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2025 DIGILAW 1607 (GAU)

N. T. Agency v. Tenzing Construction

2025-09-16

BUDI HABUNG, NELSON SAILO

body2025
JUDGMENT : Nelson Sailo, J. Both the interlocutory application as well as the writ appeal are being disposed of by this common judgment and order. Heard Mr. D. Mazumdar, learned senior counsel assisted by Mr. T. Bagang, learned counsel for the writ appellant. Also heard Mr. D. Das, learned senior counsel assisted by Mr. R.B. Phukan, learned counsel for the respondent No.1/writ petitioner and Mr. G. Tarak, learned Standing Counsel for Rural Works Department representing respondent Nos. 2 to 4. [2.] This is a writ appeal against the judgment and order dated 23.05.2025 passed by the learned Single Judge in WP(C) No.619/2024. The present writ appellant was the respondent No.5 in the writ petition and the present respondent No.1 was the writ petitioner before the learned Single Judge. The writ petition vide judgment and order dated 23.05.2025 came to be disposed of in favour of the writ petitioner and therefore, the respondent No.5 being aggrieved has filed the instant writ appeal. [3.] The interlocutory application is filed by the writ petitioner, who is also the respondent No.1 in the writ appeal praying for vacation/modification/alteration of the interim order dated 27.05.2025 passed by this Court in the writ appeal, whereby the impugned judgment and order dated 23.05.2025 rendered by the learned Single Judge has been stayed. As already stated and as agreed to by the parties, both the interlocutory application and the writ appeal are taken up together for consideration and being disposed of by this common judgment and order. [4.] Brief facts essential for the disposal of the case is that the writ petitioner by filing the writ petition challenged the action of the official respondents in rejecting its bid in the technical evaluation which was submitted pursuant to a Notice Inviting Tender (NIT) dated 05.07.2024 for construction of LO27-road from Kremapao Road to Raro vide Package No.AR-03-03268. Grounds taken inter-alia by the writ petitioner is that its’ technical tender had been rejected in a mechanical manner and without assigning proper reasons. The same has resulted in the reduction of competitiveness of the financial evaluation. [5.] According to the writ petitioner, it had participated in the tender process by submitting all necessary documents and fulfilling the criteria prescribed. Grounds taken inter-alia by the writ petitioner is that its’ technical tender had been rejected in a mechanical manner and without assigning proper reasons. The same has resulted in the reduction of competitiveness of the financial evaluation. [5.] According to the writ petitioner, it had participated in the tender process by submitting all necessary documents and fulfilling the criteria prescribed. On 02.08.2024, technical evaluation was done where the bid of the petitioner was rejected for not being responsive and attracting the following clauses of the Instructions to Bidders (ITB):- (i) Clause 4.4B(b)(i); (ii) Clause 4.4B(b)(ii) and (iii) Clause 4.7(i). [6.] The writ petition filed by the writ petitioner was contested by the respondents by filing their respective counter affidavits and consequently, the learned Single Judge vide the impugned judgment and order dated 23.05.2025, for the reasons assigned, came to the conclusion that the technical bid of the writ petitioner could not have been rejected by the authorities concerned and therefore, all consequential actions including the issuance of Letter of Intent and the Work Order in favour of the respondent No.5/writ appellant were accordingly set aside. Further direction given was that the remaining part of the work should be assessed and allotted to L-1 bidder found to be eligible in accordance with law. It was also provided that there would be no restriction for payment and release of all the bills for the works done by the respondent No.5/appellant. [7.] Mr. D. Mazumdar, learned senior counsel submits that no public interest is involved in the matter necessitating interference with the allotment of work in favour of the writ appellant since the dispute raised in the writ petition was only in respect of matters involved between two bidders. He submits that the writ appellant has made an overall progress of the work to the extent of 59.79% as on 03.07.2025, which is reflected in the order of this Court dated 03.07.2025. Such being the position, the learned senior counsel submits that the Court may not interrupt the contract work which is more than half way through now. He submits that the writ appellant has made an overall progress of the work to the extent of 59.79% as on 03.07.2025, which is reflected in the order of this Court dated 03.07.2025. Such being the position, the learned senior counsel submits that the Court may not interrupt the contract work which is more than half way through now. [8.] The learned senior counsel also submits that the technical bid of the writ petitioner was rightly rejected by the authority because with one set of equipment and technical personnels, it would not be possible for the writ petitioner to execute the work in respect of three different packages and that it was not specified by the writ petitioner for which package the equipment and technical personnels were available. Therefore, the rejection of the technical bid of the writ petitioner cannot be said to be erroneous or arbitrary as alleged by the writ petitioner. [9.] The learned senior counsel also submits that reliance placed on the case of Commissioner of Police Vs. Gordhandas , AIR 1952 SC 16 is only misplaced and not applicable in view of the fact that the writ petitioner failed to specify the availability of three different sets of equipment and technical personnels for the three different packages and for that reason Clause 4.4B(b) (i) of the ITB was clearly attracted. The learned senior counsel submits that at any rate, the writ petitioner does not have the locus-standi to file the writ petition and challenge the action of the authority in rejecting its technical bid and not opening its price bid since the writ petitioner itself failed to fulfill the conditions of tender. The learned senior counsel submits that the learned Single Judge failed to appreciate the fact that the writ petitioner suppressed the pendency of two writ petitions filed by it against the department and there was clearly false or misrepresentation on its part as per Clause 4.7 of the ITB. As per the writ appellant, although there were two writ petitions pending, but as the appellant is only a respondent and therefore, the same cannot be said to be misrepresentation as held by the learned Single Judge. The learned senior counsel thus submits that the impugned judgment and order should be interfered with by this Court by setting aside the same. The learned senior counsel thus submits that the impugned judgment and order should be interfered with by this Court by setting aside the same. [10.] In support of his submission, the learned senior counsel relies upon the following authorities:- (i) The Silppi Constructions Contractors Vs. Union of India & Anr. etc. etc , (2020) 16 SCC 489 (ii) Tata Motors Limited Vs. Brihan Mumbai Electric Supply and Transport Undertaking (BEST) & Ors. (2023) 19 SCC 1 ; and (iii) Raunaq International Limited Vs. I.V.R Construction Ltd. (1999) 1 SCC 492 . [11.] In respect of the interlocutory application, Mr. D. Mazumdar, learned senior counsel submits that the writ appellant was duly authorized by the proprietor to appear and take all necessary steps to rebut the writ petition. In fact, since the writ petitioner as respondent No.1 in the writ appeal has questioned the locus-standi of the writ appellant to take necessary steps on behalf of the proprietor, the writ appellant has annexed the Special Power of Attorney executed by the proprietor in favour of Sri Raj Pao and the same was duly executed before the Executive Magistrate in presence of two witnesses. The said Special Power of Attorney was executed on 02.12.2024 and therefore, there cannot be any dispute with regard to the steps taken by the Power of Attorney holder. He submits that there is no requirement in law to register the Special Power of Attorney. He also submits that according to the writ petitioner/respondent No.1, the proprietor Sri Lobsang Tsering purportedly signed an affidavit stating that he did not sign the Vakalatnama and did not file the Writ Appeal No.22/2025 before the High Court. However, the said affidavit cannot be accepted as a valid affidavit in view of the fact that the declaration made therein is not made and affirmed before the competent authority in the manner prescribed by the relevant provisions of the Oaths Act, 1969. Moreover, the affidavit has to be duly registered in the register maintained by the authority before whom the declaration is made and the contents of the affidavit affirmed. Therefore, the learned senior counsel submits that there is no substance in the allegation made in the interlocutory application, which requires the intervention of this Court. [12.] Mr. Moreover, the affidavit has to be duly registered in the register maintained by the authority before whom the declaration is made and the contents of the affidavit affirmed. Therefore, the learned senior counsel submits that there is no substance in the allegation made in the interlocutory application, which requires the intervention of this Court. [12.] Mr. D. Das, learned senior counsel responding to the writ appeal submits that it is not the prescription of the NIT that one should have three sets of equipments and supporting manpower. It is only provided that the bidder has to demonstrate the availability of such materials for construction work. In this regard, the learned senior counsel draws the attention of this Court to Clause-4.4B(b)(i) and (ii) of the ITB. He also refers to Clause-4.4C of the ITB and submits that demonstration of having the experience and resources is sufficient. The learned senior counsel further submits that the writ petitioner in fact was declared to be qualified in another contract which was initiated vide NIT dated 28.10.2024. That the writ petitioner responded to the tender by submitting the same documents which was otherwise not accepted in the earlier tender process, and for which the writ petitioner had to file the writ petition. Therefore, the rejection of the technical bid of the writ petitioner by merely mentioning three Clauses of the ITB is arbitrary and was rightly interfered with by the learned Single Judge. He, therefore, submits that the impugned judgment and order do not call for any interference. On the other hand, the interference by the learned Judge to the impugned action of the official respondents being arbitrary, illegal and discriminatory amounting to violation of Article 14 of the Constitution of India is fully justified. [13.] The learned senior counsel further submits that in so far as the claim of the writ appellant that a Special Power of Attorney was executed by the proprietor in favour of Sri Raj Pao cannot be accepted as there is no mention of the same in the counter affidavit filed by the writ appellant as respondent No.5 in the writ petition. All that was mentioned is that Sri Raj Pao was authorized and the same is not sufficient for the said person to act on behalf of the proprietor as its agent. Moreover, the Special Power of Attorney has also not been registered. All that was mentioned is that Sri Raj Pao was authorized and the same is not sufficient for the said person to act on behalf of the proprietor as its agent. Moreover, the Special Power of Attorney has also not been registered. Therefore, the learned senior counsel submits that if the same had come to light during the pendency of the writ petition, Sri Raj Pao could not have been permitted to appear on behalf of the proprietor for want of locus standi. The learned senior counsel submits that the learned Single Judge has meticulously examined the writ petition and found the grievance projected to be legitimate. As such, the impugned judgment and order do not call for any interference. The learned senior counsel in support of his submissions relies upon the following authorities:- (i) Lokam Brothers & Ors. Vs. State of Arunachal Pradesh and others, (2015) 5 GLR 147; (ii) Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors., (1978) 1 SCC 405 ; and (iii) Banshidhar Construction Private Limited Vs. Bharat Coking Coal Limited & Ors. (2024) 10 SCC 273 . [14.] Mr. G. Tarak, learned Standing Counsel, Rural Works Department submits that he adopts the arguments advanced by Mr. D. Mazumdar, learned senior counsel for the writ appellant. He submits that the grounds for rejection of the writ petitioner in the technical bid have clearly been mentioned by providing the relevant Clauses of the ITB which were found to be attracted. He submits that there is no requirement for giving the details of the rejection when the ITB Clauses referred to clearly explains or elaborates the criteria. He submits that the work is in progress and that it would not be in the interest of public if the same is disrupted. He submits that at this stage, the work remaining is BMW and BT. He therefore, submits that the impugned judgment and order may not be interfered with by this Court. [15.] We have heard the submissions made by the learned counsel for the rival parties and have perused the materials available on record. Rejection of the technical bid of the writ petitioner led him into filing the writ petition. He therefore, submits that the impugned judgment and order may not be interfered with by this Court. [15.] We have heard the submissions made by the learned counsel for the rival parties and have perused the materials available on record. Rejection of the technical bid of the writ petitioner led him into filing the writ petition. The reason for finding the technical bid of the writ petitioner to be not responsive according to the official respondents is on account of the attraction of Clause 4.4B(b)(i), Clause-4.4(B)(b)(ii) and Clause-4.7(i) of the ITB. A perusal of Clasue- 4.4B(b)(i) of the ITB would go to show that the key equipment for road works and field testing laboratory are enlisted and separately for road works and for field testing laboratory. Likewise, Clause-4.4(B)(b)(ii) of the ITB provides for the number of technical personnel, qualification and experience, which are again sub-divided into the technical personnel required as per Clause-9.2 of the General Conditions of Contract, for field testing, laboratory and for routine maintenance. Further, Clause-4.7(i) of the ITB provides for disqualification on account of making misleading or false representation in the forms, statements, affidavits and attachments submitted in proof of the qualification required. The learned Single Judge in the impugned judgment has dealt with the same and observed that the impugned order does not specify or cite any details of invocation about the two Clauses and in the affidavit, it has been stated by the department that in the list of machineries, certain invoices of machineries were enclosed, which were said to be not genuine. The writ petitioner has denied the allegation and the learned Single Judge found that the reasons for rejection of the technical bid has not been disclosed although elaboration has been made in the affidavit. In this connection, reference has been made to the case of Commissioner of Police Vs. Gordhandas (Supra) and the case of Mohinder Singh Gill & Anr. (Supra) which basically provides that public orders publically made has to be examined on the basis of the reasons cited in the said order and cannot be improved by way of an affidavit. In this connection, reference has been made to the case of Commissioner of Police Vs. Gordhandas (Supra) and the case of Mohinder Singh Gill & Anr. (Supra) which basically provides that public orders publically made has to be examined on the basis of the reasons cited in the said order and cannot be improved by way of an affidavit. [16.] Learned Single Judge has also taken into account the fact that in a subsequent NIT dated 28.10.2024, the writ petitioner with the same set of documents pertaining to list of equipments and list of technical personnels submitted by it has been declared to be qualified in the technical evaluation. The argument that the same was of a subsequent period and not barring the department for the previous decision, was not accepted in view of the fact that the accepting authority was the same department. In other words, two conflicting opinions were taken by the department for the same set of documents submitted by the writ petitioner, which was therefore, not found to be acceptable. Further, in so far as non-disclosure of pendency of litigation by the writ petitioner, the learned Single Judge took a view that since the respondent No.5/writ appellant itself have not declared the pending litigation, such an argument would not be acceptable. [17.] Stand taken that the respondent No.5/writ appellant was only a respondent in the litigation, would not make any difference as there was no stipulation to declare whether the party was the petitioner or a respondent. The argument that the work has progressed to a great extent and for which reason Court should not interfere, was also not accepted on the ground that there were a number of judicial precedents by which it was held that when there is gross arbitrariness and unreasonableness in the impugned decision or the same is vitiated by mala-fide, Court can make judicial interference. Applying the same, the learned Single Judge found the manner in which the technical bid of the writ petitioner was rejected to be cryptic and not consistent. Such finding and conclusion in our considered view cannot be said to be erroneous and not consistent with the materials available on record. Applying the same, the learned Single Judge found the manner in which the technical bid of the writ petitioner was rejected to be cryptic and not consistent. Such finding and conclusion in our considered view cannot be said to be erroneous and not consistent with the materials available on record. [18.] The department in their counter affidavit filed against the writ petition sought to substantiate the grounds for rejection by pointing out the fact that some of the tax invoices for the machineries were found to be fake. However, the fact remains that in the subsequent tender process through NIT dated 28.10.2024 by which the writ petitioner was said to have presented the same set of documents, the tender of the writ petitioner was declared as qualified in the technical evaluation. This apart, the department has also sought to elaborate the grounds for rejection of the technical bid of the writ petitioner in paragraph-8 of the counter affidavit. Considering the same, the case of Mohinder Singh Gill & Anr. (Supra) is only found to be attracted. No doubt it is true that Court should invoke its discretionary powers under Article 226 of the Constitution of India with great caution and in furtherance of public interest and not merely to make out a legal point. However, when the tender has been rejected without assigning appropriate reasons and thereby violating Article 14 of the Constitution of India of the Tenderer, the Court would be justified in invoking its extra ordinary power as held by the Apex Court in Banshidhar Construction Private Ltd. (Supra). [19.] We therefore, do not find any reason to disagree with the findings of the learned Single Judge and accordingly dismiss the appeal. Further, in view of dismissal of the writ appeal, we do not find it necessary to examine the arguments made by the rival parties in the interlocutory application as the same would only be an academic discussion and moreover, when it was not an issue in the writ petition. The interlocutory application is therefore closed and disposed of. [20.] Any interim order passed earlier shall stand merged with this order.