ORDER : Ramesh Sinha, J. 1. Heard Mr. Ratan K. Singh, learned Senior Advocate assisted by Mr. Rajeev Gurung and Mr. Abhyuday Singh, learned counsel for the petitioners. Also heard Mr. Abhishek Sinha, learned Senior Advocate assisted by Mr. Vaibhav Shukla, learned counsel for the respondent/SECL and Mr. Vaibhav Mishra, through Video Conferencing and Mr. Saurabh Dangi, learned counsel for intervenors. 2. Since both the writ petitions arise out of a common factual matrix and the issues involved for consideration are same, with the consent of parties, this Court is disposing of these petitions by a common order. 3. I.A. No. 03 of 2023, applications for impleadment have been filed by the applicants - Vijender Consultants Private Limited in WPC No.1633 of 2023 and Prafast Technologies Private Limited in WPC No. 2088 of 2023 as proposed respondent No.2 under Order 1 Rule 10 of CPC, 1908. 4. Mr. Vaibhav Mishra, learned counsel appearing for the applicants through Video Conferencing, submits that the petitioners have challenged the notice for cancellation of tender dated 14.03.2023 issued by respondent SECL, alleging that the respondent SECL has cancelled the tender processes in order to favour the applicants herein. He further submits that the applicants are necessary and proper party in the respective writ petitions, as allegations of mala fides and biasness have been made against the applicants. It is apt to state herein that there is a subsisting equitable interest of the applicant consortium in the subject matter of instant writ petition. Considering the applicants’ consistent involvement in the present matters, the applicants are necessary and proper party to these petitions. He also submits that to place the correct facts and to bring in the kind notice that no favourtism has been shown by respondent SECL, while issuing the notice dated 14.03.2023, whereby the tender process has been cancelled, the applications be allowed and they be impleaded as party respondent. In support of his contention he placed reliance on the judgment passed by the Apex Court in the matter of Prabodh Verma Vs. State of U.P., reported in (1984) 4 SCC 251 , wherein it has been held as under : “28. ….. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondent …..” 5. Mr. State of U.P., reported in (1984) 4 SCC 251 , wherein it has been held as under : “28. ….. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondent …..” 5. Mr. Mishra further placed reliance on the judgment passed by the Apex Court in the matter of Afcons Infrastructure Ltd. V. Nagpur Metro Rail Corpn. Ltd., reported in (2016) 16 SCC 818 where the High Court heard the writ petition of an unsuccessful bidder, wherein other bidders were not made party and in appeal by the party, who was not the party before the High Court, the Hon’ble Apex Court opined that in tender matters all bidders should be made party and held that : “18. Before we conclude, it is necessary to point out that the High Court was of opinion that the eligible bidders were not entitled to be either impleaded in the petition filed in the High Court by the ineligible bidder GYT-TPL JV or were not entitled to be heard. With respect, this is not the appropriate view to take in matters such as the present. There are several reasons for this, one of them being that there could be occasions (as in the present appeals) where an eligible bidder could bring to the notice of the owner or employer of the project that the ineligible bidder was ineligible for additional reasons or reasons that were not within the contemplation of the owner or employer of the project. It was brought to our notice by Afcons Infrastructure in these appeals that GYT-TPL JV did not have any experience in the construction of a viaduct by the segmental construction method and that the translations of documents in Mandarin language filed in the High Court were not true English translations. Submissions made by learned counsel for Afcons Infrastructure in this regard are important and would have had a bearing on the decision in the writ petition filed in the High Court but since Afcons Infrastructure was not a party in the High Court, it could not agitate these issues in the writ petition but did so in the review petition which was not entertained. It is to avoid such a situation that it would be more appropriate for the constitutional Courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder.” 6. On the other hand, Mr. Ratan K. Singh, learned Senior Advocate, appearing for the petitioners opposed the said IAs and submitted that till the stage there was any successful or unsuccessful tenderer, it is not required to be make them party in the proceeding. In support of his contention, he placed reliance in the judgment of the Hon’ble Supreme Court in the matter of Silppi Constructions Contractors Vs. Union of India and Another, reported in (2020) 16 SCC 489 , wherein it has been held as under : “21. It has been urged by the learned counsel for the petitioner that the Division Bench of the High Court erred in holding that the writ petition was not maintainable without making all the tenderers parties to the petition. At the outset, we may state that the Division bench of the High Court has held that in all cases challenging the decision of the tendering authority, all the eligible tenderers should be made parties. We do not think such a broad proposition could be laid down as an inflexible rule of law. Supposing the tender documents are not sold/delivered to a party wanting to submit a tender, in such a case the other tenderers would not be necessary parties. In the present case the petitioner was only challenging the rejection of its technical bid. At this stage the other tenderers were not necessary parties. The position may be otherwise if a tenderer challenges a bid awarded to another or challenges the rejection of his bid at a later stage. In our view the writ petition was maintainable even in the absence of other tenderers because till that stage there was no successful tenderer. Who are the necessary parties will depend upon the facts of each case.” 7. In view of the above, we do not find any good ground for allowing the applicants to be arrayed as party respondent as in the present cases, any successful or unsuccessful tenderer have not been pointed out and as such, they are not required to be heard. Accordingly, I.A. No. 03 of 2023 in both the petitions are rejected. 8. In view of the above, we do not find any good ground for allowing the applicants to be arrayed as party respondent as in the present cases, any successful or unsuccessful tenderer have not been pointed out and as such, they are not required to be heard. Accordingly, I.A. No. 03 of 2023 in both the petitions are rejected. 8. The above captioned both the writ petitions have been filed by the petitioners, who are consortium of two companies i.e., M/s. TMC Mineral Resources Private Limited and M/s Sharda Energy & Mineral Limited against the Notice dated 14.03.2023, described as “Corrigendum for Cancellation of Tender (“Impugned Notice”) issued by the respondent/SECL, whereby in WPC No. 1633 of 2023, the respondent has cancelled the tender process for “Reopening, Salvaging, Rehabilitation Development and Operation of Anjan Hill underground Mine” and in WPC No. 2088 of 2023, the respondent has cancelled the tender process for “Re-opening, Salvaging, Rehabilitation Development and Operation of Bartunga Hill underground Mine” on Revenue Sharing Basis, after opening the Technical Bids and decided to float fresh tender. 9. Briefly stated, the facts and circumstances, leading to the filing of WPC No. 1633 of 2023 are that as under :- (i) Respondent issued Notice Inviting Tender (NIT) dated 05.05.2022 bearing Tender No. : SECL/BSP/CMC/e-Tender/530 through electronic mode for re-opening, salvaging, rehabilitation development and operation of Anjan Hill underground Mine (“the project”) through a mine operator for excavation/extraction of coal and delivery thereto to the Authority. The said NIT also refers to Request for Bids (RFB), which inter-alia, contained ‘Instructions of Bidders’ and the procedure for ‘Evaluation of Bids’. As per NIT, the location of the project was Chirmiri Area, Chirmiri Coalfield, District – Korea, Chhattisgarh. The last date of submission of bid was 04.08.2022 and Bid opening date was 06.08.2022. (ii) Respondent issued Corrigendum bearing No. SECL/BSP/ CMC/MDO/ANJAN_CHRM/530/CORG-1/281 dated 28/30.05.2022 to the above said NIT dated 05.05.2022 with respect to certain tender conditions, including conditions related to “Coal Production Schedule” as mentioned in Clause 1.1.4 of RFB and format of Pre-Contract Integrity Pact document to be submitted by prospective bidders. In respect of Coal Production Schedule, the said Corrigendum, inter-alia, clarified that said document shall not be recycled as a shortfall confirmatory document against any deficiency in form of Omissions/Shortcomings since it is related to price bid evaluation. In respect of Coal Production Schedule, the said Corrigendum, inter-alia, clarified that said document shall not be recycled as a shortfall confirmatory document against any deficiency in form of Omissions/Shortcomings since it is related to price bid evaluation. (iii) On 14.07.2022 & 18.07.2022, Respondent issued certain clarifications with respect to the subject tender process. (iv) Respondent issued another Corrigendum bearing No. SECL/ BSP/ CMC/ MDO/ ANJAN_CHRM/ 530/ CORG-2/423 dated 28.07.2022 to the above said NIT dated 05.05.2022, whereby the Respondent, inter-alia, carried out certain changes in the conditions of tender as mentioned in said Corrigendum. By said Corrigendum, Respondent also extended the “bid submission end date” Technical Bid (Cover-I) Opening date and Last date of seeking clarification of the above tender”. Bid submission end date was extended upto 03.09.2022. Last date of seeking clarification was extended upto 14.08.2022 and the date of opening of tender (Cover-I Technical Bid) was extended upto 05.09.2022. (v) On 12.08.2022, Respondent issued further clarification with regard to subject tender process. (vi) Petitioner submitted its bid online along with all required documents as per the instructions contained in the NIT and RFB. (vii) Another bidder namely M/s.Vijender Consultants Private Limited ((“VCPL”) also submitted its bid in response to the above said NIT dated 05.05.2022. (viii) On 09.09.2022, after submission of bids, the Respondent opened the Technical Bids submitted by the bidders i.e. Petitioner and VCPL. (ix) Clause 3.8.1(e) of RFB contained the provision for seeking shortfall/confirmatory documents/clarification by Respondent from bidders during evaluation of bids. Such request for documents shall be made online under the link 'Upload Shortfall/Confirmatory Documents' after scrutiny of the Bids, indicating the start date and end date. If further clarification/shortfall documents/confirmatory documents are required, Respondent could grant further time to bidder to provide such clarification and submit shortfall documents/ confirmatory documents. Thus, Clause 3.8.1(e) of RFB, provided for two-round process for seeking clarifications/shortfall documents. For first round, the time limit provided under said clause was 7 days and for second round, if resorted to, time limit for providing documents/clarification by bidders was 5 days. The sub-clause (v) of said Clause 3.8.1 (e) stipulated as under: "(v) The eligibility of the Bidder shall be evaluated based on the documents submitted by the Bidder and the clarification/shortfall/confirmatory document submitted as per sub-clause (iii) and (iv) above. The sub-clause (v) of said Clause 3.8.1 (e) stipulated as under: "(v) The eligibility of the Bidder shall be evaluated based on the documents submitted by the Bidder and the clarification/shortfall/confirmatory document submitted as per sub-clause (iii) and (iv) above. No further document shall be sought from the Bidder.” (x) In terms of above Clause 3.8.1(e) of RFB, Respondent sought clarifications/confirmatory documents/shortfall documents from the bidders. For the first round, the "document submission start date" was 27.10.2022 and "document submission end date" was 03.11.2022. For the second round, the "document submission start date" was 30.12.2022 and "document submission end date" was 04.01.2023. (xi) In both the rounds, VCPL was asked to provide clarifications/ confirmatory documents/ shortfall documents on different aspects, including financial capacity, Integrity Pact, Legal Status etc. In its queries, the Respondent, inter-alia, mentioned that VCPL's bids was evaluated treating the bidder in the name and style of VCPL. VCPL submitted the clarification/confirmatory documents to the Respondent through online mode on 03.11.2022 & 04.01.2023 wherein it claimed to have submitted the bid as consortium. Some of the document, such as, Letter of bid, Integrity Pact, Digital Signature Certificate, Undertaking regarding genuineness of information are shown to have been accepted by Respondent with the remark "Accepted by TC and duly approved" However, the document such as financial capacity, legal status of bidder, power of attorney Mandate Form for Electronic Fund Transfer etc. were put under the heading "Recycle" and bidder/VCPL was asked to upload shortfall/confirmatory document as an individual entity, while reiterating the VCPL bid was evaluated as an individual entity. (xii) Petitioner received a letter dated 06.02.2023 from the Respondent whereby the Petitioner was asked to extend the bid validity for an additional period of two months i.e. upto 06.05.2023 as the tender evaluation process was taking some more time. Respondent asked the Petitioner to give its consent for said extension. In response to the above letter dated 06.02.2023, Petitioner vide letter dated 10.02.2023 communicated its consent for extension of validity of bid for an additional period of two months i.e. upto 06.05.2023. (xiii) Subsequently, the Respondent issued impugned notice dated 14.03.2023. 10. Respondent asked the Petitioner to give its consent for said extension. In response to the above letter dated 06.02.2023, Petitioner vide letter dated 10.02.2023 communicated its consent for extension of validity of bid for an additional period of two months i.e. upto 06.05.2023. (xiii) Subsequently, the Respondent issued impugned notice dated 14.03.2023. 10. Briefly stated, the facts and circumstances, leading to the filing of WPC No. 2088 of 2023 are that as under :- (i) Respondent issued Notice Inviting Tender (NIT) dated 05.05.2022 bearing Tender No. : SECL/BSP/CMC/e-Tender/532 through electronic mode for re-opening, salvaging, rehabilitation development and operation of Bartunga Hill underground Mine (“the project”) through a mine operator for excavation/extraction of coal and delivery thereto to the Authority. The said NIT also refers to Request for Bids (RFB), which inter-alia, contained ‘Instructions of Bidders’ and the procedure for ‘Evaluation of Bids’. As per NIT, the location of the project was Chirmiri Area, Chirmiri Coalfield, District – Korea, Chhattisgarh. (ii) Respondent issued Corrigendum bearing No. SECL /BSP/ CMC/ MDO/ ANJAN_CHRM/530/CORG-1/284 dated 30.05.2022 in relation to the Integrity pact and coal production schedule in respect of subject tender process. (iii) On 14.07.2022 & 18.07.2022, Respondent issued certain clarifications, inter-alia, regarding technical capacity for subject tender process. (iv) On 18.07.2022, Prospective Bidders sought clarification in respect of mineable reserve and balance extractable reserve as mentioned in the mine dossier, particularly in Clause 4 thereof. In said query of prospective bidder, it was mentioned that Mine Dossier “Balance Extractable Reserve” has been mentioned as 19.62 MT and “Total Mineable Reserve” has also been mentioned as 19.62 MT. In said context, clarification was sought by bidder(s) through online mode inter-alia to the effect that “how the balance extractable reserve and mineable reserve can be same ? In response to said query, the respondent issued a clarification (CLAR 19668), inter-alia, to the effect that “There is inadvertent typographical error, the balance Reserve may be read as minable reserve.” In response to another query as to which method was followed by respondent to derive balance extractable reserve from mineable reserve, the respondent answered/clarified as “Bibbers are free to choose method of mining and technology”. (v) On 19.07.2022, respondent issued certain clarification regarding Coal usage for captive purpose in relation to subject tender process. (v) On 19.07.2022, respondent issued certain clarification regarding Coal usage for captive purpose in relation to subject tender process. (vi) Respondent issued Corrigendum bearing No. SECL/BSP/CMC/MDO/ ANJAN_CHRM/530/CORG-2/421 dated 28.07.2022 to the above said NIT dated 05.05.2022, whereby the Respondent, inter-alia, carried out certain changes in the conditions of tender as mentioned in said Corrigendum. By said Corrigendum, Respondent also extended the “bid submission end date” Technical Bid (Cover-I) Opening date and Last date of seeking clarification of the above tender”. Bid submission end date was extended upto 03.09.2022. Last date of seeking clarification was extended upto 14.08.2022 and the date of opening of tender (Cover-I Technical Bid) was extended upto 05.09.2022. (vii) Petitioner vide forwarding letter dated 02.08.2022 submitted its bid online along with all required documents including Mining Scheme as per the instructions contained in the tender documents including NIT, RFB and Mine Dossier. (viii) Respondent on 12.08.2022 issued common clarification (CLAR 19747) in respect of different clauses of RFB and contract agreement. (ix) On 05.09.2022, Respondent opened the Technical Bids submitted by the bidders. (x) On 29.12.2022, respondent sought certain clarification / confirmation from petitioner. In said query respondent stated that proposal of grade slippage mentioned in the mining scheme submitted by petitioner was not acceptable to respondent and hence cognizance of the same is not being taken by respondent in respect of subject tender process. The respondent however sought confirmation from petitioner regarding non-acceptance of petitioner’s alleged proposal of grade slippage by respondent. As per the mining scheme, reference to grade slippage was only a situation which was explained. It was neither a proposal nor a condition. Petitioner had accepted the terms and conditions of tender and accordingly submitted its bid with the statement that the bids are unconditional and qualified. (xi) Subsequently, respondent vide letter No. SECL/BSP/CMC/ e-NIT – 532 / Validity Extension / 72 dated 06.02.2023 requested the petitioner to give its consent to extend the bid validity of petitioner by two months i.e. 02.05.2023 on the ground that the evaluation process was taking some more time. (xii) In response to above said letter of respondent, the petitioner vide letter dated 10.02.2023 gave its consent to extend the bid validity of petitioner by two months i.e. 02.05.2023. (xii) In response to above said letter of respondent, the petitioner vide letter dated 10.02.2023 gave its consent to extend the bid validity of petitioner by two months i.e. 02.05.2023. (xiii) However, though the respondent had extended the validity of bid of the petitioner upto 02.05.2023, on the other hand, the respondent had cancelled the entire tender process vide impugned notice dated 14.03.2023. 11. Mr. Ratan K. Singh, learned Senior Advocate, appearing for the petitioner submitted that in the tender process relating to Anjan Hills, one company, namely Vijendar Consultants Private Limited ("VCPL") had participated and submitted its bid. Said company, VCPL is owned, controlled and managed by the directors (Mr. Prit Singh & Mr. Samant Singh) of Prafast Technologies Private Limited, which is one of the bidders in the tender process for “Reopening, Salvaging, Rehabilitation Development and Operation of Bartunga Hill underground Mine”. During evaluation of bids in tender process of Anjan Hills, VCPL was found to be ineligible as its bids were considered as bids by individual entity instead of bids by consortium. VCPL insisted that its bids be considered as consortium so that it could meet the eligibility criteria. Respondent could not have acceded to said request of VCPL as in order to consider VCPL consortium, respondent required further documents from VCPL. However, as the respondent had already exhausted the two-round process of calling for documents, they could not consider said request of VCPL. In such circumstances, the respondent in order to favour the said company VCPL and its directors, cancelled the entire process of both the projects and decided to retender it so that VCPL and its consortium company i.e. Prafast Technologies Private Limited could apply afresh as consortium and become eligible for tender process. 12. Learned Senior Advocate further submitted that he has filed an I.A. No. 04 of 2023, seeking ad-interim ex-parte stay and for appropriate direction with supporting affidavit as the respondent has proceeded to implement and give effect to the decision, which has been challenged in WPC No. 2088 of 2023 by floating a fresh tender [(Annexure A-3 (Colly)] in respect of Bartunga Hill Mine, when this Court has already seized of the matter and has taken the view in its order dated 26.04.2023 that “the matter requires some consideration by this Court” and directed to list the matter for hearing. As the fresh tender now floated by respondent is an act to implement and give effect to the very decision, which is under challenge before this Court in the present writ petition, the same would adversely affect the interest of the petitioner and cause serious prejudice and detriment to the petitioner. 13. Learned Senior Advocate argued that another arbitrariness and irrationality in the impugned decision is that the respondent by way of impugned decision has sought to cancel the tender by relying on Clause 7 of the 'Guidelines for E-Procurement of Works & Services' and Clause 16 of the NIT. Clause 7 of said Guidelines deals with "Revocation of Tender Process". As per said Clause 7, revocation of tender process should not be resorted to in following three circumstances: (i) to comply with directives of Hon'ble Court of Law; (ii) if the Evaluator makes a mistake in online evaluation of tender, which is not in line with the Tender Committee decision & (iii) if there is an error in the online evaluation of tender due to technical error in the system. Clause 16 of the NIT as relied by respondent in the impugned notice empowers the respondent to reject any or all the bids without assigning any reasons. 14. He further argued that the present cases are neither the cases of 'revocation of tender process nor are the cases of 'rejection of bid'. These are the cases of cancellation of tender, which are covered by Clause 8 of the 'Guidelines for E-Procurement of Works & Services. The said Guidelines have been relied by the respondent in the impugned Notice, however respondent deliberately omitted to even mention the said Clause 8 which specifically deals with the 'cancellation of tender process' and instead relied on another Clause i.e. Clause 7 (revocation of tender) of said guidelines which has no bearing on present case. Relevant part of Clause 8 reads as under : "8. Cancellation of Tender: Any tender published on the e-Procurement portal must be concluded to its logical end i.e. either "Award of Contract" or "Cancellation of Tender" or "Retender". It will be the responsibility of the Publisher of tender to conclude the published tenders to its logical end within the original bid validity period. Tenders should be cancelled only under exceptional cases with due approval of Tender Approving Authority. It will be the responsibility of the Publisher of tender to conclude the published tenders to its logical end within the original bid validity period. Tenders should be cancelled only under exceptional cases with due approval of Tender Approving Authority. In case of tenders where Board of Directors of CIL/Subsidiary is the Tender Approving Authority, in such cases the approval of Chairman/CMD, CIL/Subsidiary will be required. However, for cancellation of Tender due to nonreceipt of any bid no approval will be required. In all such cases the Tender Cancellation Notice must contain the details of the circumstances leading to cancellation of tender. The Cancellation of Tender on the e-Procurement portal can be done by way of creation and publication of corrigendum. However, since Cancellation of Tender, in true sense, is not a Corrigendum to NIT, the Tender Cancellation Notice will be uploaded only on the e procurement portal." 15. He also argued that as per the document (ie. 'Guidelines for E-Procurement of Works & Services') relied by respondent in the impugned decision, the tender can be cancelled only under exceptional cases with due approval of Tender Approving Authority. In other words, in order to cancel the tender, there must exist "exceptional" circumstances. The impugned notice is totally silent on such "exception case" warranting cancellation of tender. The impugned notice does not even refer to or invoke any clause dealing with cancellation of tender including Clause 8 of 'Guidelines for E-Procurement of Works & Services'. Therefore, even as per impugned notice, neither there exist any "exception case" as mentioned in Clause for E-Procurement of Works & Services', nor has any such 'exception case' been made out or even mentioned in the impugned notice. Therefore, the impugned notice is in contravention of the tender conditions and clearly demonstrates the irrational and arbitrary actions on the part of respondent/public authority. 16. Learned Senior Advocate placed reliance in the judgment passed by the Hon’ble Supreme Court in the matter of Union of India and Others v. Dinesh Engineering Corporation and Another reported in (2001) 8 SCC 491 , wherein the Hon’ble Supreme Court has held as under : "15. 16. Learned Senior Advocate placed reliance in the judgment passed by the Hon’ble Supreme Court in the matter of Union of India and Others v. Dinesh Engineering Corporation and Another reported in (2001) 8 SCC 491 , wherein the Hon’ble Supreme Court has held as under : "15. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioner's tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways.… 16. But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution." 17. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law especially Article 14 of the Constitution." 17. Learned Senior Advocate also submitted that the impugned decision is also unfair as well as to the prejudice to the Petitioner/another bidder as the mining scheme filed by petitioner as part of its technical bid in compliance with Clause 1.1.4 of RFB is now known to other bidders/competitors. As per Clause 1.1.4 of RFB, bidders were required to submit the mining scheme which should, inter-alia, incorporate proposed mining method(s), year wise production quantities, total extractable reserve from the mine etc. As per Clause 3.8.2 of RFB, percentage of 'Revenue Share of Authority' quoted in the price bid and 'Coal Production Schedule' proposed in the Mining Scheme shall be considered for price bid evaluation. In compliance with said tender condition, Petitioner engaged its own experts and also DMT Consulting, a UK based high repute consultant firm, for techno-commercial due diligence of Anjan Hills mine and determined the technology, year wise production quantities and total extractable reserve from the mine and filed the same as part of technical bid in response to subject tender. The total extractable coal as submitted by the petitioner as against another bidder/VCPL clearly indicates that the Petitioner has clear edge over VCPL. The petitioner had submitted the Mining Scheme for a total extractable reserve of 19.95 million Tonnes whereas the other Bidder VCPL has quoted 1.227 Million Tonnes only for Anjan Hills. Thus, as the petitioner's Mining Scheme, which included the scheme of total coal production, is already disclosed and the other bidders are in know of the same, the re-tendering process would cause serious prejudice and injustice to the petitioner. Therefore, the impugned decision is liable to be set aside and quashed by this Hon'ble Court. The impugned decision would also adversely affect the public interest as process of retendering would cost to the public exchequer. If the process of tender is delayed, not only the project would be delayed but due to inflation, cost of the project would also escalates which would ultimately affect the public interest. 18. Mr. The impugned decision would also adversely affect the public interest as process of retendering would cost to the public exchequer. If the process of tender is delayed, not only the project would be delayed but due to inflation, cost of the project would also escalates which would ultimately affect the public interest. 18. Mr. Abhishek Sinha, learned Senior Advocate appearing for the respondent/SECL submitted that there is no doubt that it was two packet tendering system, first is the technical part and next is the financial part. At the stage of technical evaluation, there were certain complaints made and under the tender process, there is a provision under the Integrity Pact, as per the CBC guidelines, that to refer to the Independent External Monitor (IEM), who has to see about some disputes or differences or the complaints, the matter was referred to it. The first decision was not duly composed, it gave one opinion thereafter, it was sent to the second IEM. The second IEM also said that there is an ambiguity in the tender condition, you should treat VCPL as a consortium, earlier we were treating them as individual. In view of this, the matter was referred to Additional Solicitor General (ASG) and opinion was also sought as to what should be the legal status. He further submits that as works in both the tenders are for re-opening, salvaging, rehabilitation development and operation of underground mines on revenue sharing basis for a period of 25 years and they are very high tenders, in order to avoid any possibility of further litigations, the Tendering Committee on the basis of confirmatory documents, IEMs opinion, ASG’s opinion, provisions of Request of Bid (RFB) and other NIT related documents has discussed and deliberated as follows : “I. Both the rounds of seeking clarification/ recycle option from the bidders have been completed/exhausted as per Clause no: 3.8.1 (e) of RFB by allowing period of (i) from 27/10/2022 to 03/11/2022 for the first time and (ii) from 30/12/2022 to 04/01/2023 for the second time. The opinions of IEM and ASG to consider Vijender Consultants Private Limited as Consortium were received after the 2nd recycle option. During 1st and 2nd rounds of seeking clarifications, the bidder “Vijender Consultants Private Limited” was not considered as Consortium and evaluated as single entity. II. The opinions of IEM and ASG to consider Vijender Consultants Private Limited as Consortium were received after the 2nd recycle option. During 1st and 2nd rounds of seeking clarifications, the bidder “Vijender Consultants Private Limited” was not considered as Consortium and evaluated as single entity. II. Shortfall/ deficiency in the following confirmatory documents like Financial Capacity and Legal Status of Bidder of bidder Vijender Consultants Private Limited considering as Consortium are still required for further evaluation. III. Any document not received through e-portal should not be given cognizance as per clause no:10 of NIT and as per Clause no: 3.8.1 (e) of RFB titled as 'Techno-Commercial Evaluation of Tender’. (a) The relevant contents of Clause no: 10 of NIT are as follows; “Bidders shall submit the information in an objective manner confirmed by the uploaded documents. The documents related to the information furnished online, based on which the auto evaluation takes place, will only be considered. If a Bidder uploads any other document, it will not be given any cognizance.” (b) The relevant contents of Clause no: 3.8.1 (e) are as follows; “(e) Shortfall/confirmatory documents: (i) During evaluation of the Bids, the Authority may seek any shortfall/confirmatory documents, if required. (ii) Such requests for documents shall be made online under the link 'Upload Shortfall/Confirmatory Documents' after scrutiny of the Bids, Indicating the start date and end date giving 24x7 hours duration for online submission by the relevant Bidders. (iii) The relevant Bidders will receive information in relation to such requests on their personalised dashboard under the "Upload Shortfall/ Confirmatory Document/ Information" link. While such information shall also be sent by a system generated email and SMS, it will be the Bidder's responsibility to check the updated status/ Information on their personalised dashboard at least once daily after the opening of the Bid. Such shortfall / confirmatory documents are to be uploaded by the Bidders within the specified time period under the link ‘Upload Shortfall / Confirmatory Documents'. (iv) If further clarifications/ shortfall documents/ confirmatory documents are required, a time frame of 5x24 hours (5days) will be provided to the relevant Bidders for online submission of such documents. (v) The eligibility of the Bidder shall be evaluated based on the documents submitted by the Bidder and the clarification/shortfall/ confirmatory document submitted as per sub-clauses (iii) and (iv) above. (iv) If further clarifications/ shortfall documents/ confirmatory documents are required, a time frame of 5x24 hours (5days) will be provided to the relevant Bidders for online submission of such documents. (v) The eligibility of the Bidder shall be evaluated based on the documents submitted by the Bidder and the clarification/shortfall/ confirmatory document submitted as per sub-clauses (iii) and (iv) above. No further document shall be sought from the Bidder.” The reason for the same although has not been mentioned either in NIT or RFB, but it can be assumed that the documents received through both (ii) and (iii) cannot be available in public domain for all other bidders to look into. IV. REVOCATION: The relevant contents of the Clause no:7 titled as "Revocation of Tender Process" of Guidelines for e-procurement of Works and Services may be referred to and the content of the same are reproduced as follows: “7. REVOCATION OF TENDER PROCESS: The online evaluation of tender must be performed by the Evaluator with utmost care and diligence. The Evaluator of tender must ensure that the decision of Tender Committee is correctly uploaded on the e-Procurement portal. However, there may be situation when the decision of Tender Committee may have to be changed subsequently on account of a Court's verdict. Also, there may be circumstances when online evaluation of tender is not done correctly due to mistake by the Evaluator or due to technical error in the system, which may lead to cancellation of tender. In order to avoid the cancellation of tender in such cases, the tender process needs be reverted back to appropriate stage (i.e. bid Opening stage etc.) to comply with the Court's verdict or to rectify the error committed by the Evaluator. This provision in the e-Procurement system has been introduced with an objective to abide by the Court's verdict or to ensure that the tender process should not suffer due to any mistake committed by an individual or due to any technical error in the system. Revocation of Tender process back to Technical-bid opening stage or Price-bid opening stage from an advanced stage shall be done under the following circumstances: a. To comply with the directives of Hon'ble Court of Law. b. If the Evaluator makes a mistake in online evaluation of tender, which is not in line with the Tender Committee decision. Revocation of Tender process back to Technical-bid opening stage or Price-bid opening stage from an advanced stage shall be done under the following circumstances: a. To comply with the directives of Hon'ble Court of Law. b. If the Evaluator makes a mistake in online evaluation of tender, which is not in line with the Tender Committee decision. c. If there is an error in the online evaluation of tender due to technical error in the system. Revocation of Tender process will be done with the specific approval of the concerned Director. In all such cases the Tender Revocation Notice must contain the details of the circumstances leading to revocation of tender process. The Revocation of Tender on the e-Procurement portal can be done by way of creation and publication of corrigendum. However, since Revocation of Tender, in true sense, is not a Corrigendum to NIT, the Tender Revocation Notice will be uploaded only on the e-Procurement portal. In case of revocation of Tender at any stage the autorefund of EMD may not work properly and in such case it may be required that Tender Inviting Authority to arrange refund of EMD through conventional system of refund of EMD.” The instant situation due to which Cancellation of Tender has been proposed by Tender Committee is different from all the 03 (Three) possible situations as provided in the Clause no: 7 titled as "Revocation of Tender Process" of Guidelines for e-procurement of Works and Services. Hence, the possibility of Revocation Process cannot be applied suitably in this Tender. v. In view of reasons mentioned above, there are 03 (Three) different options or their combination available with TC to proceed further: (a) To ask shortfall confirmatory documents in e-Procurement portal once more after obtaining approval of Competent Authority but this may be treated as a deviation to provisions of NIT/RFB and results to Post tender modification. OR (b) To ask shortfall confirmatory documents in any sort of off-line or other online mode (i.e. Not through e-Procurement Portal) after obtaining approval of Competent Authority but this even may be treated as a deviation to provisions of NIT/RFB and results to Post tender modification. OR (b) To ask shortfall confirmatory documents in any sort of off-line or other online mode (i.e. Not through e-Procurement Portal) after obtaining approval of Competent Authority but this even may be treated as a deviation to provisions of NIT/RFB and results to Post tender modification. OR (c) To consider the bid documents and confirmatory documents of NIT no: 532 dt: 05/05/2022 (Bartunga UG mine), in which M/s Hindustan Power Projects Private Limited and M/s Hindustan EPC-Co Private Limited are the members of 'Prafast Technologies Private Limited’ Consortium with Lead member M/s Prafast Technologies Private Limited. As per the principle of proper evaluation with natural justice, every tender has to be treated a specific one based on its own merits. No document from other tenders/ file is to be considered or given weightage for the reasons already mentioned in (a) and (b) above. Apart from all above reasons M/s Vijender Consultants Private Limited has neither participated as individual entity nor in Consortium form in any other Tender similar to the Instant Tender in SECL. Hence no option out of 03 (Three) different options or their combination mentioned at (a), (b) and (c) above seems logical to get the requisite shortfall documents (both certified and notorised copies) from M/s Vijender Consultants Private Limited as consortium. (d) The content of clause no.16 of NIT is reproduced hereunder : “The Authority does not bind itself to accept the Bid having highest net present value (NPV) and reserves the right to reject any or all the Bids without assigning any reasons whatsoever, without incurring any liability to the Bidder(s) (affected or otherwise) or any obligation to inform the affected Bidder(s) on the ground of the Authority's action.” From the above clause, it has been observed that the SECL Management has right to cancel the tender outrightly without assigning any reason. In view of above TC opines to Cancel the Tender at this stage without proceeding further. 2. TENDER COMMITTEE RECOMMENDATIONS : Tender Committee recommends for Cancellation of instant tender and retender of the work by customizing the Tender Document comprising of RFB, Model Contract Agreement, Mine Dossier and other relevant documents.” 19. Mr. Sinha, on the basis of aforesaid, submitted that it is not only simple cancellation but there is also a recommendation of Tender Committee to modify the tender documents comprising of RFB, Model Contract Agreement, Mine Dossier and other relevant documents. 20. Mr. Sinha, on the basis of aforesaid, submitted that it is not only simple cancellation but there is also a recommendation of Tender Committee to modify the tender documents comprising of RFB, Model Contract Agreement, Mine Dossier and other relevant documents. 20. In reply to I.A. No. 04 of 2023, filed by the petitioner in WPC No. 2088 of 2023, Mr. Sinha submitted that the prayer made by the petitioner in its interim application for staying the effect and operation of tender notice dated 13.07.2023 and 27.06.2023 (2nd Call) cannot be granted to the petitioner as the petitioner has failed to challenge the same by amending the writ petition. In absence of any challenge to the subject tender, no interim relief or final relief whatsoever can be granted to the petitioner. Therefore, the instant application of the petitioner is liable to be dismissed. As regards the submission of the petitioner that on account of floating of new tender and the same has not been challenged the petition become infructuous is concern, the same is also baseless because the respondent has floated the new tender in which there is specific rider that the present tender would be subject to the outcome of present writ petition. It is submitted that the new tender has been floated because of the Coal Production is required urgently in the given scenario in national interest. The respondent in their reply filed has categorically stated the reasons for cancellation of the earlier tender vide corrrigendum/letter dated 14.03.2023. In the present tender, the respondent has removed all the discrepancies and if the respondent would have continued with the tender process by opening the price bid instead of cancelling the tender, the same could have led to various complaints and illegality to be perpetuated. The respondent in the present tender has clarified all the issues regarding legal status, Net worth and coal reserves which shows the bonafide of the respondent that the tender was not cancelled for giving any favour to M/s. Prafast Technologies and there were genuine concern and ambiguity with respect to above issues in the earlier tender leading to cancellation of the same. 21. 21. The respondent in Part-1/Cover 1 - other documents under the criteria, legal status has clarified the legal status as Note and Special Note as under : "Note : All the members of a Consortium may together authorise the Lead Member to submit the bid on behalf of the Consortium, along with the undertaking that in case of a successful bid, the work shall be executed by the Consortium as per contract terms of the bid document. Special Note : The Consortium may enrol in the name of the Lead Partner in GeM portal with the name of the firm as appearing in the Consortium agreement. However, the Consortium has to register its name in GeM portal by obtaining all requisite Legal Documents (PAN, GST, etc) in the name of Consortium before execution of the Agreement." 22. As regards the 2nd discrepancy in the earlier tender with respect to value of Net worth of a new firm formed after issuance of NIT has also been removed. The earlier tender was silent on this aspect and therefore, in the new tender it has been incorporated stating that "in case the bidder participates as a Consortium with constituent members which has been firmed with the maximum period of one year cannot furnished the requirement "Net worth" of financial capacity of eligibility criteria at the close of latest financial year among the three financial year chosen by the bidder. Hence their case cannot be considered as eligible. 23. It is submitted that in view of above newly inserted clarifications in the new tender M/s. Prafast Technolo Pvt. Limited would not be eligible in any form whether it is individual or as a member of any consortium therefore, the allegation of the petitioner that the earlier tender has been cancelled to favour M/s. Prafast Technologies is completely baseless and frivolous. 24. As regards the 3rd discrepancy in the earlier tender with respect to coal reserves figures wherein, minimum extractable reserve and balance reserve quantity were same. The said has been clarified in the new tender Mine Dossier and as well as in pre-bid meeting held on 28.07.2023, wherein the petitioner also participated as prospective bidder. 24. As regards the 3rd discrepancy in the earlier tender with respect to coal reserves figures wherein, minimum extractable reserve and balance reserve quantity were same. The said has been clarified in the new tender Mine Dossier and as well as in pre-bid meeting held on 28.07.2023, wherein the petitioner also participated as prospective bidder. In both NIT conditions and pre-bid meeting it has been clarified that for underground mines the minimum extractable reserve is not similar to balance reserve and the minimum extractable reserve is 65% of balance reserve which is 12.75 MT instead of 19.62 MT. The quantity of 12.75 MT has also been mentioned in the bid document column relating to mineral reserves for contract which was earlier 19.62 MT. 25. As regard to the prejudice to the petitioner in participating to the fresh tender is concern, Mr. Sinha submitted that there is no prejudice for the simple reason that the price bid has not been opened yet, only the quantity to be mined per annum is immaterial and is of no consequence because unless and untill what is the revenue that the bidders are going to share for that mining is disclosed in the public domain. He further submitted that there is also difference in mining plan submitted by the bidders, the petitioner says that they will be doing opencast mining whereas the other parties have bidded that they will do underground mining, there has to be some difference. Now what the petitioner is going to do in opencast in one year is immaterial because neither the petitioner knows nor the other parties knows or even the Tender Committee knows about what is the financial revenue sharing. He also submitted that the crux of the matter is revenue and since the revenue has not been disclosed, no enforcible right has accrued in favour of the petitioner. He has a right to participate in the second tender. 26. Lastly, Mr. Sinha submitted about what is the scope of judicial review would be to the decision making process. The respondent has taken a decision that considering the relevant aspects, the Court would not sit up as a appellate authority to the Tendering Committee and say that this should have been done by the Tendering Committee. He placed reliance on the judgment passed by this Court in case of Vedanta Limited Vs. The respondent has taken a decision that considering the relevant aspects, the Court would not sit up as a appellate authority to the Tendering Committee and say that this should have been done by the Tendering Committee. He placed reliance on the judgment passed by this Court in case of Vedanta Limited Vs. State of Chhattisgarh & Others (WPC No. 3040 of 2023 decided on 07.07.2023), wherein the Court, relying on the latest Supreme Court Judgment in the case of Tata Motors Limited v The Brihan Mumbai Electric Supply & Transport Undertaking (Best) and Others passed in Civil Appeal No. 3897 of 2023 vide judgment dated 19.05.2023, has passed dismissed the writ petition filed by the petitioner therein. 27. At this stage, Mr. Singh, learned Senior Advocate, appearing for the petitioners submitted that let both the bids be opened. 28. On reply to the said contention, Mr. Sinha, learned Senior Advocate, appearing for the respondent submitted that as far as opening of the did is concerned, we have already discharged it and have floated a subsequent tender in respect of Bartunga Hil underground Mine, by which the Tender Committee had also said that we need to change the tender conditions, we cannot leave it for litigations since it is a high value long term tender on revenue sharing basis and the petitioners have right to participate in the same. 29. We have heard learned counsel for the parties and perused the relevant materials available on record with utmost circumspection. 30. Article 226 of the Constitution of India empowers the high courts to issue any person or authority, including any government, directions, orders or writs "for the enforcement of any of the rights conferred by Part III and for any other purpose". Though "any other purpose" as provided for in Article 226 alludes that High Courts have a wide discretion in the exercise of writ jurisdiction, judicial precedents hold otherwise. As has been held in Veerappa v. Raman & Raman Ltd. and Ors. Though "any other purpose" as provided for in Article 226 alludes that High Courts have a wide discretion in the exercise of writ jurisdiction, judicial precedents hold otherwise. As has been held in Veerappa v. Raman & Raman Ltd. and Ors. [1952] 1 SCR 583, writs under Article 226 are intended to enable the High Court to issue them in grave cases where subordinate tribunals or bodies act wholly without or in excess of jurisdiction, or in violation of principle of natural justice, or refuse to exercise jurisdiction vested in them, or there is an error apparent on face of record and that such act, omission, error or excess has resulted in manifested injustice. In relation to application of writ jurisdiction in private matters, the Apex Court in Shalini Shyam Shetty and Ors. v. Rajendra Shankar Patil [2010] 8 SCR 836 has elucidated that writ petition is a remedy in public law and can be filed against Government or State or their instrumentalities and private individuals cannot be equated with State or its instrumentalities. However, private parties acting in collusion with State can be respondents in writ petitions. Therefore, as a principle, in case of property rights and in disputes between private individuals, writ court should not interfere unless there is any infraction of statute, or it can be shown that a private individual is acting in collusion with a statutory authority. Further, in Radhakrishna Agarwal v. State of Bihar [1977] 3 SCR 249, the Apex Court held that one may direct attention to the case where State instrumentalities act in contractual capacity. Judicial precedents hold that where there is a contract entered into between the State and the persons, as such, this contract is non-statutory and creates a purely contractual relation where the rights are governed only by the terms of the contract, then no writ or order can be issued under Article 226 so as to compel the authorities to remedy breach of contract. The above rationale was upheld in the case of Uttar Pradesh Power Transmission Corporation Ltd. v. CG Power and Industrial Solutions Ltd. & Anr. reported in AIR 2021 SC 2411 . 31. The Hon’ble Supreme Court recently in the case of Tata Motors Limited (surpa) held as follows : “48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. reported in AIR 2021 SC 2411 . 31. The Hon’ble Supreme Court recently in the case of Tata Motors Limited (surpa) held as follows : “48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. (See: Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489 ). 52. Ordinarily, a writ court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer unless something very gross or palpable is pointed out. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. The court ordinarily should not interfere in matters relating to tender or contract. To set at naught the entire tender process at the stage when the contract is well underway, would not be in public interest. Initiating a fresh tender process at this stage may consume lot of time and also loss to the public exchequer to the tune of crores of rupees. The financial burden/implications on the public exchequer that the State may have to meet with if the Court directs issue of a fresh tender notice, should be one of the guiding factors that the Court should keep in mind. This is evident from a three-Judge Bench decision of this Court in Association of Registration Plates v. Union of India and Others, reported in (2005) 1 SCC 679 . 53. The law relating to award of contract by the State and public sector corporations was reviewed in Air India Ltd. v. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process, the court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. 54. As observed by this Court in Jagdish Mandal v. State of Orissa and Others, reported in (2007) 14 SCC 517 , that while invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.” 32. Considering the submissions advanced by the learned Senior Advocates appearing for the parties as well as the considering the judgment of Hon’ble Apex Court in the catena of judgment referred hereinabove and also the recent pronouncement in Tata Motors Ltd (supra) regarding the interference of this Court in evaluation of tenders in awarding of contracts and particularly the fact that both the tender processes are premature as the price bids have not been opened and before finalization of the tendering process, the Tendering Committee on the basis of confirmatory documents, IEMs opinion, ASG’s opinion, provisions of Request of Bid (RFB) and other NIT related documents as works in both the tenders are for re-opening, salvaging, rehabilitation development and operation of underground mines on revenue sharing basis for a period of 25 years and they are very high value tenders, in order to avoid any possibility of further litigations and for transparency to give opportunities to other bidders and in order to save the revenue loss have already cancelled both the tender processes and also considering the fact that they have already floated and a new tender in respect of Bartunga Hill Underground Mine and also the fact that till date, in both the cases only technical bids have been opened and financial bids have not been opened, only the quantity to be mined per annum has been disclosed, which is immaterial and is of no consequence because unless and untill what is the revenue that the bidders are going to share for that mining is disclosed in the public domain it would not cause prejudice to any of the parties and also considering the fact that there is also difference in mining plan submitted by the bidders, the petitioner says that they will be doing opencast mining, whereas the other parties have bidded that they will do underground mining, we do not find any good ground for interference entire tendering process. 33. 33. Accordingly, both the writ petitions are dismissed leaving it open for the parties to participate in the fresh tender proceedings. 34. Consequently, all the IAs stand disposed of.