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2022 DIGILAW 778 (GAU)

HI-TECH Construction And Co. v. Chief Secretary, Government Of Nagaland

2022-07-21

NELSON SAILO, ROBIN PHUKAN

body2022
JUDGMENT : [Nelson Sailo, J.] 1. Heard Mr. A Zhimomi, learned counsel for the appellant, Mr. T.B Jamir, learned Senior Addl. Advocate General, Nagaland for the State respondent Nos. 1 to 3 and Mr. I Iralu, learned Senior counsel assisted by Mr. L Iralu, learned counsel for the respondent No. 5. None appears for respondent No. 4 despite service. 2. This writ appeal is directed against the Judgment & Order dated 16.03.2022 passed by the learned Single Judge in WP(C) No. 52/2020, WP(C) 93(K)/2021 & WP(C) No. 94(K)/2021 whereby, WP(C) No. 52/2020 was dismissed and as for the remaining two writ petitions, it was held that nothing survived for consideration in view of the dismissal of WP(C) No. 52/2020. The case has a checkered history and the facts of the case may be narrated as below. 3. On 13.09.2019, the Nagaland Public Works Department (NPWD) floated a Notice Inviting Tender (NIT) for five projects including Tenning to Lekie project, which is the work in question. The appellant No. 1 as Joint Venture participated in the tender process and its financial bid was found to be 0.007% below Bill of Quantity (BOQ) rate. Having quoted the lowest but not having been issued the Letter of Acceptance (LOA), the appellant No. 1 filed WP(C) No. 249(K)/2019 seeking a direction for the issuance of LOA in its favour. In the meantime, the Chief Engineer, NPWD in exercise of the powers conferred under clause 2.16.1 of the Standard Bidding Document (SBD) vide Corrigendum dated 6.12.2019 & 16.12.2019 cancelled the NIT dated 13.09.2019. The Corrigendum dated 16.12.2019 relates to the work in question i.e., Tenning to Lekie project. Thereafter, the Chief Engineer, NPWD on 18.12.2019 issued a fresh NIT for the work in question. Challenging the tender cancellation vide Corrigendum dated 16.12.2020 and the second NIT dated 18.12.2019, the appellant No. 1 filed WP(C) No. 75/2020 before the Principal Seat of this Court at Guwahati and later, the same was transferred to the Kohima Bench, where it was renumbered as WP(C) No. 3(K)/2020. 4. On 03.03.2020, the technical bid of all the bidders were opened and the appellants, the respondent No. 5 and one other bidder were declared to be qualified bidders. Thereafter, on 13.03.2020, the financial bid of the qualified bidders were opened where it was found that the appellant quoted -3.600% below the estimated rate while the respondent No. 5 had quoted -17.669%. Thereafter, on 13.03.2020, the financial bid of the qualified bidders were opened where it was found that the appellant quoted -3.600% below the estimated rate while the respondent No. 5 had quoted -17.669%. Following the opening of the financial bid, LOA was issued in favour of the respondent No. 5 on 16.03.2020. The appellants, being aggrieved for not having been selected filed WP(C) No. 52/2020 on 18.03.2020 praying for a direction to the State respondents to disqualify the respondent No. 5 and to declare the appellants as L-1 and issue LOA in respect of the NIT dated 18.12.2019. Vide Order dated 24.03.2020, the learned Single Judge issued notice to the respondents with a further direction that the LOA dated 16.03.2020 shall be subject to the outcome of the writ petition. Thereafter, the appellant filed I.A(C) No. 35/2021 praying for impleadment of the other entities of Joint Venture as petitioners in WP(C) No. 249/2019 & WP(C) No. 3(K)/2020. However, on 28.04.2021, the appellants prayed for and were allowed to withdraw WP(C) No. 249/2019, WP(C) No. 3(K)/2020 and I.A(C) No. 35/2021 with liberty to file afresh. After such withdrawal, the appellants filed WP(C) No. 93/2021 praying for issuance of LOA in its favour in terms of the earlier NIT dated 13.09.2013 which was subsequently cancelled vide Order dated 16.12.2019. The appellants also filed WP(C) No. 94/2021 praying for a direction to quash the tender cancellation Corrigendum dated 16.12.2019 in respect of NIT dated 13.09.2019. 5. Subsequently, the writ petitions were heard and disposed of vide Judgment & Order dated 15.12.2021 by directing the State respondents to issue LOA in favour of the appellants within a period of 2 (two) weeks from the date of passing the order. Against the said Judgment & Order 15.12.2021, W.A No. 3/2022, W.A No. 359/2021 & W.A No. 360/2021 were filed by the respondent No. 5 while the State of Nagaland filed W.A No. 361/2021. All the 4 (four) writ appeals were disposed of vide Judgment & Order dated 08.02.2022 by holding that the cancellation of the first tender vide Corrigendum dated 16.12.2019 was in accordance with law. The Judgment & Order dated 15.12.2021 of the learned Single Judge was set aside and the matter was remanded back for fresh consideration by the learned Single Jude only in respect of the second NIT dated 18.12.2019. The Judgment & Order dated 15.12.2021 of the learned Single Judge was set aside and the matter was remanded back for fresh consideration by the learned Single Jude only in respect of the second NIT dated 18.12.2019. On remand, the learned Single Judge, vide Judgment & Order dated 16.03.2020 dismissed WP(C) No. 52/2020 as already stated herein above. Although, WP(C) No. 93/2021 & WP(C) No. 94/2021 are shown as linked cases, both the writ petitions relate to the first NIT dated 13.09.2019 and therefore, the issues raised therein no longer survive in view of the Judgment & Order dated 08.02.2022 passed by the Division Bench in W.A No. 3/2021 along with the other 3 (three) linked Writ Appeals. 6. The case of the appellants in the writ petition was that they took part in the NIT dated 18.12.2019 for construction of Tenning to Lekie road in the District of Peren and the tendering process comprised of technical bid and financial bid. The appellants after being found to be technically qualified, took part in the financial bid, which was opened on 13.03.2020 where the respondent No. 5 was declared to be L-1. However, when the technical team of the appellants verified the project papers of the respondent No. 5, they found serious anomalies which according to them could not have been overlooked by the State respondents. The project papers submitted by the respondent No. 5 revealed that they had taken the services of Government employees which is in violation of the SBD. The rates quoted by the respondent No. 5 in its financial bid was unviable in the present context and the acceptance of the price quotation of respondent No. 5 is only an act of mala-fide, arbitrariness and favouritism. Accordingly, the appellants in their writ petition sought for a direction to the State respondents to disqualify respondent No. 5 from the bidding process initiated under NIT dated 18.12.2019 as clause 2.6.4 of the SBD was attracted. A further direction was prayed for declaring the appellants as L-1 & 2 and to issue LOA in their favour. The further case of the appellants was 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 at the estimated rate of Rs. 122 crore. The further case of the appellants was 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 at the estimated rate of Rs. 122 crore. The same was therefore done with a malafide intention to deprive the other bidders in connivance of the State respondents. The respondent No. 5, according to the appellants, did not qualify technically as stipulated in clause 2.2.2.2 of the SBD. The issuance of the work order dated 11.02.2022 in favour of the respondent No. 5 is also in clear violation of clause 2.21 of the SBD. Further, the respondent No. 5 submitted his bid in violation of clause 1.2.4 and clause 2.20 of the SBD. As per the mandate of clause 2.16.1 of the SBD, the entire bidding process having been cancelled and therefore, the subsequent bidding process being a fresh one, the entire exercise ought to be carried out in conformity with the SBD which otherwise, has not been complied with by the respondent No. 5. 7. In response to the averments made by the appellants, the State respondents raised the maintainability of the writ petition on the ground that the tenderer in question being a part of a Joint Venture, all the entities concerned are not before the Court but only the constituents. As such, the writ petition was not maintainable. The State respondents however maintained that none of the persons mentioned as a ‘Minimum Key Personnel for the Project’ are in relation to the project and as such, clause 2.6.4 was not attracted. As for the allegations made in respect of clause 2.2.2.2 of the SBD, the same were only vague and bold allegations. The bid security submitted by the respondent No. 5 did not violate clause 2.20.2 as the same was a fixed deposit in favour of Chief Engineer, NPWD (R&B) who is the employer and the same was valid from 30.09.2019 to 30.09.2020. The respondent authority concerned had also verified the validity from the Branch Manager, SBI, Kohima Bench not only in respect of the respondent No. 5 but also in respect of the other tenderers as well. 8. The respondent authority concerned had also verified the validity from the Branch Manager, SBI, Kohima Bench not only in respect of the respondent No. 5 but also in respect of the other tenderers as well. 8. The respondent No. 5, against the writ petition, had also contended that the writ petition was not maintainable since the Chief Engineer, NPWD (R&B) Division, who is the employer, was not made a party while the appellants had made the allegations of mala-fide against the employer. Further, there was no element of public interest involved and therefore, the interference of this Court was not called for. The respondent No. 5 further contended 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. Further, as per clause 7.9.2, the Engineer can ask the Contractor to remove a person who is a member of the contractor’s staff or his work force stating the reasons and the Contractor shall ensure that the person leaves the site within seven days and has no further connection with the work in contract. Accordingly, the respondent No. 5 had submitted a fresh list of Key personnel to the Chief Engineer, NPWD (R&B). The respondent No. 5 also claimed that it was technically viable in terms of clause 2.2.2.2. Further, as for the bid security, the earlier tender process having been cancelled, the respondent No. 5 submitted the same bid security in the second tender process as the same was still valid and therefore, no wrong has been committed by the respondent No. 5 in submitting the same. The respondent No. 5 further contended that there was no wrong in submitting a bid which is 17.669% below the estimated rate as the same falls within the purview of the SBD. 9. Therefore, the points that arose for consideration before the learned Single Judge was (i) Whether the writ petition was maintainable in view of the preliminary objection raised by the respondents on locus standi and non-joinder of necessary party. (ii) Whether there was violation of clause 2.6.4 of the SBD. (iii) Whether the respondent No. 5 has the technical capacity in terms of 2.2.2.2. (ii) Whether there was violation of clause 2.6.4 of the SBD. (iii) Whether the respondent No. 5 has the technical capacity in terms of 2.2.2.2. (iv) Whether submission of bid security by respondent No. 5 was valid as per the terms and conditions of SBD and (v) Whether the financial quotation of respondent No. 5 at the rate of 17.669% below the estimated rate was permissible. 10. According to the appellants, the above contentions raised by them were not considered by the learned Single Judge and that their writ petitions were simply rejected and dismissed. The appellants contend that the Division Bench vide Order dated 08.02.2022 had given liberty to all the authorities concerned to raise a legal and factual aspects and therefore, the appellants filed two additional affidavits on 02.03.2022 and 07.03.2022 bringing on record documents, which prima facie revealed that the work was allotted to the respondent No. 5 arbitrarily and in violation on the guidelines stipulated in the SBD. According to the appellants, there was violation of the relevant clause of the SBD, such as clause 2.21 & 2.21.5 of the SBD and the same was not addressed by the learned Single Judge. The appellants further contend that the respondent No. 5 did not furnished performance security within 20 days from the date of Letter of Acceptance. The Letter of Acceptance was issued on 16.03.2020 and performance security was furnished nearly after 2 years from the date of issuance of the LOA. Therefore, there is gross violation of clause 2.21.1 of the SBD. 11. The appellants also contend that since the respondent No. 5 quoted 17.66% below the estimated price in his final bid, he is required to furnish additional performance security in terms of clause 2.21.1 (i) within 20 days of the issuance of LOA along with performance security. The same was not done within the stipulated time but furnished only after nearly 2 years on 10.02.2022. Further, in view of the delay in furnishing the performance security and additional performance security, clause 2.21.5 was also attracted. The appellants further contend that the State respondents did not file any reply affidavit against the 2 additional affidavit filed by the appellants. Therefore, the State respondents have not disputed but accepted the facts pleaded in the two additional affidavits. Further, in view of the delay in furnishing the performance security and additional performance security, clause 2.21.5 was also attracted. The appellants further contend that the State respondents did not file any reply affidavit against the 2 additional affidavit filed by the appellants. Therefore, the State respondents have not disputed but accepted the facts pleaded in the two additional affidavits. The appellants have also contended that the Key personnel pointed by the respondent No. 5 are all Government servants and therefore, clause 2.6.4 of the SBD has been violated. 12. We have heard the submissions made by the learned counsels for the rival parties and we have perused the materials available on record including the record produced by the learned Senior Additional Advocate General. 13. As stated earlier, a Division Bench of this Court vide Order dated 08.02.2022 had remanded the matter back to the learned Single Judge, only in respect of the second NIT dated 18.02.2019 after setting aside the Judgment & Order dated 15.12.2021 of the learned Single Judge. An observation was also made that all the parties would be at liberty to raise any legal and factual aspects before the learned Single Judge which should be decided in accordance with law. Accordingly, the parties were again before the learned Single Judge and according to the appellants, after submitting two affidavits before the learned Single Judge, the issue to be decided by the learned Single Judge were broadly summarized into 5 (five) points which has also been reflected at paragraph No. 9 herein above and not repeated for brevity. Therefore, the consideration of the instant appeal will be mainly on the points which arose for consideration by the learned Single Judge. Since the writ petition was not dismissed by the learned Single Judge, or the maintainability of the writ petition, the same will not require consideration. Therefore, the consideration of the instant appeal will be mainly on the points which arose for consideration by the learned Single Judge. Since the writ petition was not dismissed by the learned Single Judge, or the maintainability of the writ petition, the same will not require consideration. Coming to the second point regarding the violation of clause 2.6.4 of the SBD, the said provision is being abstracted hereunder for ready perusal: “2.6.4 A bidder shall be liable for disqualification and forfeiture of BID Security, if any legal, financial or technical adviser of the Employer in relation to the Project is engaged by the Bidder, its Member 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 the (i) issue of the LOA or (ii) execution of the Agreement. In the event any such adviser is engaged by the selected Bidder or Contractor, as the case may be, after issue of the LOA or execution of the Agreement for matters related or incidental to the project, then notwithstanding anything to the contrary contained herein or in the LOA or the Agreement and without Prejudice to any other right or remedy or the Employer, including the forfeiture and appropriation of the BID Security or Performance Security, as the case may be, which the Employer may have there under terminated without the Employer being liable in any manner whatsoever to the selected Bidder or Contractor for the same. For the avoidance or doubt, this disqualification shall not apply where such adviser was engaged by the Bidder, its Member of Association in the past but its assignment expired or was terminated 6 (six) months prior to the date of issue of this SBD. Nor will this disqualification apply where such adviser is engaged after a period of 3 (three) years from the date of commercial operation of the Project.” 14. From the above abstract, what can be noticed is that clause 2.6.4 of the SBD will be attracted only if any legal, financial or technical advisor of the employer in relation to the project as engaged by the bidder. The term ‘employer’ as per clause 1.1.1 of the SBD is the Chief Engineer, PWD (R&B), Nagaland, Kohima and project is the ‘Tenning to Lekie in Nagaland’. The term ‘employer’ as per clause 1.1.1 of the SBD is the Chief Engineer, PWD (R&B), Nagaland, Kohima and project is the ‘Tenning to Lekie in Nagaland’. Therefore, in order to attract clause 2.6.4 of the SBD, the appellant must establish that the Key personnel engaged by the respondent is/are also the legal, financial or technical advisor of the Chief Engineer, PWD (R&B), Nagaland, Kohima in relation to ‘Tenning to Lekie in Nagaland’, Kohima. As regards the status of the Key personnel engaged by the respondent No. 5, the State respondents have given their details at paragraph-D of their affidavit-in-opposition. From the details of the Key personnel, it is seen that none of the Key personnel engaged by the respondent No. 5 are the legal, financial or technical advisor of the Chief Engineer, PWD (R&B), Nagaland, Kohima in relation to Tenning to Lekie project. 15. As regards, the third point for consideration which arose before the learned Single Judge that whether the respondent No. 5 had the technical capacity in terms of clause 2.2.2.2, the respondent No. 5 had furnished the list of completing works executed by him in support of work experience/bid capacity/technical capacity. According to the State respondents, though they may be some procedural lapses but it is not the case of the appellant that the respondent never executed the works which they claim to have done as per the list of works submitted by them. The stand of the State respondents was accepted by the learned Single Judge. In absence of any specific denial in the pleadings, the conclusion arrived at by the learned Single Judge on this issue in our considered view requires no interference. 16. The next point for consideration before the learned Single Judge was whether the bid security of the respondent No. 5 was valid and in terms of the SBD. There is no dispute to the fact that the bid of the respondent No. 5 was accommodated by bid security. The mode and manner of submission of bid security is provided in clause 1.2.4, 2.20.2 & 3.1.6.(c) of the SBD. Admittedly, the State respondent accepted the bid of the respondent No. 5 which the said respondent had submitted in the first NIT. The records reveal that the State respondents had sought verification and confirmation of the validity of the bid security from the Bank concerned. Admittedly, the State respondent accepted the bid of the respondent No. 5 which the said respondent had submitted in the first NIT. The records reveal that the State respondents had sought verification and confirmation of the validity of the bid security from the Bank concerned. A reply was also made by the Bank informing that the same was valid. The stand of the appellants only appears to be hyper technical. Therefore, in our considered view, the State respondents cannot be said to have committed any illegality in accepting the bid security of the respondent No. 5. 17. The last point for consideration before the learned Single Judge was regarding financial bid of the respondent No. 5, which was -17.669% below the estimated rate and the appellants had quoted -3.600%. No materials have been brought to our notice to show that that there is a restriction in the range of quotation in respect of financial bids or that a bidder cannot go below a certain level. Therefore, considering the respective financial bids of the appellants and the private respondent No. 5, it cannot be said that LOA has been given to the respondent No. 5 against public interest by showing undue favouritism. 18. With regard to the delay in the submission of performance security and additional performance security, it is noticed that the same was never raised by the appellants before the learned Single Judge. Moreover, there is no dispute on the fact that due to the filing of a series of litigation before this Court on the project work in question, the matter was subjudiced and for which reason, the delay in the entire process cannot be solely attributed to the respondent No. 5. Under the peculiar facts and circumstance, delay cannot be said to be fatal. 19. A co-ordinate Bench of this Court in Tractor and Farm Equipment Ltd. vs. Secretary to the Govt. of Assam, reported in 2004 (2) GLR 56 observed that a writ appeal is really not a statutory appeal preferred against the judgment & order of an inferior Court to the superior Court. 19. A co-ordinate Bench of this Court in Tractor and Farm Equipment Ltd. vs. Secretary to the Govt. of Assam, reported in 2004 (2) GLR 56 observed that a writ appeal is really not a statutory appeal preferred against the judgment & order of an inferior Court to the superior Court. The appeal inter-se in a High Court from one Court to another is really an appeal from one co-ordinate Bench to another co-ordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, a writ appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined anew by the appellate Court, what is really examined, in a writ appeal, is the legality and validity of the Judgment and/ or order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the single Judge, which should, normally, be allowed to prevail. 20. The Apex Court in N Ramachandra Reddy vs The State Of Telangana, reported in (2020) 16 SCC 478 in the given facts of that case reiterated the principal that in an intra court appeal, unless Appellate Bench concludes that findings of the learned Single Judge are perverse, it shall not disturb the same. Further, by referring to various judicial pronouncement in respect of the power of the Court of judicial review in matters relating to contract, the Apex Court reiterated the law that the scope of interference of the Court is confined only to the examination of the decision making process and not the merits of the decision itself. 21. Further, by referring to various judicial pronouncement in respect of the power of the Court of judicial review in matters relating to contract, the Apex Court reiterated the law that the scope of interference of the Court is confined only to the examination of the decision making process and not the merits of the decision itself. 21. The Apex Court in Kuldeep Singh vs The Commissioner of Police & Ors, reported in (1999) 2 SCC 10 in the given facts of that case on perversity held that a broad distinction has to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse, But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be the conclusions would not be treated as perverse and the findings would not be interfered with. 22. The Apex Court in the case of M/S N.G. Projects Limited vs M/S Vinod Kumar, reported in (2022) 5 SCALE 105 at paragraph No. 23 of the said judgment held as follows:- “21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its juris-diction under Article 226 of the Constitution of India. 22... 23. In view of the above judgments of this Court, the Writ Court should re-frain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary ex-pertise to adjudicate upon such issues. The Court does not have the expertise to examine the terms and conditions of the present-day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary ex-pertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after com-plying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work. 24... 25... 26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.” 23. Coming to the facts of the present case as well, the project work relates to construction work from Tenning to Lekie for Nagaland which measures 37.50 kms and by applying the above law laid down by the Apex Court even if there is an instance of total arbitrariness or the tender has been granted in a mala fide manner found, there would be no scope for making interference in view of the decision of the Apex Court in M/S N.G. Projects Limited (supra). Although, the learned counsel for the appellants submits that the Apex Court decision in M/S N.G. Projects Limited (supra) was further clarified by the same Bench in the case of Civil Appeal No. 4141/2022 (Jai Bholenath vs Chief Executive Officer Zilla Parishad Nanded & Ors.) vide Order dated 18.05.2022. A perusal of the order would go to show that the facts are not similar and in fact, the Apex Court was of the view that there was gross violation of the principles of natural justice by the acceptance of the bid of respondent No. 4, which otherwise was already rejected/disqualified at the time of opening of the technical bid. The same is not the case in the present tender process concerned. Therefore, the case of M/S N.G. Projects Limited (supra) will only be binding upon this Court. 24. The learned counsel for the appellants have further submitted that since the Apex Court in Tata Cellular vs Union of India, reported in (1994) 6 SCC 651 has held that judicial review will apply to the exercise of contractual powers by the Government by Government bodies if there is arbitrariness or favouritism. He submits that the same ratio would apply to the present case and particularly, when the Bench which rendered the decision in Tata Cellular vs Union of India (supra) was a larger Bench than the Bench which rendered decision in M/S N.G. Projects Limited (supra). We, however, find that the Apex Court while deciding M/S N.G. Projects Limited (supra) had also taken into consideration the decision of the same Court in Tata Cellular vs Union of India (supra) and therefore, the latter cannot be applied ipso facto on account of the strength of the Bench. 25. Thus, upon due consideration of the matter in its entirety, we do not find any good ground to interfere with the judgment & order of the learned Single Judge. Accordingly, the writ appeal is dismissed. Interim order passed earlier, if any, shall stand merged with this order.