employer was correct in issuing the communication dated 06/09/2011 vide which the tender process was cancelled. The Hon’ble Apex Court held that the decision to cancel the tender process was in no way discriminatory or malafide on the contrary if a contract have been awarded despite the deficiency in the tender process as there was absence of all important penalty clauses in the NIT, serious questions touching the legality and propriety effecting the validity of the tender process would have arisen at later stage. But this is not the case of the respondents that the tender process did not have any deficiencies nor there were any absence of any important clause in the tender papers which would have serious implications in implementation of the project in the future date. UTTAR PRADESH AVAS EVAM VIKAS PARISHAD AND ORS. -VS- OM PRAKASHSHARMA reported in (2013) 5 SCC182; In this case the Hon’ble Apex Court held that when a bidder who has not been issued the final acceptance of the bid by the competent authority being the highest bidder acquires no vested right, but the bidder has right to equality and fair treatment in the matter of competitive bids offered by the interested persons in response to the notice inviting tenders in a transparent manner and free from hidden agenda. This court finds that the above judgment does not come to the aid of the state respondents but rather it would go against them as in the pleading filed by the state respondent has clearly accepted that they have followed the MORTH guidelines in toto. But on facts the same was not complied. 29. In light of the above discussions this court finds that the issuance of LOA has to be done by the state respondent within 75 days from the issuance of the tender, which in the present case would be 27/11/2019. In the instant case, right was accrued to the petitioner. There were legitimate expectations. 30. 29. In light of the above discussions this court finds that the issuance of LOA has to be done by the state respondent within 75 days from the issuance of the tender, which in the present case would be 27/11/2019. In the instant case, right was accrued to the petitioner. There were legitimate expectations. 30. Now coming to the second issue whether the act of the state respondent in cancellation of the tender dated 13/09/2019 vide tender cancellation corrigendum dated 16/12/2019 was a valid exercise on the part of the State respondents, Mr. Borgohain referring to the order dated 09/12/2019 passed in W.P.(C) 187/2019and W.P.(C)249/2019 which are appended as annexure P/12 and Annexure P/13 and also referring to the tender cancelation corrigendum dated 16/12/2019 in the writ petition submits that the act of the state respondent is primarily driven by ulterior motives and arbitrariness and also act as administrative review of a judicial order. He further submits that the reasons cited by the state respondent in the cancellation of the tender is totally a covert act done by the state respondent to favour a particular person in the said bid. To substantiate his argument Mr. Borgohain submits that the present tender process is two tires i.e. technical bid and financial bid if a particular entity is technically qualified then only they are financially scrutinized. He submits that the details provided by the bidder with respect to the technical bid are governed by relevant clauses in the SBD and as set forth under the MORTH guidelines. He draws the attention of various clauses and submits that nowhere the reason cited by the state respondent in the impugned tender cancellation corrigendum dated 16/12/2019, delves into technical evaluation of the bidder as stipulated under tender clauses. For ready reference the concerned clause is reproduced herein SECTION-III EVALUATION OF TECHNICAL BIDS AND OPENING & EVALUATION OF FINANCIAL BIDS 3.1.6 Tests of responsiveness 3.1.6.1 As a first step towards evaluation of Technical Bids, the Employer shall determine whether each Technical BID is responsive to the requirements of this SBD. For ready reference the concerned clause is reproduced herein SECTION-III EVALUATION OF TECHNICAL BIDS AND OPENING & EVALUATION OF FINANCIAL BIDS 3.1.6 Tests of responsiveness 3.1.6.1 As a first step towards evaluation of Technical Bids, the Employer shall determine whether each Technical BID is responsive to the requirements of this SBD. A Technical BID shall be considered responsive only if: (a) Technical BID is received online as per the format at Appendix-IA including Annexure I, IV, V and VI (Bid Capacity format); (b Documents listed at clause 2.11.2 are received physically as mentioned; (c) Technical Bid is accompanied by the BID Security as specified in Clause 1.2.4 and 2.20; (d) The Power of Attorney is uploaded on e-procurement portal as specified in Clauses 2.1.5; (e) Technical Bid is accompanied by Power of Attorney for Lead Member of Joint Venture and the Joint Bidding Agreement as specified in Clause 2.1.6, if so required; (f) Technical Bid contains all the information (complete in all respects); (g) Technical Bid does not contain any condition or qualification; and (h) Copy of online receipt /original Demand towards payment of cost of Bid document of Rs 25,000(Rupees Twenty Five Thousand only) to The Chief Engineer, PWD(R&B), Nagaland, Kohima towards the cost of bid document. Appendix IA ANNEX-II ANNEX-II Technical Capacity of the Bidder (Refer to clauses 2.2.2.2, 2.2.2.5 and 2.2.2.7 of the SBD) Applicant type Project code* Category’s Experience** (Equivalent Rs.crore)$$ Technical Experience Payments received for construct ion of eligible projects in categories 3 & 4 Value of self-construction in eligible projects in categories 1 & 2 (1) (2) (3) (4) (5) (6) Single entity Bidder or Lead Member including other members of the Joint Venture a b c d e f Aggregate Technical Experience= 31. Refuting the argument of Mr. Borgohain, Mr. Jamir submits that the clauses provided under the SBD empower the employer to cancel the NIT at any stage of the proceeding without assigning any reason. He further submits that there was no interim protection granted to the petitioner by this court and hence in the absence of any interim order the respondent authority in cancelling the tender cannot amount to administrative review of the judicial order. Mr. Iralu on behalf of the respondent No. 5 adopts the arguments canvassed by Mr. T.B Jamir. 32. He further submits that there was no interim protection granted to the petitioner by this court and hence in the absence of any interim order the respondent authority in cancelling the tender cannot amount to administrative review of the judicial order. Mr. Iralu on behalf of the respondent No. 5 adopts the arguments canvassed by Mr. T.B Jamir. 32. From the pleadings what transpires is that, this Court while taking cognizance of the matter vide order dated 9.12.2019 (supra) has clearly directed the State Respondents to file their reply pertaining to the prayer made in the Writ Petition. But the State Respondent authorities being aware of the fact that already the so called High level tender committee has already cancelled four number of projects of the same NIT dated 13.09.2019 in reference to their meeting on 22.11.2019 and subsequently cancelled the present project which is the subject matter of this present case amounts to none disclosures of relevant facts before the Court. They ought to have informed the said fact to this Court. But the same was not revealed, furthermore the State Respondent have not denied to the fact that the present matter was subjudiced before this Court. Further, without saying much the act of the state Respondent in issuing the impugned tender cancellation corrigendum smacks of arbitrariness, once this Court take note of the order passed by this Court on 24.03.2020 (supra). 33. The Hon’ble Apex Court in the case of Siemens Aktiengeselischaft & Siemens Ltd. v. DMRC Ltd., reported in (2014) 11 SCC 288 held that : “ 16. It was argued that DMRC had also, in its reply dated 14-8-2013 sent to the Government, clearly stated that it would not respond to the preliminary observations of the Committee as the matter had in the meantime travelled to this Court and was sub judice. Legal opinion obtained by DMRC from a Senior Advocate of this Court also advised that in a matter that is sub judice, any report by any outside enquiry committee appointed by the Government would be impermissible and improper nor would it be advisable for DMRC to participate in any such exercise. Legal opinion obtained by DMRC from a Senior Advocate of this Court also advised that in a matter that is sub judice, any report by any outside enquiry committee appointed by the Government would be impermissible and improper nor would it be advisable for DMRC to participate in any such exercise. In the premises it was contended that the report by the Enquiry Committee submitted to this Court in a sealed cover need not be looked into as the same was wholly extraneous to a judicial review of the process of evaluation and eventual award of the contract by DMRC, the authority competent to do so. Relying upon the decisions of this Court in Amrik Singh Lyallpuri v. Union of India [ (2011) 6 SCC 535 ] and Union of India v. K.M. Shankarappa [ (2001) 1 SCC 582 ], it was argued that administrative review of a judicial decision was not legally permissible. It was also contended by Mr Andhyarujina that pursuant to the allotment made in their favour, HR had taken substantial steps towards implementation of the project and that interference with the award of the contract at this belated stage was neither in public interest nor otherwise justified in the facts and circumstances of the case. 17. Appearing for Respondent 2 HR, Mr Venugopal, learned Senior Counsel adopted the submissions of Mr Andhyarujina and took strong exception to the constitution of a Committee by the Minister of Urban Development, Government of India on a subject which was sub judice before the High Court. It was contended by Mr Venugopal that the constitution of the Committee was not only against the sound advice tendered by the Secretary to the Government, Ministry of Urban Development Department but was tantamount to interference with the course of justice. It was contended by Mr Venugopal that the constitution of the Committee was not only against the sound advice tendered by the Secretary to the Government, Ministry of Urban Development Department but was tantamount to interference with the course of justice. Relying upon the decision of the Full Bench of the High Court of Patna in R. v. Parmanand [AIR 1949 Pat 222] and D. Jones Shield v. N. Ramesam [ AIR 1955 AP 156 ] , P.C. Sen, In re [ AIR 1970 SC 1821 : 1970 Cri LJ 1525] and Jang Bahadur Singh v. Baij Nath Tiwari [ AIR 1969 SC 30 : 1969 Cri LJ 267] , Mr Venugopal argued that when a matter is pending adjudication before a court of law, nothing can be done which might disturb the course of justice by either interfering with the judicial process or prejudging the merits of the case or by usurping the functions of the court having seisin over the proceedings. Any such practice, argued the learned counsel, was fraught with danger and would amount to opening the door for contempt for those responsible for such interference. It was further contended by Mr Venugopal that judicial review in tender cases was limited to examining the decision-making process and not the decision itself. Reliance in support of that submission was placed by the learned counsel upon the decisions of this Court in Tata Cellular v. Union of India [Tata Cellularv. Union of India, (1994) 6 SCC 651 ] , Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. [ (1997) 1 SCC 738 ] , Monarch Infrastructure (P) Ltd. v. Ulhasnagar Municipal Corpn. [ (2000) 5 SCC 287 ], Jagdish Mandal v. State of Orissa [ (2007) 14 SCC 517 ] and Heinz India (P) Ltd. v. State of U.P. [ (2012) 5 SCC 443 : (2012) 3 SCC (Civ) 184 : (2012) 3 SCC (Cri) 198] It was submitted that the decision-making process in the instant case was transparent, fair and reasonable and that the High Court had after a careful examination of all aspects correctly held that there was no illegality or irregularity in the said process to warrant interference. 27. 27. That brings us to the question whether the Government of India was justified in appointing a Committee to test the evaluation of bids and, if so, whether this Court ought to look into the report of the Committee. There is more than one aspect that needs to be kept in view in this regard. The first and foremost is the fact that the Committee was appointed at a stage when the matter was already pending before the High Court. Considerable time was spent by the learned counsel for the parties in debating whether the constitution of the Committee by the Government itself tantamounted to interference with the course of justice, hence contempt. We do not, however, consider it necessary to pronounce upon that aspect in these proceedings especially because we have not been called upon to initiate such contempt proceedings. All that we need say is that once the Government had known that the entire issue regarding the validity of the process adopted by DMRC including the transparency and fairness of the process of evaluation of the bids was sub judice before the High Court of Delhi and later before this Court, it ought to have kept its hands off and let the law take its course. It could have doubtless placed all such material as was relevant to that question before the High Court and invited a judicial pronouncement on the subject instead of starting a parallel exercise. The Government could even approach the High Court and seek its permission to review the process of evaluation either by itself or through an expert committee if it felt that any such process would help the Court in determining the issues falling for consideration before the Court more effectively. Nothing of that sort was, however, done. On the contrary even when the Secretary to MoUD pointed out that the matter is sub judice and any further action in the matter could await the pronouncement of the Court, the Hon'ble Minister heading MoUD directed the constitution of the Committee with the following terms: “2 (1) to examine if a fair, equitable and transparent tender process was followed by DMRC, as per the prescribed guidelines.” 28. We have no manner of doubt that the terms of reference give a clear indication that the process initiated by the Government was a parallel process of the adjudication of the very same issue which fell for consideration before the High Court and at a later stage before this Court. We fail to appreciate how the Government could have possibly done this. Confronted with this situation Mr. Mohan Parasaran, learned Solicitor General, argued that a reference to the Committee was not meant to subvert judicial process but to only find ways and means to formulate policies and procedures for future allotment of contracts. We have no hesitation in rejecting that submission. The reference order extracted above speaks for itself. It nowhere states that the Committee has to look at anything beyond the process of evaluation of tenders received by DMRC. It does not even remotely suggest that the Government is concerned about the procedures that may be followed in the future or anxious to devise transparent methods by which such contract should be allotted. What is notable is that the Committee's hands were not stayed by the Government even when the High Court had pronounced upon the validity of the procedures adopted by DMRC and the matter reached this Court. Continuance of the process of review even after the High Court had delivered its judgment [Siemens Aktiengesellschaft and Siemens Ltd. v. Delhi Metro Rail Corpn. Ltd., (2013) 200 DLT 651 ] amounted to subjecting the judicial pronouncement to an administrative review. There was no question of any such judicial determination or adjudication being subjected to any administrative review albeit in the name of a Committee constituted for the purpose. 29. Mr Parasaran argued that the Committee's proceedings did not amount to sitting in appeal over the judgment [Siemens Aktiengesellschaft and Siemens Ltd. v. Delhi Metro Rail Corpn. Ltd., (2013) 200 DLT 651 ] of the High Court. The Committee may have not said anything adverse to the view taken by the High Court but if the Committee were to find fault with the evaluation process which the High Court has held to be valid it indirectly amounted to putting a question mark on the judgment [Siemens Aktiengesellschaft and Siemens Ltd. v. Delhi Metro Rail Corpn. Ltd., (2013) 200 DLT 651 ] of the High Court itself. Ltd., (2013) 200 DLT 651 ] of the High Court itself. Suffice it to say that the Government ought to have stayed its hands once the matter landed in the Court. Inasmuch as the Government did nothing of this kind, it did not act properly. Beyond that we do not consider it necessary or proper to say anything at this stage.” 34. This court is alive to the fact that when WP (C) 187/2019 was moved on 1.10.2019 and the same was pending till 9.12.2019 , the State Respondents have already cancelled the tender of four projects published in the same NIT dated 13.09.2019, in pursuance to the High level Tender Committee meeting held on 22.11.2019. Now on perusal of the impugned tender cancellation corrigendum dated 16.12.2019 it reveals that the cancellation of the present tender was also decided by the High level Tender Committee meeting held on 22.11.2019. But the said facts were hidden from this Court, when the matters were in seisin by the Court. Moreover, the reason cited in the impugned corrigendum dated 16.12.2019 is also devoid of any merits as the same has got no bearing in the technical qualification of any bidder, and if there was any such bearing then the question arises is how come the petitioner and other two bidders were declared technically qualified. 35. Thus, in light of the above discussions this Court finds that the act of the State Respondent in not issuing the Letter of Acceptance to the Petitioner was in violation of the MORTH guidelines and further the entire process of cancellation of tender by the State Respondents vide the tender cancellation corrigendum dated 16.12.2019 and issuance of the NIT dated 18.12.2019 was a sub-judicial act driven by arbitrariness, and colourable exercise of power. The tender cancellation corrigendum dated 16.12.2019 and issuance of the NIT dated 18.12.2019 and all the consequential actions that might have been carried out by the State respondents are hereby quashed and set aside. 36. There has been inordinate delay in disposal of the instant writ petitions. There is a PIL filed in connection to this road project, at the same time, the NEC has expressed its desire to withdraw the advance money sanctioned for the project since it was not utilized in the stipulated time. The same issue came up before this Court, however, the prayer was not allowed in public interest. There is a PIL filed in connection to this road project, at the same time, the NEC has expressed its desire to withdraw the advance money sanctioned for the project since it was not utilized in the stipulated time. The same issue came up before this Court, however, the prayer was not allowed in public interest. There is urgency and public interest in the matter. 37. Accordingly this Court directs the State respondents to issue Letter of Acceptance to the Petitioners who are qualified in the NIT dated 13.12.2019 within a period of two weeks from today considering that the project is of immense importance having been delayed by the pendency of these writ petitions. 38. Copy of the Order be furnished to the parties immediately since the Court will go on vacation from tomorrow. These petitions are allowed in the above terms.