JUDGMENT : Devashis Baruah, J. 1. Heard Mr. S. Borgohain, learned counsel appearing for the petitioner, Mr. T.B. Jamir, learned Senior Additional AG appearing for the State respondent, and Mr. R. Iralu, learned Senior Counsel assisted by Mr. L. Iralu, for the private respondents. 2. These three applications are taken up together for disposal pursuant to the order passed by the Division Bench of this Court in its Judgment and Order dated 08.02.2022 in Writ Appeal No. 3/2022, Writ Appeal No. 361/2021, Writ Appeal No. 359/2021 and Writ Appeal No. 360/2021. The brief facts of the instant case is that on 24.07.2019, the Under Secretary to the Government of India, Ministry of Development of North Eastern Region had issued a communication to the Secretary of North Eastern Council thereby conveying Administrative and Financial sanction for an amount of Rs. 136.96/- Crores for the project "Tening to Lekie Road" (37.5 kms) in Nagaland under the 100% Central Sector Scheme "North-East Road Sector Development Scheme" (NERSDS); and pursuant to the said communication dated 24.07.2019, the Adviser to the North Eastern Council by its letter dated 05.08.2019 had accorded the Administrative approval to the Public Works Department (PWD), Government of Nagaland at an estimated cost of Rs. 136.96/- crores as per the broad break up of the items of the work given in Annexure-1 of the said communication towards the road project "Tening to Lekie Road" (37.5 kms) in Nagaland under the 100% Central Sector Scheme "North-East Region Sector Development Scheme"(NERSDS). On the basis of the said approval, the Chief Engineer, PWD (R & B) issued a notice inviting tender, vide NIT No. CE/(R & B)/NERSDS/CORR(Part I)/2019-20 dated 13.09.2019 in respect to five different works including the work "Tening to Lekie Road" in Nagaland. The said NIT was published in the local newspapers in the State of Nagaland. 3. The petitioner Nos. The said NIT was published in the local newspapers in the State of Nagaland. 3. The petitioner Nos. 1 and 2 who claims to be Class-1 contractors registered with the Nagaland Public Works Department and interested to participate in the competitive bidding process initiated on the basis of the NIT dated 13.09.2019 for the work "Tening to Lekei Road" in Nagaland mentioned at Serial No. 4 of the said NIT filed a Writ Petition No. 187/2019, assailing certain criteria adopted by the respondent authorities in respect of the work in question in NIT dated 13.09.2019 and more particularly with respect to the lowest rate/approved rate/SOR apart from the decision taken in the pre-bid meeting dated 24.09.2019. It was the specific case of the petitioner Nos. 1 and 2 in the said proceedings that the process adopted by the respondent authorities in respect of the work were contrary to the guidelines in the communication dated 05.03.2019 of the Ministry of Road, Transport and Highways (MoRTH), Government of India, and the Conditions No. 2 (vi) of the communication dated 05.08.2019 issued by the North Eastern Council Secretariat (NECS) while granting the administrative approval to the NPWD for the work in question. The said Writ Petition was registered and numbered as WPC/187/2019. This Court vide its order dated 01.10.2019 issued notice making it returnable by 01.11.2019 but did not grant any interim order as prayed for therein, and thereby deferred the consideration of the interim order to 01.11.2019. In the meanwhile, the petitioner Nos. 1 and 2 participated in the said tender process by submitting a bid as a joint venture that is "Vertex-Multi Builder-Hi-Tech. On 19.10.2019, the technical bid was opened in which the said joint venture, i.e., "Vertex-Multi Builder-Hi-Tech", along with two other bidders were found to be technically viable and on 21.10.2019, the financial bid was opened and it was found that the price quoted by the joint venture i.e., "Vertex-Multi Builder-Hi-Tech" was the lowest at Rs. 1,22,94,22,509.75p. 4. The said Writ Petition being WP(C) No. 187/2019 came up for consideration on 01.11.2019. 1,22,94,22,509.75p. 4. The said Writ Petition being WP(C) No. 187/2019 came up for consideration on 01.11.2019. On the said date the respondent authorities appraised this Court on the basis of communication No. CON/ENC/LEGAL/GEN-80/2019-20/69 dated 31.10.2019 stating inter-alia that the petitioner had participated on joint venture, i.e., Vetex-Multi Builder-Hi-Tech in the project "Tening-Lekie Road" in Nagaland (37.5 kms) and having technically qualified, the financial bid of the petitioner along with the other qualified bidders were opened on 21.10.2019. It was found that the petitioners' firm was 0.007% below the BOQ Rate and the Department had admitted the rate and considered its bid. It was also mentioned vide the said communication that the tender evaluation process is in progress and the final selection of the contractor is yet to be finalized. Thereafter the petitioner Nos. 1 and 2 withdrew the said WP(C) No. 187 of 2019 and filed another writ petition which was registered and numbered as WP(C)/249/2019. The said writ petition was filed by the petitioner Nos. 1 and 2 seeking a direction for issuance of the letter of acceptance to the joint venture i.e., Vertex-Multi Builder-Hi-Tech. This Court vide order dated 09.12.2019 issued notice making it returnable by 23.01.2020. 5. At this stage, it may be relevant herein to mention that the NIT dated 13.09.2019 tender was issued for five different works including the road work from " Tening to Lekie Road" in Nagaland. The tendering authority, i.e., the Chief Engineer, PWD (R & B), Nagaland, in exercise of the provisions of Clause 2.16.1 of the Standard Bidding Document annulled/cancelled the tender process in respect of the various works excluding the work from "Tening to Lekie Road" in Nagaland by a Tender Cancellation Corrigendum dated 06.12.2019. The said action was taken on the recommendation and approval of the High Level Tender Committee (HLTC) for NESIDS & NERSDS dated 22.11.2019. Further to that effect, another tender cancellation corrigendum dated 16.12.2019 was issued on the ground that the bidders had uploaded/submitted incomplete/irregular information regarding details of machineries/technical personnel and thereby, the entire tender process from "Tening to Lekie Road" in Nagaland was also cancelled with the approval of the High Level Tender Committee (HLTC) for NESIDSN ERSDS dated 22.11.2019. Further to that effect, another tender cancellation corrigendum dated 16.12.2019 was issued on the ground that the bidders had uploaded/submitted incomplete/irregular information regarding details of machineries/technical personnel and thereby, the entire tender process from "Tening to Lekie Road" in Nagaland was also cancelled with the approval of the High Level Tender Committee (HLTC) for NESIDSN ERSDS dated 22.11.2019. Further to that, on 18.12.2019 in respect to the same work that is " Tening to Lekie Road" in Nagaland, a fresh notice inviting tender was issued by the Chief Engineer, PWD (R & B), Nagaland and it was mentioned that on 09.01.2020 up to 1600 hrs online bid submission would be accepted and the online bid would be opened on 10.01.2020. 6. The petitioner Nos. 1 and 2, being aggrieved, filed a Writ Petition before the Principal Seat of this Court which was registered and numbered as WP(C) No. 75 of 2020 and this Court vide its order dated 06.01.2020 directed Status Quo be maintained as on the date of the said order in respect to the NIT dated 18.12.2019 till 23.01.2020. It was also mentioned that the motion hearing stage in respect to the said writ petition i.e., WP(C) No. 75/2020 being over and the matter was directed to be transferred to the Kohima Bench of this Court. It may be relevant to take note that upon being transferred to Kohima Bench, the said Writ Petition being WP(C) No. 75/2020 was renumbered as WP(C) 3(K)/2020. 7. Thereupon, vide an order dated 27.02.2020 this Court in WP(C) 249/2019 observed that the tender process initiated in NIT dated 13.09.2019 in respect of construction of road from "Tening to Lekie Road" in Nagaland and the Joint Venture comprising of 3 (three) parties/individuals, namely-M/S. Vertex Construction, M/S. Multi Builders and M/S. HiTech Construction & Co., being not before this Court, this Court, prima facie, was of the view that the writ petition was not maintainable at the instance of only one party/individual of the Joint Venture, namely, M/S. Hi-Tech Construction & Co. alone, in as much as, it was the Joint Venture as one entity which had participated in the tender process, pursuant to NIT dated 13.09.2019. By the said order dated 27.02.2020, this Court had also vacated the interim order dated 23.01.2020 on the ground that the petitioners therein have not made out any prima-facie case for continuation of the interim order. 8. By the said order dated 27.02.2020, this Court had also vacated the interim order dated 23.01.2020 on the ground that the petitioners therein have not made out any prima-facie case for continuation of the interim order. 8. A challenge was made to the order dated 27.02.2020 before the Division Bench of this Court in Writ Appeal No. 48/2020. By an order dated 04.03.2020, the Division Bench disposed of the said Writ Appeal with a request to this Court to dispose of the writ proceedings on 09.03.2020 or at the earliest. It was also observed that the issue of curing the defect in the Writ would depend on filing of application by the Writ Petitioners therein that is the petitioner No. 1 and 2 herein and the laws governing the issue in regard to which the Writ Court shall adjudicate and decide. 9. Subsequently, the petitioner Nos. 1 and 2 herein filed an I.A. Civil No. 20/2020 seeking impleadment of two respondents in WP(C) No. 3/2020. This Court had issued notice making it returnable on 16.03.2020. In the meantime, on 16.03.2020, vide communication bearing No. CE(R & B)/NERSDS/NIT/2019-20/823-29 the letter of acceptance was issued to the respondent No. 5 herein at the quoted rate amounting to Rs. 101.24 crores plus applicable taxes and four years maintaining charges totalling to Rs. 108.96 Crores. By the said Letter of Acceptance, the respondent No. 5 was requested to furnish Performance Security(PS) for an amount of 7.33 crores as per Clause 2.2.1 of the SBD; an amount of Rs. 5.45 crore as 5% PS against the bid price and Rs. 1.88 crores as additional P.S. as per Clause 2.2.2.1(i) within 20 days of the receipt of letter of acceptance that is on or before 04.04.2020 and in accordance with Clause 2.2.1 of the SBD. 10. Immediately thereafter on 18.03.2020 the Writ Petition No. 52/2020 was filed for quashing and directing the State Respondents to disqualify the respondent No. 5 with respect to the bidding process NIT dated 18.12.2019 since respondent No. 5 submitted for evaluation in technical bid gets attracted to the disqualification Clause 2.6.4 of the SBD and for a direction to the State respondents to declare the petitioner as L-1, and issue Letter of Acceptance, with respect to the NIT dated 18.12.2019. It is relevant to take note that the Letter of Acceptance in favour of the respondent No. 5 dated 16.03.2020 has not been put to challenge by the writ petitioners herein. At this stage, it may be relevant to mention that though the bid on behalf of the petitioners were submitted in the form of a joint venture, but the joint venture was not a petitioner before this Court. 11. The instant writ petition, i.e., WP(C)/52/2020 came up for motion on 24.03.2020 and vide detailed order this Court issued notice making it returnable by two weeks and held that the Letter of Acceptance shall be subject to the outcome of the writ petition. In the meantime, this Court had also taken into consideration the Interlocutory Application I.A. Civil No. 20/2020 filed in WP(C) No. 3/2020 whereby the petitioner Nos. 1 and 2 herein sought for impleadment of the petitioner No. 4, one Shri. Hohoto Jakhalu, Proprietor of one M/s. Multi Builders and Joint Venture Construction of Vertex-Multi Builder-Hi-Tech. This Court by an order dated 19.03.2021 rejected the said application however, granting liberty to the petitioner Nos. 1 and 2 who were the petitioners in WP(C) 3(K)/2020 as given by the Division Bench to file proper petition to cure the defect in the Writ Petition. The record further shows that this Court vide order dated 28.04.2021, the petitioner Nos. 1 and 2 herein who were the petitioners in WP(C) No. 3(K)/2020, WP(C)/249(K)/2019 and I.A. Civil 35/2021 were permitted to withdraw the said petitions with liberty to file afresh by adopting the procedure as prescribed by law. 12. Thereupon, on 29.04.2021 two Writ Petitions were filed by the Joint Venture Construction of M/s. Vertex construction, M/s. A.N.K. Construction and Ms. Hi-Tech Construction and Co. and the constituents of the said joint venture as petitioners which were registered and numbered as WP(C)/93(K)/2021 and WP(C)/94(K)/2021. In WP(C)/93(K)/2021 the petitioners therein sought for issuance of the Letter of Acceptance to the petitioners in view of being qualified as L-1 with respect to NIT dated 13.09.2019. In WP(C)/94/2020, the petitioners therein sought for quashing the tender Cancellation Corrigendum dated 16.12.2019 with respect to NIT dated 13.09.2019 and all consequential proceedings including the issuance of NIT dated 18.12.2019. 13. The record reveals that pleadings were exchanged between the parties. All the three Writ Petitions i.e., WP(C)/52/2020, WP(C)/93/2021 and WP(C)/94/2021 were taken up for hearing by this Court. In WP(C)/94/2020, the petitioners therein sought for quashing the tender Cancellation Corrigendum dated 16.12.2019 with respect to NIT dated 13.09.2019 and all consequential proceedings including the issuance of NIT dated 18.12.2019. 13. The record reveals that pleadings were exchanged between the parties. All the three Writ Petitions i.e., WP(C)/52/2020, WP(C)/93/2021 and WP(C)/94/2021 were taken up for hearing by this Court. Vide Judgment and Order dated 15.12.2021, this Court was of the opinion that the act of the State respondents in not issuing the Letter of Acceptance was in violation of the MoRTH guidelines and further the process of cancellation by the State respondents vide Tender Cancellation Corrigendum dated 16.12.2019 and the issuance of the NIT dated 18.12.2019 were sub-judicial act driven by arbitrariness and questionable exercise of power, the Tender Cancellation Corrigendum dated 16.12.2019 and the issuance of the NIT dated 18.12.2019 and all consequential actions that may have been carried out by the State respondents were set aside and quashed. Further to that, it was directed that the State respondents should issue the Letter of Acceptance to the petitioners therein who were qualified in the NIT dated 13.12.2019 within a period of two weeks from the date of the said Judgment considering that the project is of immense importance which was held back on account of the pendency of the Writ Petitions. It was also relevant at this stage to take note that in view of allowing both WP(C)/93/2021 and WP(C)/94/2021, this Court in the said Judgment and order dated 15.12.2021 did not have the occasion to deal with the merits in respect to the WP(C)/52/2020. Against the said Judgment and Order dated 15.12.2021 in WP(C)/52/2020, WP(C)/93/2021 and WP(C)/94/2021; four Writ Appeals were filed before the Division Bench of this Court which were registered and numbered as Writ Appeal No. 3/2022, Writ Appeal No. 361/2021, Writ Appeal No. 359/2021 and Writ Appeal No. 360/2021. The Division Bench of this Court vide a Judgment and Order dated 08.02.2020 disposed of all the Writ Appeals. In doing so, the Division Bench upheld that cancellation of the tender process vide Tender Cancellation Corrigendum dated 16.12.2019 on the ground that the same has been done so in accordance with law. The Division Bench of this Court vide a Judgment and Order dated 08.02.2020 disposed of all the Writ Appeals. In doing so, the Division Bench upheld that cancellation of the tender process vide Tender Cancellation Corrigendum dated 16.12.2019 on the ground that the same has been done so in accordance with law. The relevant said portion of the said judgment in that respect is quoted herein below:- "Be that as it may, the fact remains that the employer always has a liberty to cancel a tender process. Undoubtedly, M/s. Naagaamii Infratech Private Limited was L-1, but the offer of L-1 was only in the nature of an offer and till it was accepted by the employer, i.e. the State of Nagaland, no contract had actually been finalised. The employer can always withdraw the tender, particularly when powers have been given to it in Clause 2.16.1 of the SBD. Moreover, it is not a simple case of withdrawal but here reasons for withdrawal were also assigned, which appear to be cogent reasons. Therefore, we are of the considered view that cancellation of the first tender process on 16.12.2019 cannot be faulted, as the same has been done in accordance with law. From a perusal of the judgment & order of the learned Single Judge also, we do not find that the learned Single Judge has gone into the anomaly and defect in the second bidding process. The primary reason assigned by the learned Single Judge is that the first tender process should not have been cancelled and since in that process M/s. Naagaamii Infratech Private Limited was L-1, such a direction had been given." It also appears from a perusal of the said Judgment and Order dated 08.02.2022 that the learned counsel who was appearing for the petitioners herein, had also appeared before the Writ Appellate Court and had submitted that elaborate submissions were made before this Court as regards to the information which he had received through Right to Information Act and various other sources about the capability of respondent No. 5 and were placed before this Court: to the effect that Respondent No. 5 herein was not even a qualified technical bidder and therefore it was not liable to be given the contract. It is on the basis of the said submission made by the learned counsel appearing on behalf of the petitioners herein before the Writ Appellate Court, the Division bench was of the opinion that since the said aspect of the matter has not been examined by this Court in as much as the Court had not taken into account the technical capability and other aspects of respondent No. 5 as well as the Joint venture Construction, the Division Bench deemed it proper to remand the matter back to this Court for fresh appraisal making it clear that this should be done only as regards to the second tender process which was initiated by the NIT dated 18.12.2019 and the eligibility of the respondent No. 5 as L-1 and the contract being given in its favour shall be further examined by this Court. The Judgment and Order dated 15.12.2021 was set aside and the matter was remanded back to this Court for fresh appraisal and liberty was given to the parties to raise all legal and factual aspects before this Court which would be decided in accordance with law and the parties were also granted liberty to file necessary pleadings before this Court. The said portion of the judgment and order dated 08.02.2022 passed by the Division Bench is quoted herein below:- "Mr. S. Borgohain, on the other hand, would argue that elaborate submissions were made before the learned Single Judge. The information which he had received through RTI and various other sources about the capability of M/s. Naagaamii Infratech Private Limited were placed before the learned Single Judge. It had also been submitted before the learned Single Judge that the writ appellant, i.e. M/s. Naagaamii Infratech Private Limited was not even a technically qualified bidder and, therefore, it was not liable to be given the contract. However, since this aspect has not been examined by the learned Single Judge, in as much as, the learned Single Judge has not gone into the technical visibility, capability and other aspects of M/s. Naagaamii Infratech Private Limited as well as Joint Venture Construction, we deem it proper to remand the matter back to the learned Single Judge for a fresh appraisal. We, however, make it very clear that this should be done only as regarding the second tender process which was initiated by the NIT dated 18.12.2019 and the eligibility of M/s. Naagaamii Infratech Private Limited as L-1 and the contract been given in its favour shall be examined by the learned Single Judge. The judgment & order dated 15.12.2021 passed by the learned Single Judge in WP(C) No. 52(K)/2020; WP(C) No. 93(K)/2021 and WP(C) No. 94(K)/2020 IS HENCE SET ASIDE. The matter is remanded back to the leaned Single Judge for a fresh appraisal. All the parties would be at liberty to raise all legal and factual aspects before the learned Single Judge, which shall be decided in accordance with law. Since the matter has already taken more than two years, we request the learned Single Judge to dispose of the matter as early as possible after hearing the matter on a daily basis, if possible. The parties would be at liberty to file necessary pleadings before the learned Single Judge." 14. On a further perusal of the judgment and order dated 08.02.2020 passed by the Division Bench it would show that though vide the judgment and order dated 15.12.2021 whereby the WP(C) No. 52(K)/2020, WP(C) No. 93(K)/2021 and WP(C) No. 94(K)/2021 was set aside and the matter was remanded back to this Court for fresh appraisal, but in view of the categorical finding by the Division Bench that the cancellation of the first tender dated 16.12.2019, was done in accordance with law and the clarification that the matters were remanded back to this Court for fresh appraisal only as regards to the second tender process initiated on the basis of the NIT dated 18.12.2019, and the eligibility of the respondent No. 5, and the contract being given in its favour, nothing remains to be decided in respect of WP(C)/93(K)/2021 and WP(C)/94/2021 which was solely based in respect to the NIT dated 13.09.2019 and the cancellation of it vide Tender Cancellation Corrigendum dated 16.12.2019 which have been upheld by the Division Bench of this Court. Therefore, this Court is called upon to adjudicate on the issues arising in respect to Writ Petition No. 52/2020. 15. In Writ Petition No. 52(K)/2020 the respondent Nos. 1, 2 and 3 had filed their Affidavit-in-Opposition wherein, apart from raising various preliminary objections, has also rebutted the case of the petitioner on the merits. Therefore, this Court is called upon to adjudicate on the issues arising in respect to Writ Petition No. 52/2020. 15. In Writ Petition No. 52(K)/2020 the respondent Nos. 1, 2 and 3 had filed their Affidavit-in-Opposition wherein, apart from raising various preliminary objections, has also rebutted the case of the petitioner on the merits. The petitioners had filed a Rejoinder Affidavit on 05.03.2021. It may be relevant herein to take note that in the said Rejoinder Affidavit filed by petitioners amongst others at Para No. VIII, the petitioner had only denied the statement made in Paragraph 11 of the Affidavit-in-Opposition as devoid of any merits and misleading in facts and sought leave of this Court to refer to the Standard Bidding Document and information available to the petitioners under the Right to Information Act on the basis of which, the petitioner would prove that the entire exercise carried out by the State respondents as malafide and arbitrary. 16. At this stage it may not be out of place to mention two things. First, the petitioners had filed an application on 27.05.2020 seeking various information pertaining to WP(C)52(K)/2020 before the Public Information Officer, NPWD, Kohima. On 09.06.2020 and 17.07.2020, the information pertaining to the said application filed on 27.05.2020 at the behest of the petitioners were furnished. So as on the date of which the petitioner filed the Rejoinder Affidavit in reply against the Affidavit-in-Opposition of respondent Nos. 1, 2 and 3, i.e., on 05.03.2021, the petitioners were in possession of the documents furnished under the Right to Information Act but did not, for reasons best known did not bring on record before this Court. The second aspect of the matter which needs to be taken into consideration is that on a further perusal of the order dated 08.02.2022, the relevant portion of which has already been quoted herein above, the learned counsel appearing on behalf of the petitioners herein made a categorical statement before the Division Bench of this Court that the petitioners had received information through Right to Information Act and various other sources about the capability of the respondent No. 5 which were placed before this Court (learned Single Judge) and the said aspect of the matter had not been examined by this Court (learned Single Judge). 17. 17. The respondent No. 5 had also filed its Affidavit-in-Opposition wherein certain preliminary objections were taken up as regards the maintainability of the writ petition and had also rebutted the contents of the writ petition on merits. In the Rejoinder affidavit filed by the petitioner, interestingly, in Para (viii) and (x) there were references made to the Right to Information Act replies furnished by the State authorities, but as regards to that, no details or such documents were placed on record though as already stated herein above, the said documents were received on 09.06.2020 and 17.07.2020. 18. The record further reveals that on 23.02.2022, the three instant writ petitions were listed before this Court on which date as agreed by the learned counsels, the matter was fixed on 01.03.2022 and till that date this Court directed that no work should be carried out at the work site. Thereafter on 02.03.2022, an Additional Affidavit was filed by the writ petitioners enclosing therewith the order of the Division Bench dated 08.02.2022 along with other documents, the details of which are as herein under: (i) Annexure-II - the communication dated 19.02.2022 issued by the Advocate of the petitioner informing the Executive Engineer, PWD, Peren District, that this Court in WP(C)/52/2020 had categorically stayed the issuance of Letter of Acceptance to the respondent No. 5, subject to the outcome of the Writ Petition. It was also mentioned in the said communication that when there is an interim order passed by this Court and directions issued by the Division Bench dated 08.02.2022, whether the Department had issued work order to the Contractor and further requested the said authority to make verification, and if true, to immediately stop construction work as Prima Facie violation of the Court's order. (ii) Annexure-III is the communication dated 19.02.2022 issued by the Executive Engineer, PWD (R & B), Peren Division, Nagaland to the Chief Engineer, PWD,(R & B), Nagaland whereby it was intimated that the letter was received from the Advocate namely Shri. Lipoklemba requesting to immediately stop the construction work as it was Prima Facie violation of the Court's order. (iii) Annexure-IV is the communication issued by the Chief Engineer, PWD(R & B), Nagaland to the Chief Executive Engineer, PWD(R & B), Peren Division wherein the Chief Engineer had clarified that there was no stay order or directions from this Court not to proceed with the work. (iii) Annexure-IV is the communication issued by the Chief Engineer, PWD(R & B), Nagaland to the Chief Executive Engineer, PWD(R & B), Peren Division wherein the Chief Engineer had clarified that there was no stay order or directions from this Court not to proceed with the work. It was also mentioned that in the absence of any direction, the Department cannot stop the construction work. 19. Thereafter, another Additional Affidavit was filed by the writ petitioners on 07.03.2022, wherein it was mentioned that the respondent authorities in granting the contract to respondent No. 5 are in clear violation of the Standard Bidding Document Clause 2.6.4, Clause 2.14.3.1 and Clause 2.1.9. It was also submitted that in terms with the Standard Bidding Document 2.2.2.2, 2.2.2.5, 2.2.2.6 and 2.2.2.7, the respondent No. 5 was not qualified as far as the technical capacity on the basis of the documents obtained by the petitioners under the Right to Information Act. It was also mentioned that the information as provided under the Right to Information Act by the Public Information Officer of the respondent/PWD, would clearly demonstrate that the credentials as claimed by the respondent No. 5 is fabricated and coloured with malafide and ulterior motives, which is in connivance with the State respondent and the Private respondent involved. At this stage, it may also be relevant herein to mention that there is no specific detail except making bold allegations in the Additional Affidavit that the credentials as claimed by the respondent no. 5 were fabricated and coloured with malafide and ulterior motives. There was no mention whatsoever on what basis the petitioners alleged that the said documents submitted by the respondent No. 5 were fabricated and coloured with malafide and ulterior motives. The respondent No. 5 had filed an Affidavit-in-Reply to the Additional Affidavits filed by the petitioners on 02.03.2022 and 07/03/2022 on 10.03.2022 denying to the contents respectively. 20. In the back drop of the above, it is therefore essential to take note of the respective submissions made by the learned counsels for the parties. The learned counsels for the petitioner, Mr. 20. In the back drop of the above, it is therefore essential to take note of the respective submissions made by the learned counsels for the parties. The learned counsels for the petitioner, Mr. S. Borgohain submitted as follows: (i) The learned counsel drawing the attention of this Court to Clause 2.6.4 of the Standard Bidding Document and Annexure-X submits that the 'Minimum Key Personnel for the Project' as submitted by the respondent No. 5, it appears therefrom that the respondent No. 5 had taken the service of officials of the State respondents for securing the project by officiating them at various positions in connection with the said project. In support of that, the learned counsel draws attention in respect to one person namely one Shri Zuchibemo Humtsoe shown for the position of Project Manager and draws the attention of this Court to Page 192 of the Writ Petition to show that the said person had been short listed for verification of original documents for the post of Project Manager(Civil)(E-3). A further perusal of Pages 193 and 194 of the Writ Petition would show that the name of the said Shri Zuchibemo Humtsoe was shown at serial No. 283 in the designation of Project Manager (Civil) under NBCC. The counsel for the petitioner, further drawing the attention of this Court to Pages 196 and 197 of the Writ Petition, contends that the person namely Shri Seyievilie Pfukri shown as Site Engineer in the 'Minimum Key Personnel for the Project' was provisionally selected for the post of Extra Assistant Commissioner Class-I Gazette Junior Grade under P & AR Department vide notification dated 11.10.2018. Further the learned counsel drawing the attention of this Court to page 195, which is directory of the Officers of Employees, as on 31.03.2018 in the establishment of Executive Engineer, PWD(R & B) South Division, Kohima, draws the attention of this Court to Serial No. 46 wherein the name of one Shri Tepukul Natso was shown as Section Officer-II and the said person was shown in the 'Minimum Key Personnel for the Project' as Plant Engineer by the respondent No. 5. The counsel further drew the attention of this Court to Page 198, which was the notification, declaring the provisional result of the successful candidates issued by the Nagaland Public Service Commission wherein one Shri Kikatoshi Longchar was provisionally selected as Junior Engineer (Civil), Class-II, under the Works and Housing Department and the said person was shown in the 'Minimum Key Personnel for the Project' as Quantity Surveyor. On the basis of the above, the learned counsel therefore submits that the respondent No. 5 had used the services of these very persons for securing the project by officiating them at various positions in connection with the said project for which the respondent No. 5 was disqualified in terms of Clause 2.6.4 of the Standard Bidding Document. (ii) The learned counsel further submits that in terms with Clause 2.2.2.2, for the bidder to have the technical capacity, the bidder shall, over the past five financial years preceding the bid due date had received payments for construction of eligible projects or had undertaken construction work by itself in a PPP Project, such that the sum total thereof, as further adjusted in accordance with Clause 2.2.2.5 (i) and (ii), is more than or equal to Rupees 122.96 Crores. He further submits that in terms with Clause 2.2.2.7 what is required to be submitted in support of the technical capacity needs to be looked into. He submits that the bidder should furnish the details of eligible experience for the last five financial years immediately preceding the bid due date; the bidder must provide the necessary information relating to technical capacity as per the format Annex-II of Appendix-1A and the bidder should furnish the required project specific information and evidence in support of its claim of technical capacity as per the format at Annex-V of Appendix-1A. The learned counsel draws the attention of this Court to the leave so granted by the Division Bench vide its Judgment and Order dated 08.02.2020 and submits that on the basis of the said leave, the Additional Affidavit was filed by the writ petitioners on 07.03.2022. He submits that on the basis of the materials as furnished to the petitioner under the Right to Information Act, the said documents so submitted by the respondent No. 5 to show his technical capacity are fabricated and coloured with malafide. He submits that on the basis of the materials as furnished to the petitioner under the Right to Information Act, the said documents so submitted by the respondent No. 5 to show his technical capacity are fabricated and coloured with malafide. The work completion certificate which had been the basis to show the technical capacity of the respondent No. 5 are all manufactured and false documents, and the said aspect of the matter was not taken into consideration by the Technical Evaluation Committee while evaluating the tender of the respondent No. 5. (iii) The learned counsel further drew the attention of this Court to Clause 1.2.4 of the Standard Bidding Document which stipulates that the bidder is required to submit, along with its bid, a bid security of Rupees 1.23/- Crores refundable not later than 150 days from the bid's due date, except in the case of a selected bidder whose bid security shall be retained till it had provided a Performance Security and Additional Performance Security (if any) as per the provisions of the Standard Bidding Document and the Letter of Acceptance. The learned counsel, further referring to Clause 2.20 and 2.20.1 and 2.20.2, submitted that any bid not accompanied by the bid security should be summarily rejected as non-responsive. On the basis of the said Clause, the learned counsel for the petitioner submitted to the information of the petitioner, that the respondent No. 5 had submitted the same bid security which the respondent No. 5 had submitted for the NIT dated 13.09.2019, and as such in view of Clause 2.20.2 it is the submission of the petitioner, that the respondent No. 5's bid ought to have been summarily rejected. (iv) He further submits that the ulterior motive of the respondent authorities in cancelling the earlier tender and again tendering the same is clear from the fact that three months before in respect to the same work the respondent had quoted Rs. 1,22,95,08,575 (One hundred twenty two crores ninety five lakhs eight thousand five hundred and seventy five) whereas after three months the respondent No. 5 had quoted Rs. 1,01,23,44,821/- (One hundred and one crores twenty three lakhs forty four thousand eight hundred and twenty one). 1,22,95,08,575 (One hundred twenty two crores ninety five lakhs eight thousand five hundred and seventy five) whereas after three months the respondent No. 5 had quoted Rs. 1,01,23,44,821/- (One hundred and one crores twenty three lakhs forty four thousand eight hundred and twenty one). In respect of his submission he drew the attention of this Court to a recent judgment of the Supreme Court rendered in the case of National High Speed Rail Cooperation Ltd. versus Monte Carlo Ltd. and another and submits that the Government and its agencies have to act reasonably and fairly at all points of time and a tenderer has an enforceable right to be treated fairly. 21. Mr. T.B. Jamir, the learned Senior Additional Advocate General submitted as follows:- (i) At the very outset, he submitted that the writ petition was not maintainable on the ground that the tenderer in question is the Joint Venture of M/S. Vertex Construction, M/S. HiTech Construction & Co. and M/S. A.N.K. Construction but the said Joint Venture is not before this Court. It is only the constituents of the said Joint Venture who are the petitioners before this Court although the Joint Venture is a legal entity. He further draws the attention of this Court to WP(C)/93/2021 and WP(C)/94/2021, wherein the Joint Venture was one of the petitioners therein. In that regard, he draws the attention of this Court to the Judgment of the Supreme Court in the case of Gammon India Ltd. versus Commission or Customs reported in (2011) 12 SCC 499 wherein the Supreme Court had held that a joint venture is a legal entity. He further submits that allegations has been made against various persons to the effect that with their help, the respondent No. 5 had managed to obtain the contract but the said persons have not been made parties. (ii) On the merits, the learned Senior Additional Advocate General submits that a perusal of the Clause 2.6.4 would show that the bidder shall be liable for disqualification and forfeiture of future deposit, if any legal, financial or technical advisor of the employer in relation to the project is engaged by the bidder, its members or any associate thereof as the case may be in any manner for matters related to or incidental to such project during the bidding process or subsequent to issuance of the Letter of Acceptance or execution of the bid. He submits that none of the persons who have been mentioned as a 'Minimum Key Personnel for the Project' are in relation to the Project, and as such Clause 2.6.4 is not applicable. He draws the attention of this Court to Paragraph 11 D(b) & (c) which is the reply to the allegations made in Paragraph E (b) & (c) of the Writ Petition and submits that the persons namely Shri Zuchibemo Humtsoe is a Project Manager in NBCC, (National Bidding Construction Cooperation), Shri Seyievilie Pfukri is an Extra Assistant Commissioner in Peren District, and Shri Kikatoshi Longchar is the Junior Engineer (Food and Civil Supplies Department) and all of them had no relations whatsoever with the PWD. As regards to Shri Tepukul Natso he submits that he is a Section Officer Grade-II in the South Division, PWD(R & B), Kohima, and has nothing to do with the instant project as the project in question is in Peren District. He further submits that the respondent authorities had also received a representation dated 27.03.2020 from the respondent No. 5 stating that at the time of submitting the bid they had inadvertently uploaded the details of an old technical staff engaged by the employer and had submitted the fresh details of the 'Minimum Key Personnel for the Project'. Apart from the above, he also drew the attention of this Court to the Minimum Key Personnel for the project as submitted by the respondent No. 5 i.e., Annexure-X of the Appendix-1A and submitted that as per the requirement stipulated therein is that only one person is required for each of the position that is the Project Manager, Plant Engineer, Quantity Surveyor and Soil and Material Engineer and two personnels in respect to Site Engineer as per the Standard Bidding Document but the respondent No. 5 has submitted the names of two persons in each of the category except the Site Engineer where three names were provided. On the basis of the said submissions, the learned Senior Additional Advocate General therefore submits that as the persons whose names have been mentioned are nowhere in relation to the project so, Clause 2.6.4 is not attracted. (iii) As regards to the question on technical capacity as mentioned in Clause 2.2.2.2, the learned Senior Additional Advocate General submits that the allegations in respect to Clause 2.2.2.2 in the Writ Petition are vague and bold allegations. (iii) As regards to the question on technical capacity as mentioned in Clause 2.2.2.2, the learned Senior Additional Advocate General submits that the allegations in respect to Clause 2.2.2.2 in the Writ Petition are vague and bold allegations. He further submits that it is an established principle of law that by way of Additional Affidavit pleas wherein foundation has been laid can be allowed to be improved but sans any pleadings in the Writ Petition or any amendments being carried out such pleas cannot be allowed and taken into consideration. He however, submits that even on the perusal of the Additional Affidavit filed on 07.03.2022, it would show that apart from enclosing the documents obtained under the Right to Information Act, the petitioners by way of Additional Affidavit dated 07.03.2022 have only stated that the credentials submitted by the respondent No. 5 are fabricated, coloured with malafide in connivance with the State respondents and the private respondents; that too without furnishing specific details. He submits that there is a distinction between a pleading under the Code of Civil Procedure and a Writ Petition or the Counter Affidavit. While in a pleading, i.e., a plaint or a written statement, the material facts and not evidence are required to be pleaded, however in a Writ Petition or in the Counter Affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. In that regard, he draws the attention of this Court to the judgment of Supreme Court in the case of Bharat Singh and Others versus State of Haryana and Others reported in (1988) 4 SCC 534 . (iv) As regards the contention of the petitioner that the bid security which was submitted by the respondent No. 5 in respect to the NIT dated 13.09.2019 is the same bid security submitted in respect to the NIT dated 18.12.2019, the learned Senior Additional Advocate General submits that the earlier tender having been cancelled, vide the Tender Cancellation Corrigendum dated 16.12.2019, a fresh tender being issued on 18.12.2019 and in respect to which the bid security which was submitted and the security being valid, there was no non-compliance to Clause 2.20.2. He further submits that the record would show that the bid security which was submitted by respondent No. 5 was a fixed deposit in favour of the Chief Engineer, PWD(R & B), Kohima, Nagaland who is the employer, was valid from 30.09.2019 to 30.09.2020; and this aspect of the matter was sent for verification to the Branch Manager, State Bank of India, Kohima Branch vide the communication dated 03.03.2020 as was done in respect to the other tenderers also and the State Bank of India vide communication dated 06.03.2020 had confirmed the validity of the bank fixed deposit. The same was also done in the case of the petitioner's Joint Venture and the State Bank of India, Dimapur Branch, vide the communication dated 05.03.2020 had also confirmed the fixed deposit. (v) As regards the question of cancellation of the earlier tender process in order to facilitate the respondent No. 5 to quote a lesser amount and to become the L-1 with an ulterior motive, the learned Senior Additional Advocate General submits that the question of cancellation of the earlier tender has already stood settled by the order of the Division Bench dated 08.02.2020, whereby the said cancellation was approved holding inter-alia that no fault could be seen to the said Tender Cancellation Corrigendum dated 16.12.2019. As regards the quoting of a lesser amount, the learned counsel submits that the said amount so quoted by the respondent No. 5 is based upon the estimate and after entering into the said agreement, they would be bound by the said amount quoted. He further submitted that the State respondents are not barred from accepting the bid if the rate quoted is lower than the estimated rate. He submitted that clause 2.21.1(i) of the Standard Bidding Document provides that if the Bid Price offered is lower than 10% but upto 20% of the estimated profit cost then the Additional Performance Security shall be calculated @ 20% of the difference in the estimated Profit Cost minus 10% of the estimated Project Cost and the Bid Price offered by the selected Bidder. He further submits that it is in public interest that no interference is called for in respect to the project in question and the said project as the delay in completion of the said project has greatly affected the public interest. He further submits that it is in public interest that no interference is called for in respect to the project in question and the said project as the delay in completion of the said project has greatly affected the public interest. He further draws the attention of this Court to the judgment of the Supreme Court in the case of Raunaq International Limited Vs. I.V.R. Construction & Others reported in (1999) 1 SCC 492 and referred to Paragraph 9, 11, 22 and 23. 22. Mr. R. Iralu, the learned Senior Counsel submitted as follows:- (i) The learned Senior counsel submitted three preliminary objections on the maintainability of the Writ Petition of which one was the absence of Locus Standi. (ii) The writ petition is not maintainable in as much as the Chief Engineer, PWD (R & B) Division who is the employer was not made a party to the instant proceedings more so when allegations of malafide were made against the employer (iii) There was no public interest involved in the instant writ petition and as such the question of exercise of jurisdiction under Article 226 of the Constitution of India, does not arise in the facts of the instant case. (iv) As regards the allegation of violation of Clause 2.6.4, the learned Senior Counsel drew the attention of this Court to Paragraph 10.7 of the Affidavit-in-Opposition filed by Respondent No. 5, and submits that Clause 2.6.4 unambiguously comes into play when there is engagement of any legal, financial or technical advisor of the employer in relation to the project. The use of the words "of any legal, financial or technical advisor" and the employer being the Chief Engineer, PWD(R & B) Nagaland, the allegation of the petitioners has to be in relation to such legal, financial or technical Advisors of the Employer for violation of Clause 2.6.4 is totally misconceived. Further to that, he submitted that the four persons as alleged in the writ petition cannot be said to be Advisor to the employer in relation to the project. As regards Shri Zuchibemo Humtsoe, the said person presently is posted in Mauritius. As regards M r. Seyievilie Pfukri, who is the EAC (Extra Assistant Commissioner), under the administrative control of the Personnel and Administrative Reforms Department, Government of Nagaland. As regards Shri Zuchibemo Humtsoe, the said person presently is posted in Mauritius. As regards M r. Seyievilie Pfukri, who is the EAC (Extra Assistant Commissioner), under the administrative control of the Personnel and Administrative Reforms Department, Government of Nagaland. The third individual is Shri Kikatoshi Longchar who is the Junior Engineer under the Works and Housing Department and who is currently on transfer to Food and Civil Supplies Department, w.e.f., 16.12.2019 and has nothing to do with the project in question. As regards to the fourth individual, i.e., Shri Tepukul Natso, he submits that he is presently a Section Officer Grade-II, who was temporarily appointed on 31.07.2017 and he under no circumstances can be said to be the Advisor of the employer in relation to the project. Further to that, he draws the attention of this Court to Clause 7.9 of Section VII of the NIT which is the "Conditions of Contract", wherein the Personnel for the Project has been mentioned. He submits that in terms of Clause 7.9.1 the Contractor shall employ the Key Personnel mentioned in the Schedule of the Key Personnel as referred to in the Contract data to carry out the functions stated in the Schedule or other personnel approved by the Engineer. The Engineer would approve any proposed replacement of the Key Personnel only if their qualifications, abilities and relevant experiences are substantially equal to or better than the others mentioned in the Schedule. He further submits that in Clause 7.9.2, the Engineer can ask the Contractor to remove a person who is a member of the contractual staff or his office work force stating the reason and the contractor shall ensure that the person leaves the site within seven days and is no further in connection with the contract work. He further submits that on the basis of the said Clause 7.9 the respondent No. 5 had submitted the communication dated 27.03.2020 whereby a fresh list of Key personnel was submitted to the Chief Engineer PWD (R & B). (v) As regards the contention that the Respondent No. 5 is not technically viable in terms with Clause 2.2.2.2, the learned Senior Counsel submits that the records which have been placed before this Court would clearly show that the Respondent No. 5 is technically viable in terms with the said clause. (v) As regards the contention that the Respondent No. 5 is not technically viable in terms with Clause 2.2.2.2, the learned Senior Counsel submits that the records which have been placed before this Court would clearly show that the Respondent No. 5 is technically viable in terms with the said clause. He submits that the allegation so made by the petitioner in the Additional Affidavit dated 07.03.2022 has been clearly refuted in the Affidavit-in-Reply filed on 10.03.2022. He further submits that the said allegations are absolutely vague, mischievous and in order to mislead this Court, that too without any basis. (vi) As regards the bid security, he submits that in view of the cancellation of the earlier tender process vide the Tender Cancellation Corrigendum dated 16.12.2018, the said bid security submitted in connection with the NIT dated 13.09.2019 being valid, there was nothing wrong in submitting the same bid security to the respondent authorities along with the said bid submitted by the respondent No. 5. (vii) As regards the allegation that within the period of three months how the respondent No. 5 had quoted a rate which is below 17.66 percent of the estimated rate, the learned Senior counsel for respondent No. 5 submits that there is nothing wrong in the respondent No. 5 submitting a bid which is 17.66 percent below the estimated rate as the same falls within the purview of the Standard Bidding Document. Further to that, the learned counsel submits that submission of the said bid by the respondent No. 5 is on the basis of a calculation made by respondent No. 5 which the respondent authorities have duly accepted and the said basis cannot be open to judicial review. 23. I have heard the learned counsel for the parties and perused the materials on record. Let this Court first take into consideration the preliminary objections so raised by the learned counsels for the respondents. (a) The first preliminary objection raised is that the tenderer before this Court is not the bidder and as such, the petitioners do not have the locus standi to maintain the instant writ petition, and in support thereof it was contended that the tenders, which is the joint venture, being a legal entity ought to have been made a party to the instant writ petition. A perusal of the parties in the writ petition reveals that all the constituents of the said Joint venture are petitioners before this Court and as such this Court is of the opinion that it would not be in the interest of justice to non-suit the petitioner on the ground that Joint Venture is not a party in the instant proceedings. It would have been a different matter if one or some of the constituents of the Joint Venture was not a party to the instant Writ Petition. (b) The next preliminary objection so taken was that the four personnels against whom the allegations have been made have not been made parties as well as the Chief Engineer, PWD (R & B) Division who is the employer has not been made a party. The primary allegation made in the writ petition being non-compliance with Clause 2.6.4 on the basis that the four persons were included in the 'Minimum Key personnel for the Project' as submitted by respondent No. 5, the presence of the said four persons is not necessary for the adjudication of the instant dispute which primarily is in relation to as to whether the respondent No. 5 was eligible as per the Standard Bidding Documents. As regards the question of the Chief Engineer, PWD, R & B Division who is the employer not being made a party although allegation of malafide has been made against the respondent authorities it would be relevant to take note that on a perusal of the writ petition, the allegations of malafide so made is without any material particulars. It is no longer res integra that when allegations of malafide are made, a heavy burden is cast upon the person alleging malafide to prove it. (see E.P. Royappa v. State of Tamil Nadu reported in AIR 1974 SC 555 ). In the instant case, neither any pleadings have been made as regards the allegation of malafide nor specific details as regards to allegations of malafide is also given in the pleading herein and under such circumstances, this Court cannot go into the question as to whether the actions of the respondent authorities were malafide and consequently the non-impleading of the employer, i.e., the Chief Engineer, PWD (R & B) Division would not be fatal for the instant Writ Petition. Moreover, the respondent No. 3 before this Court is the Engineer-in-Chief. 24. Moreover, the respondent No. 3 before this Court is the Engineer-in-Chief. 24. Now coming to the question of merits, the following are the analysis and conclusions: (i) Violation of Clause 2.6.4:- For the application of Clause 2.6.4, a perusal of the said clause would show that if any legal, financial or technical Advisor of the employer in relation to the project is engaged by the bidder, its members or any Associate thereof, as the case may be, in any manner, for matters related or incidental to such project during the bidding process or subsequent to the issuance of the Letter of Acceptance or execution of the agreement, the bidder shall be liable for disqualification and forfeiture of future deposit. Now, the question therefore arises as to whether the persons whose names have been mentioned in the bid document of respondent No. 5 i.e., 'Minimum Key Personnel for the Project' comes within the ambit of legal, financial or technical Advisor of the employer in relation to the project. A perusal of Annexure-X of Appendix-1A stipulates that the bidder is to give names along with their qualifications, years of experience (General), years of experience with the proposed position of one Project Manager, one Plant Manager, one Quantity Surveyor, one Soil and Material Engineer and two Site Engineers. A perusal of Annexure-X of Appendix-1A as submitted by the respondent No. 5 would show that the respondent No. 5 had given the names of two Project Managers, two Plant Engineer, two Quantity Surveyor and two Soil and Material Engineer and three Site Engineers. Of them one Shri Zuchibemo Humtsoe, Shri Seyievilie Pfukri and Shri Kikatoshi Longchar had been named as 'Minimum Key Personnel for the Project' in reference to the Project Manager, Site Engineer and Quantity Surveyor respectively. Shri Zuchibemo Humtsoe is an employee of the National Biding Construction Cooperation India Ltd. which is the Central Public Sector Cooperation of the Central Government and is presently posted in Mauritius. The second individual that is Shri Seyievelie Pfukri is the Extra Assistant Commissioner(Civil) which is under the Administrative Control of the Personnel and Administrative Reforms Department, Government of Nagaland and the third individual Shri Kikatoshi Longchar is the Junior Engineer under the Works and Housing Department and is currently transferred to the Food and Civil Supplies vide order dated 16.12.2019. The second individual that is Shri Seyievelie Pfukri is the Extra Assistant Commissioner(Civil) which is under the Administrative Control of the Personnel and Administrative Reforms Department, Government of Nagaland and the third individual Shri Kikatoshi Longchar is the Junior Engineer under the Works and Housing Department and is currently transferred to the Food and Civil Supplies vide order dated 16.12.2019. In both the affidavits filed by the respondent authorities as well as by the respondent No. 5, the said aspect of the matter has been mentioned and it has also been mentioned that the said persons under no circumstances can be said to be a legal, financial or technical Advisor of the Employer in relation to the project. The said statements made in both the Affidavit-in-Opposition have only been denied but no details were furnished in the Rejoinder Affidavit filed by the petitioner stating how the said persons come within the ambit of legal, financial or technical Advisor of the employer in relation to the project. Even in the Writ Petition there is no allegation to the fact that the said persons are legal, financial and technical Advisor of the employer in relation to the project. Now, coming to the question as regards Shri Tepukul Natso, it has been mentioned in the Affidavit filed by the respondent Nos. 1, 2 and 3 that the said individual is a Section Officer Grade-II in the South Division, PWD (R & B), Kohima, whereas the tender process of the project is handled by the Chief Engineer, PWD, R & B and the project in question comes within the ambit of Peren Division of the PWD. In the Affidavit filed by the respondent No. 5, it has been mentioned that the Section Officer falls below the Junior Engineer in hierarchy and under such circumstances the Section Officer cannot be the Advisor of the employer in relation to the project. To the said statement made in the respective Affidavit-in-oppositions, the petitioner in their Reply Affidavit had merely denied the same stating it to be devoid of any merits and misleading facts but no details have been mentioned as to how the said Shri Tepukul Natso comes within the ambit of legal, financial or technical advisor of the employer in relation to the project. Even if the writ petition is looked into more particularly at Paragraph E(c), the allegations therein is that the respondent No. 5 had taken the services of the officials of the State respondents for securing the project by officiating them at various position in connection with the said project but there is no pleading to that effect that any of the personnels as mentioned herein above are legal, financial or technical advisor to the employer in relation to the project. Engagement of Government servants unless he is a legal, financial or technical Advisor to the employer in relation to the project would not come within the mischief of Clause 2.6.4. Further to that it also appears from a reading of Clause 7.9 of Section VII of the Standard Bidding Document that the Schedule of the Key Personnel can be included as well as changed upon the approval by the Engineer. The learned counsel for the petitioner could not show any clause in the contract that the said Key Personnel whose names are mentioned in the Affidavit-in-Opposition of Annexure X of Appendix 1A cannot be changed or changing the Key personnel of the project would disqualify the bidder. Under such circumstances, this Court is therefore of the opinion that the contention that the respondent No. 5 to be disqualified in terms with Clause 2.6.4 of the Standard Bidding Document is misconceived and not tenable. (b) Whether the respondent No. 5 had the technical capacity in terms with Clause 2.2.2.2.:- A perusal of the clause 2.2.2.2, more particularly (i), stipulates that for demonstrating the technical capacity and experience of the bidder, the bidder shall over the past five financial years preceding the bid due date, had received payments for construction of eligible project(s), or had undertaken construction works by itself in a PPP Project, such that the sum total thereof as adjusted in accordance with 2.2.2.5(i) & (ii) is more or equal to Rs. 122.96/- Crores is the threshold technical capacity and a further perusal of the Clause 2.2.2.7 shows what are the documents to be submitted in support of the technical capacity. 122.96/- Crores is the threshold technical capacity and a further perusal of the Clause 2.2.2.7 shows what are the documents to be submitted in support of the technical capacity. For that purpose, the bidder has to provide the necessary information relating to technical capacity as per the format Annexure-II of Appendix-1A and the bidder should furnish the specific information and evidences in support of its claim of technical capacity as per the format of Annexure IV of Appendix 1A. On the basis of the information received by the petitioner under the Right to Information Act on 09.06.2020 and 17.07.2020, the petitioners had in their Additional Affidavit filed on 07.03.2022 stated that the credentials as claimed by the respondent No. 5 is fabricated, coloured with malafide and ulterior motives. There is no mention whatsoever in the pleadings of the petitioners as to on what basis the petitioners alleges that the credentials as claimed by the respondent No. 5 are fabricated, coloured with malafide and ulterior motives. At this stage, this Court finds it proper to rely upon the judgment of Bhagat Singh Vs. State of Haryana (Supra) and refers to paragraph 13 and the said paragraph being relevant is quoted herein below:- "13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter, affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us PG NO 1060 by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit." A perusal of the said judgment would show that if the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the Court will not entertain the point. A distinction was drawn between the pleadings under the Code of Civil Procedure and a Writ Petition or counter-affidavit in the said judgment. While in a pleadings i.e., a plaint or a written statement, the material facts and not evidence are required to be pleaded wherein, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. Be that as it may, this Court had perused the bid submitted by the respondent No. 5 on being produced by the learned Senior Additional Advocate General and the perusal thereof shows that in support of the technical capacity, the respondent No. 5 have not only provided the necessary information regarding its technical capacity in Annexure-II of Appendix-1A but had also furnished the required project specific information and the evidences in support of its claim of technical capacity as per the format Annexure-IV of Appendix-1A. It may be relevant herein to mention that in respect to the contract, the work orders, and the completion certificates in that regard had been duly submitted. It may be relevant herein to mention that in respect to the contract, the work orders, and the completion certificates in that regard had been duly submitted. Under such circumstances, the allegations that the respondent No. 5 did not have the technical capacity in terms with clause 2.2.2.2 and did not submit the necessary documents in terms with clause 2.2.2.7 is totally misconceived and not tenable. (iii) Submission of Bid Security:- In terms with clause 1.2.4 and clause 2.20, the bid security of Rs. 1.23/- Crores is required to be furnished in favour of the Employer either in the form of term deposit/Bank guarantee as per the format at Appendix IX II having the validity period of not later than 120 days from the bid due date exclusive of the claim period of 30 days. The contention of the petitioners in the instant case is that the bid security which was in the format of a fixed deposit which was submitted by the respondent No. 5 in pursuance to the NIT dated 13.09.2019, the same fixed deposit was submitted in respect to the NIT dated 18.12.2019 and as such it was in violation to clause 1.2.4 and clause 2.2.0. The records having being produced before this Court and the perusal thereof shows that the respondent No. 5 had submitted a term deposit advised in favour of the Chief Engineer, R & B, Kohima, Nagaland of an amount of Rs. 1.23 Crores (One Crore Twenty Three Lakhs) which was valid from 30.09.2019 to 30.09.2020. The record further shows that the respondent authorities had vide communication dated 03.03.2020 requested the Branch Manager, State Bank of India, Kohima Branch, as regards to confirmation of the fixed deposit receipt and vide communication dated 06.03.2020, the Assistant Manager, Kohima Branch, had confirmed that the fixed deposit Account No. 38807490815 was issued in favour of the Chief Engineer, PWD (R & B), Kohima, Nagaland and the account was opened on 30.09.2019 and valid till 30.09.2020. In that view of the matter, the said bid security so submitted was in terms with clause 1.2.4 and clause 2.20.1. Further to that, it is also relevant to take note of, that the NIT dated 13.09.2019 was cancelled vide Tender Cancellation Corrigendum dated 16.12.2019. There was no bar in submitting the same bid security in respect to the tender dated 18.12.2019. Further to that, it is also relevant to take note of, that the NIT dated 13.09.2019 was cancelled vide Tender Cancellation Corrigendum dated 16.12.2019. There was no bar in submitting the same bid security in respect to the tender dated 18.12.2019. In view of that matter, the said contention of the petitioner that the same bid security was submitted for both the tenders is on the face of it misconceived and not tenable. (d) Financial quote of the respondent No. 5 which was 17.66 % below the estimated rate:- The allegation of the petitioner that the same tenderer three months prior had quoted the amount of rupees 1,22,95,08,575 to the NIT dated 13.09.2019 and within a period of three months the same respondent in respect to the same work had quoted 1,01,23,44,821 which was 17.66 percent below the estimated rate and submitted that the cancellation of the earlier tender was with an ulterior motive to facilitate the respondent to become the L-1. The Judgment and Order dated 08.02.2022 passed by the Division Bench as quoted herein above had upheld the cancellation of the NIT dated 13.09.2019 by the Tender Cancellation Corrigendum dated 16.12.2019 and as such the question of the cancellation of the NIT dated 13.09.2019 had already attained finality. Now as regards to the question as to whether there is any illegality of the respondent No. 5 to quote 17.66 percent below the estimated rate, the learned counsel for the petitioner has failed to show any of the provisions of the Standard Bidding Document whereby quoting at 17.66 percent below the estimated price would disqualify the respondent No. 5. In absence of any viable range being fixed in the tender documents, it is no longer res integra that the tenderers are free to quote at such rate which is viable in their estimates to do the work and this Court under Article 226 of the Constitution of India cannot in absence of viable rate being fixed in the tender documents go into the said question. Apart from the above, the Standard Bidding Document duly taken care of the interest of the State when the Bidder quotes a rate lower than the estimated rate as would be clear for the Clause 2.21.1 (i) of the Standard Bidding Document as well as the submissions of the Senior Additional Advocate General. Apart from the above, the Standard Bidding Document duly taken care of the interest of the State when the Bidder quotes a rate lower than the estimated rate as would be clear for the Clause 2.21.1 (i) of the Standard Bidding Document as well as the submissions of the Senior Additional Advocate General. Accordingly, the said contention of the petitioner is also misconceived and tenable. 25. Consequently, the instant Writ Petition i.e., WP(C)/52/2020, being devoid of any merits accordingly stands dismissed. 26. As regards the WP(C)/93(K)/2021 and WP(C)/94(K)/2021, in view of what has been observed herein above as well as the Judgment and Order of the Division Bench dated 08.02.2022, nothing survives and consequently stands disposed. The record as produced by the learned Senior Additional Advocate General be returned.