Gauhati High Court
Page No.# 1/2 vs The State Of Assam And Ors on 4 March, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/21
GAHC010046212025
2025:GAU-AS:2271-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/74/2025
M/S BADRI RAI AND COMPANY
STATION ROAD, P.O. DULIAJAN -786602 DISTRICT - DIBRUGARH, ASSAM
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE
VERSUS
THE STATE OF ASSAM AND ORS
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF ASSAM,
ASSAM SECRETARIAT, DISPUR, GUWAHATI 05
2:THE DEPARTMENT OF PWD
GOVERNMENT OF ASSAM
REPRESENTED BY CHIEF ENGINEER
OFFICE OF THE CHIEF ENGINEER
PWD BUILDING
ASSAM
CHANDMARI
GUWAHATI 03
3:THE SPL CHIEF ENGINEER
DEPARTMENT OF PWD
P.W.D. BUILDING (HEALTH AND EDUCATION)ASSAM
CHANDMARI
GUWAHATI-3
4:TRIBENI CONSTRUCTION LTD
TRIBENI COMMERCIAL COMPLEX
2ND FLOOR
G.S. ROAD
ULUBARI
GUWAHATI
Page No.# 2/21
781001
ASSA
Advocate for the Petitioner : MR. K N CHOUDHURY, MR. S P SHARMA,K AHMED
Advocate for the Respondent : SC, PWD, FOR CAVEATOR,MR T DAS,MR. I CHOWDHURY SR
ADV
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 04.03.2025
(K.R. Surana, J)
Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Mr.
S.P. Sharma, learned counsel for the appellant. Also heard Mr. P. Sarmah,
learned Addl. Senior Govt. Advocate for respondent no.1; Mr. B. Gogoi, learned
standing counsel for PWD, representing respondent nos. 2 and 3; and Mr. I.
Chowdhury, learned senior counsel, assisted by Mr. T. Das, learned counsel for
respondent no.4.
2) By filing this intra-Court appeal, the appellant, who is the writ
petitioner has assailed the common judgment and order dated 28.02.2025,
passed by the learned Single Judge, thereby (i) allowing Review Petition No.
170/2024 – Tribeni Construction Ltd. v. M/s. Badri Rai And Company & 3 others
[arising out of W.P.(C) No. 4034/2024], and (ii) dismissing W.P.(C) 4789/2024 –
M/s. Badri Rai And Company v. The State of Assam & 3 others.
Preliminary issue on maintainability:
3) The learned senior counsel for the respondent no. 4 has raised
preliminary issue of maintainability of one memo of appeal although two
Page No.# 3/21separate and unconnected matters were disposed of by a common judgment
and order.
4) The learned senior counsel for the appellant has submitted that
upon reading of the judgment and order impugned in this intra-Court appeal, it
cannot be easily ascertained as to which part of the judgment is concerning the
review petition and which part of the impugned judgment and order concerns
the writ petition.
5) In this regard, the Court is of the considered opinion that review
petition arises in connection with W.P.(C) 4034/2024. The review petition was
filed by the respondent no. 4 in this appeal. Therefore, the appellant should
have been well advised to file separate appeals.
6) Nonetheless, instead of dismissing one appeal on technical
ground, the Court is of the considered opinion that it would meet the ends of
justice to direct the appellant to deposit additional prescribed court fees for
appeal in connection with the impugned common judgment and order passed in
W.P.(C) No. 4789/2024 within a period of 15 days from the date of this order,
failing which such court fees shall be recovered in accordance with law.
Submissions of the learned senior counsel for admission of the appeal and in
support of the prayer for interim relief:
7) The learned senior counsel for the appellant has submitted that
the review petition was filed by the respondent no. 4 on the ground that they
were not served with notice in connection with W.P.(C) No. 4034/2024 and by
the impugned order, their right was affected. To that extent, he would concede
to the order. However, when the order dated 29.08.2024, allowing W.P.(C) No.
4034/2024 was recalled, the direction contained in paragraph 29 of the said
Page No.# 4/21order, by which the appellant was granted liberty to file representation to the
Special Chief Engineer, Department of PWD, PWD Building (Health & Education),
Assam (respondent no.3) on or before 03.09.2024 and direction to the Technical
Bid Evaluation Committee to consider the case of the appellant and to
communicate the decision to the petitioner would be deemed to have been
recalled. Thus, the resultant minutes dated 09.09.2024, of the Technical Bid
Evaluation Committee, wherein it was decided that the appellant cannot be said
to have fulfilled the qualifying criteria contained in the bidding document and
further deciding that the appellant was not technically qualified and that its
financial bid shall remain unopened, could not have been saved. Accordingly, it
was submitted that the said part of the impugned judgment is hit by error
apparent on the face of the record and thus, liable to be interfered with.
8) It was further submitted that ideally, when the review petition
was allowed, the W.P.(C) No. 4034/2024, should have been posted for hearing
to as to give an opportunity to the respondent no. 4 of being heard.
9) It was also submitted that there are limited grounds on which
review can be entertained. The Court may correct a mistake, but in the name of
correction, the decision cannot be reversed by substitution of decision by
another one.
10) It was submitted that the learned Single Judge had committed
grave error in dismissing W.P.(C) No. 4789/2024 because if the technical bid of
the appellant was to be rejected, the PWD authorities ought to have rejected it
by way of a single decision. However, in this case, the technical bid of the
appellant was first rejected vide minutes dated 01.08.2024. However, after the
direction of this Court by order dated 29.08.2024, passed in W.P.(C) No.
4034/2024, the Technical Bid Evaluation Committee had rejected the bid of the
Page No.# 5/21appellant on a different ground. Thus, the manner in which the appellant was
technically disqualified, is unheard of and nor sustainable.
11) It was submitted that the bid of the appellant was technically
rejected by holding that the documents filed with the bid of the appellant did
not disclose that any work that was completed by the appellant was awarded in
his own name. However, there is nothing in the bid document wherein it is
prescribed that the works must have been completed as a principal contractor. It
was submitted that the documents showing that the works which were
completed by the appellant were awarded by the principal contractor to the
appellant in its own name. Moreover, the documents also demonstrated that the
nature of contract work completed by the appellant met the requisite
qualification. In other words, it was submitted that in the tender document,
there is no mention about principal contractor and sub-contractor, but the
requirement was to have completed the works as mentioned in the bid
document and in this regard, Note (viii) of Clause 2 of Section-I of the NIT and
Instructions to Bidder (ITB for short) was referred to. Hence, it was submitted
that the said aspect of the matter was neither visited nor considered by the
learned Single Judge.
12) Lastly, it was submitted that the respondent no. 4 had concealed
that their business conduct was under investigation by lodging of an FIR by the
Central Bureau of Investigation on 04.02.2023, where charge-sheet was
submitted against the managerial persons on 26.07.2024. Therefore, the
business of the PWD with the respondent no. 4 was liable to be terminated as
per the clauses of the BID document and ITB.
13) In support of his submissions, various documents contained in the
three volume paper-book were referred to. Moreover, the following cases were
Page No.# 6/21cited, viz., (i) Parison Devi v. Sumitri Devi, (1997) 8 SCC 715; (ii) Lily Thomas v.
Union of India, (2000) 6 SCC 224 ; (iii) Kerala State Electricity Board v. Hitech
Electrothermics & Hydropower Ltd. & Ors., (2005) 6 SCC 651; (iv) Inderchand
Jain (D) through L.Rs v. Motilal (D) through L.Rs, (2009) 14 SCC 663; (v) Jain
Studios v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501; (vi) Perry Kansagra v.
Smriti Madan Kansagra, (2019) 20 SCC 753; and (vii) S. Murali Sundaram v.
Respondetn: Jothibai Kannan & Ors., 2023 (3) SCALE 300:MANU/SC/0163/2023 .
Submissions of the learned senior counsel for the respondent no.4 and standing
counsel for respondent nos. 2 and 3:
14) Per contra, the learned senior counsel for the respondent no. 4
was submitted that when the learned Single Judge was hearing W.P.(C) No.
4034/2024, though it was recorded in paragraph 1 of the order dated
29.08.2024 that no one represents the respondent no. 4 in as much as no
notice was issued to the respondent no. 4, yet, the writ petition was disposed of
by granting liberty to the appellant to submit a representation and further
direction was issued to the Technical Bid Evaluation Committee to consider the
same. It is only when the said order was being implemented, the respondent
no. 4 came to know about it and the review application was filed to apprise this
Court that even if all the documents of the appellant was considered, as per the
relevant clauses of the bid document and the clauses of the ITB, the appellant
was still disqualified for bidding as the appellant did not submit any document
showing that it had work experience in “his own name”, which was a mandatory
requirement of the bid document. Accordingly, it was submitted that in the
absence of notice to the respondent no. 4, the correct state of affairs could not
be brought to the notice of the learned Single Judge, which had led the learned
Single Judge to proceed as if the experience of the appellant as a sub-contractor
Page No.# 7/21was indeed a qualification for the appellant to bid in response to the NIT, i.e. e-
tender for “Construction of Dedicated Training, Monitoring, Administrative
Centre “Swasthya Bhawan” (2B+G+8) Storeys at Sixmile, Guwahati (Assam)
involving Civil, MEP Works, External Development Works, Ancillary Buildings and
including Operation & Maintenance (O&M) – Tender No.
CEB(H&E)/MECH/7/2023/ 35.
15) It was also submitted that in course of the proceeding of Review
Petition No.170/2024, it was pointed out before the Court that W.P.(C) No.
4789/2024 involved the same tender, both the matters were tagged together
and taken up together for analogous disposal without any objection from the
appellant’s side. Accordingly, the learned Single Judge, having held that
pursuant to the said order dated 29.08.2024, by which W.P.(C) No. 4034/2024
was allowed, and in compliance of the order, not only the appellant had
submitted its representation, but the Technical Bid Evaluation Committee had
also taken its decision vide minutes dated 09.09.2024, which was assailed by
the appellant by filing W.P.(C) 4789/2024, dismissed the said writ petition on
merit as the respondent no. 4 could successfully demonstrate that the
appellants did not submit any document to show that they had completed any
required construction work, as a contractor “in its own name”, for which the
appellants were technically disqualified.
16) It was submitted that the bid/tender document did not contain
any clause that FIR lodged against a bidder must be disclosed for being
adjudged as a technically qualified bidder. Moreover, it was submitted that the
last date of submission of bid was 15.03.2024, while supplementary charge-
sheet allegedly implicating the respondent no. 4 was submitted before the
learned trial court only on 26.07.2024.
Page No.# 8/21
17) In support of his submission, the learned senior counsel for the
respondent no. 4 has cited the following cases, viz., (i) Tractor & Farm
Equipment Ltd. v. Secretary to the Govt. of Assam, Dept. of Agriculture & Ors.,
2004 (1) GLT 117, (ii) Silppi Constructions Contractors v. Union of India, (2020)
16 SCC 489, and (iii) N.G. Projects Ltd. v. Vinod Kr. Jain, (2022) 6 SCC 127.
18) Per contra, the learned standing counsel for the PWD has adopted
the submission made by the learned senior counsel for respondent nos. 2 and 3,
and has further submitted that the contract work in question is sponsored by
Japan International Cooperation Agency (JICA for short), which is foreign aid to
the project and though the bid was opened on 15.03.2024, contract could not
be awarded till date and therefore, any delay in implementation of the project
would put to risk the project funding by JICA. It is submitted that the building
project, when completed, would house all offices of the State’s Health
Department, National Health Mission, etc. and therefore, it is a project of great
public importance.
19) In support of his submission, the learned standing counsel for the
Health Department has cited the following cases, viz., (i) Jagdish Mandal v.
State of Orissa, (2007) 14 SCC 517, (ii) Afcons Infrastructure Ltd. v. Nagpur
Metro Rail Corporation Ltd. & Another, (2016) 16 SCC 818 , (iii) Silppi
Constructions Contractors v. Union of India & Anr., (2020) 16 SCC 489 , and (iv)
N.G. Projects Ltd. v. Vinod Kr. Jain, (2022) 6 SCC 127.
Case of the appellant:
20) The case of the appellant in W.P.(C) No. 4034/2024, in brief, was
that the appellant had substantially complied with the conditions of being an
eligible bidder. But from the minutes of Technical Bid Evaluation Committee
Page No.# 9/21meeting held on 03.08.2024, without affording any opportunity to the appellant,
disqualified the appellants from participating in the bid. On 05.08.2024, the
Price Bid of the remaining three bidders was opened. The appellants claimed
that their price bid was substantially lower than other three bidders. Accordingly,
W.P.(C) No. 4034/2024 was filed.
21) Pursuant to the order dated 29.08.2024, passed in W.P.(C) No.
4034/2024, the appellant had submitted its representation dated 02.09.2024.
The Technical Bid Evaluation Committee, by its minutes dated 09.09.2024, had
rejected the bid of the appellant, inter-alia, on the ground that (i) the appellant
should have completed similar works in its own name as clause 2 of the
qualification criteria stipulates that and that it did not provide for experience in
the form of a sub-contractor; and (ii) the appellant should have completed at
least one construction of basement work in its own name and not as a sub-
contractor. Accordingly, the appellant was held technically not qualified.
22) The subsequent decision vide aforesaid minutes dated
09.09.2024, was put to challenge by the appellant by filing W.P.(C) No.
4789/2024.
Affidavit-in-opposition by the PWD; affidavit-in-opposition by respondent no.4;
two affidavits-in-reply by the appellant in the writ petition:
23) The Court is of the considered opinion that no point would be
served in extracting the contents of the hereinabove referred affidavits. It would
suffice to mention that the respondent nos. 2 to 4 had projected that the bid
document contained stipulation that the bidder must show completion of similar
works done in its own name and not as a sub-contractor. It would also suffice to
mention that the appellants had projected in its affidavits-in-reply that the
Page No.# 10/21similar construction works done by them qualified them to be a technically
responsive bidder.
Decision and Reasons of the learned Single Judge:
24) As indicated hereinbefore, the learned Single Judge had initially
allowed W.P.(C) No. 4034/2024, vide order dated 29.08.2024, by giving liberty
to the appellant to submit its representation which was submitted by the
appellant. Moreover, as per directions issued vide order dated 29.08.2024, the
Technical Bid Evaluation Committee had held its meeting on 09.09.2024, and
held the appellant to be technically disqualified for reasons as mentioned in
paragraph 21 above.
25) However, in connection with Review Petition No. 170/2024, the
learned Single Judge held vide impugned judgment and order dated
28.02.2025, passed in common in Review Petition No. 170/2024 and W.P.(C)
4789/2024, that notice was not issued or served to the respondent no. 4 and
therefore, the review petition was allowed and recalled the order dated
29.08.2024, allowing W.P.(C) No. 4034/2024. However, having noticed that the
said order dated 29.08.2024, was implemented and the Technical Bid Evaluation
Committee by meeting minutes dated 09.09.2024, had held the appellant to be
technically disqualified, dismissed W.P.(C) No. 4789/2024.
26) In the decision making process, the learned Single Judge is found
to have meticulously dealt with all the issues raised before him.
27) The Court has carefully examined the materials available on
record and also considered the submissions advanced on behalf of the appellant
and the respondent nos. 2, 3 and 4. The cases cited at the Bar has received due
consideration.
Page No.# 11/21
28) The decision in connection with the Review Petition No.170/2024,
was passed after considering the decision of the Supreme Court of India in the
case of (i) Parison Devi v. Sumitri Devi, (1997) 8 SCC 715 , (ii) Lily Thomas v.
Union of India, 92000) 6 SCC 224, (iii) Kerala State Electricity Board v. Hitech
Electrothermics & Hydropower Ltd. & Ors., 92005) 6 SCC 651 .
29) The learned senior counsel for the appellant has not even
ventured to convince the Court that when the order dated 29.08.2024, by which
W.P.(C) No. 4034/2024 was allowed, notice was issued and served on the
respondent no.4. Therefore, we concur with the decision by the learned Single
Judge to recall the order dated 29.08.2024, by which W.P.(C) No. 4034/2024
was allowed.
30) The disposal of W.P.(C) No. 4034/2024, without service of notice
is a mistake which a patent error which ex facie appears on the face of record.
Therefore, there is no infirmity in that part of the impugned common judgment
and order dated 28.02.2025, by which Review Petition No. 170/2024 was
allowed and the order dated 29.08.2024, allowing W.P.(C) No. 4034/2024 was
recalled. The submissions to the contrary by the learned senior counsel for the
appellants are hereby repelled as it is not acceptable for the Courts to decide a
matter where rights of a respondent is materially affected, without issuance of
notice on the said concerned party.
31) In this regard, the Court is of the considered opinion that all
courts in the Country including this Court would have inherent power to correct
such fundamental defect which has crept in an order when it is pointed out
before the Court that a lis was decided by it without issuing notice on the
respondent who might be affected by the final order. None of the cases cited by
the learned senior counsel for the appellants has held to negate such inherent
Page No.# 12/21
power of the Court and therefore, there is no necessity for discussing the cases
submitted by the learned senior counsel for the appellant and to burden this
order with avoidable volume.
32) Thus, two following points of determination arise for decision in
this intra-court appeal:-
i. Whether the learned Single Judge had committed any error
in dismissing W.P.(C) No. 4789/2024; andii. Whether by recalling the order dated 29.08.2024, passed in
W.P.(C) No. 4034/2024, the directions contained therein to permit
the appellant to submit a representation and to the Technical Bid
Evaluation Committee to take a decision thereon, which had
culminated in meeting minutes dated 09.09.2024, to come on
record becomes redundant and non est in the eyes of law and
rendered the minutes dated 09.09.2024 as redundant.
33) The unhesitant answers to both the said points are emphatically
in the negative and against the appellants. The reasons therefor are given
hereunder.
34) The Court is unable to accept the submissions by the learned
senior counsel for the appellant that this is a case where the learned Single
Judge, in exercise of review jurisdiction had taken a decision contrary to the
view taken vide order dated 29.08.2024, passed in W.P.(C) No. 4034/2024. The
learned Single Judge had only recalled the said order. However, essentially by
dismissing W.P.(C) No. 4789/2024, the challenge made by the appellant to the
minutes dated 09.09.2024, by the Technical Bid Evaluation Committee was
dismissed. There is no denying of the fact that there are two distinct
Page No.# 13/21compartmental parts in the common order. One relates to review. The other
relates to challenge made in W.P.(C) 4789/2024.
35) The Court is unable to accept that after the order dated
29.08.2024, passed in W.P.(C) No. 4034/2024, has been acted upon and
culminated by decision taken in minutes dated 09.09.2024 by the Technical Bid
Evaluation Committee, it could be automatically undone when the order dated
29.08.2024, passed in W.P.(C) No. 4034/2024 is recalled. None of the case law
cited by the learned senior counsel for the appellant lays down such a legal
preposition.
36) It would be relevant to refer to the case of S. Murali Sundaram
(supra), cited by the learned senior counsel for the appellant. In that case, a
survey report was the matter of consideration and in the said context, it was
held by the Supreme Court of India that once the survey report fell for
consideration before the High Court while deciding the main writ petition,
thereafter the same could not have been considered again by the High Court
while deciding the review petition. There is no quarrel with the said well settled
principle of law. But on facts, the said decision is distinguishable from the facts
of this case because, while deciding the review petition, the learned Single
Judge had not re-decided on any matter. As the parties were duly represented
when Review Petition No. 170/2024 and W.P.(C) No. 4789/2024 were both
heard together, the learned Single Judge, deemed it fit to dismiss the writ
petition, where minutes dated 09.09.2024 was assailed.
37) It is not the projected case of the appellants that any prayer was
made to adjourn the hearing in W.P.(C) No. 4789/2024 till review petition was
decided. Rather, all sides had duly participated in the hearing. Therefore, after
the result of hearing turned out to be against the appellant, it not permissible
Page No.# 14/21
for the appellant to turn around and assail the decision in W.P.(C) No.
4789/2024, by projecting as if by recalling the order dated 29.08.2024, passed
in W.P.(C) No. 4034/2024, directions contained therein, which had culminated in
Minutes dated 09.09.2024 by the Technical Bid Evaluation Committee would be
rendered non est or redundant in the eye of law.
38) Thus, the challenge to the Minutes dated 09.09.2024 by the
Technical Bid Evaluation Committee, being an independent challenge by the
appellant by filing W.P.(C) No. 4789/2024, is found to have been dealt with
separately by the learned Single Judge, independent of and unconnected with
the decision in Review Petition No. 170/2024.
39) Accordingly, the point no. (ii) in paragraph 32 above is answered
by holding that by recalling the order dated 29.08.2024, passed in W.P.(C) No.
4034/2024, the directions contained therein to permit the appellant to submit a
representation and to the Technical Bid Evaluation Committee to take a decision
thereon, which had culminated in the minutes of meeting dated 09.09.2024 of
the Technical Bid Evaluation Committee to come on record did not become
redundant and non est in the eyes of law, when the minutes dated 09.09.2024
was separately assailed in W.P.(C) No. 4789/2024. That part of the order dated
29.08.2024 had been acted upon. Therefore, the resultant minutes dated
09.09.2024 cannot be held to be illegal. The recalling of the order dated
29.08.2024 would not render the minutes dated 09.09.2024 illegal or void.
40) The point of determination no. (i) is taken up now. 41) The learned Single Judge had held, amongst others, that the
tendering authority, who had authored the tender documents are the best judge
for interpreting the tender documents. In arriving at the said decision, the
Page No.# 15/21
learned Single Judge has referred to the decision of the Supreme Court of India
in the case of (i) Ramanna Dayaram Shetty v. The International Airport
Authority of India & Ors., (1979) 3 SCC 489 , (ii) Vidharbha Irrigation
Development Corporation & Ors., v. Anuj Kumar Agarwala & Ors., (2020) 17
SCC 577, (iii) G.J. Fernandez v. State of Karnataka & Ors., (1990) 2 SCC 488 ,
(iv) Silppi Constructions Contractors v. Union of India & Ors., (2020) 16 SCC
489, (v) M/s. N.G. Projects Ltd. v. M/s. Vinod Kumar Jain, (2022) 6 SCC 127.
The learned senior counsel for the appellant has not been able to convince the
Court as to why and how the reliance on ratio laid down in the said cases by the
learned Single Judge was erroneous. Thus, no point would be served in
extracting the contents of 32 to 40 of the impugned decision, where these cases
have been elaborately discussed. We fully concur with the observations made by
the learned Single Judge, based on the well settled legal propositions as laid
down in these leading judgments.
42) The Court is also inclined to hold that no illegality or perversity
was committed by the learned Single Judge in refusing to interpret the bidding
document as regards the clause prescribing “bidder” “in his own name”, which is
indeed technical and should be best left to the decision of the concerned author
of the ITT/NIT. In this regard, the reliance by the learned Single Judge in the
case of JARPAL JPW-DMC v. Union of India, (2024) 0 Supreme(Gau) 1562 , also
appears to be appropriate, where again it has been held that the authority
inviting tender is the best interpreter of the tender.
43) The financial bid of the appellant was never opened. Therefore, it
is immaterial whether the price quoted by the appellant was lower than the
three other bidders. The fact that the appellant was adjudged to be technically
non-responsive vide minutes dated 09.09.2024, is sufficient for the tendering
Page No.# 16/21
authority to refuse to open the financial bid of the appellant. Therefore, the
learned Single Judge is found to have rightly placed reliance on the decision of
the Supreme Court of India in the case of Air India Limited v. Cochin
International Airport Ltd. (2000) 2 SCC 617, wherein it has been held by the
Supreme Court of India that price need not always be the sole criteria for
awarding contracts.
44) Moreover, in the case of Maa Binda Express Carrier & Anr. Vs.
North East Frontier Railway & Ors., (2014) 3 SCC 760 , it was held by the
Supreme Court of India that bidders participating in the tender process cannot
insist that their bids/ tenders should be accepted simply because a bid is highest
or lowest.
45) Reference may also be made to the case of State of Tripura v.
Ramendra Nath Dey, (2000) 3 GLT 214: (2001) 1 GLR 54: (2000) 0
Supreme(Gau) 280, wherein this Court had held that the judgment of the Single
Judge should be set aside or quashed only when there is patent error on the
face of the record or the judgment is against the established or well settled
principle of law.
46) In the case of Starline Agency v. Nabajit Das, 2011 (1) GLT 710:
(2011) 5 GLR 186: (2011) 0 Supreme(Gau) 149 , this Court has held that if two
reasonable and logical views are possible, the view adopted by the Single Judge
should normally be allowed to prevail. In this regard, we may also refer to the
decision of this Court in the case of Tractor & Farm Equipment Ltd. v. Secretary
to the Govt. of Assam, Dept. of Agriculture, 2004 (1) GLT 117, which was
followed in the case of North Eastern Regional Institute of Science and
Technology v. Prabhanjan Kumar Pranav, (2018) 5 GLR 572: (2017) 0
Supreme(Gau) 1509.
Page No.# 17/21
47) In the case of Assam State Electricity Board V. Sri Surya Kanta
Roy, (1994) 1 GLR 383: (1993) 0 Supreme(Gau) 190 , this Court has held that
the appellate Court will not interfere with the discretion of the court of first
instance and substitute its own discretion except where the discretion has been
shown to have been exercised arbitrarily or capriciously or perversity or where
the court has ignored the settled principles of law.
48) In the light of the discussions above, the Court is of the well
considered opinion that this is not a case where the learned Single Judge has
failed to appreciate any pleadings or documents produced before the Court. In
spite of lengthy submissions by the learned senior counsel for the appellants, it
would not be demonstrated that the discretion exercised by the learned Single
Judge was hit by perversity or patent illegality. The decision of the learned
Single Judge is not shown to be arbitrary or capricious or that any well settled
principles of law was ignored. Thus, the impugned judgment and order is not
found to suffer from any patent illegality.
49) Thus, the appellant has failed to demonstrate that the learned
Single Judge has committed any perversity in dismissing W.P.(C) 4789/2024,
while allowing Review Petition No. 170/2024.
50) Thus, this Appellate Bench is also of the considered opinion that
the disqualification of the appellant vide Minutes of Meeting held on 09.09.2024,
by the Technical Bid Evaluation Committee was rightly not interfered with by the
learned Single Judge.
51) In the case of Sam Built Well (P) Ltd. Vs. Deepak Builders, (2018)
2 SCC 176, the Supreme Court of India has held that not having found mala
fides or perversity in the technical experts report, the principle of judicial
Page No.# 18/21
restraint kicks in and any appreciation by the Court itself of technical evaluation,
best left to technical experts, would be outside its ken. In the said case, it was
also held that the learned Single Judge was correct in his reliance on the
experts’ reports and the Division Bench, in setting aside the aforesaid judgment,
has clearly gone outside the bounds of judicial review. This legal proposition is
applicable in this case.
52) It would be apposite to refer to the decision of the Supreme Court
of India in the case of N. Ramachandra Reddy v. State of Telengana, (2020) 16
SCC 478: AIR 2019 SC 4182, wherein it was held that while considering intra-
court appeal, unless the appellate Bench concludes that the findings of Single
Judge is perverse, it shall not disturb the same.
53) In the case of Central Coalfields Ltd. Vs. SLL-SML (Joint Venture),
(2016) 8 SCC 622, the Supreme Court of India has held that whether a term of
the NIT is essential or not is a decision taken by the employer which should be
respected. It was further held that even if the term is essential, the employer
has the inherent authority to deviate from it provided deviation is made
applicable to all bidders and potential bidders as held in Ramanna Dayaram
Shetty (supra). However, if the term is held by the employer to be ancillary or
subsidiary, even that decision should be respected. It was held that the
lawfulness of the decision can be questioned on very limited grounds and the
soundness of the decision cannot be questioned, otherwise the Court would be
taking over the function of tender issuing authority, which it cannot.
54) In the case of Jagdish Mandal Vs. State of Orissa, (2007) 14 SCC
517, it was held by the Supreme Court of India that evaluating tenders and
awarding contracts are essentially commercial functions and thus, the principles
of equity and natural justice stay at a distance. If the decision relating to award
Page No.# 19/21
of contract is bona fide and is in public interest, Courts will not, in exercise of
power of judicial review, interfere even if a procedural aberration or error in
assessment or prejudice to a tenderer, is made out. The power of judicial review
will not be permitted to be invoked to protect private interest at the cost of
public interest, or to decide contractual disputes. The tenderer or contractor
with a grievance can always seek damages in a civil court. Attempts by
unsuccessful tenderers with imaginary grievances, wounded pride and business
rivalry, to make mountains out of molehills of some technical/procedural
violation or some prejudice to self, and persuade Courts to interfere by
exercising power of judicial review, should be resisted. Such interferences,
either interim or final, may hold up public works for years, or delay relief and
succor to thousands and millions and may increase the project cost manifold.
55) In the case of Jagdish Mandal (supra), it was further held that a
Court, before interfering in tender or contractual matters in exercise of power of
judicial review, should pose to itself the following questions: (i) Whether the
process adopted or decision made by the authority is mala fide or intended to
favour someone; or (ii) Whether the process adopted or decision made is so
arbitrary and irrational that the court can say “the decision is such that no
responsible authority acting reasonably and in accordance with relevant law
could have reached”; and (iii) whether public interest is affected? It was held
that if the answers are in the negative, there should be no interference under
Article 226 of the Constitution of India. Similar view was also expressed by the
Supreme Court of India in the case of National High Speed Rail Corporation Ltd.
v. Montecarlo Limited & Anr., (2022) 6 SCC 401.
56) In respect of this contract, the learned standing counsel for the
respondent nos. 2 and 3 had submitted that the fund for the project is financed
Page No.# 20/21
by JICA. Therefore, public interest is of paramount importance in this case as
any delay in implementation of the construction project may jeopardize public
interest.
57) In light of the discussions above, the Court is inclined to hold that
the appellant has failed to make out a case for interference with the common
judgment and order dated 28.02.2025, passed by the learned Single Judge,
thereby (i) allowing Review Petition No. 170/2024 – Tribeni Construction Ltd. v.
M/s. Badri Rai And Company & 3 others [arising out of W.P.(C) No. 4034/2024],
and (ii) dismissing W.P.(C) 4789/2024 – M/s. Badri Rai And Company v. The
State of Assam & 3 others.
58) The decision making process which had culminated in minutes
dated 09.09.2024, of the Technical Bid Evaluation Committee, was triggered by
order dated 29.08.2024, allowing W.P.(C) No. 4034/2024. The decision was
taken before W.P.(C) No. 4789/2024 was filed. Therefore, the effect of order
dated 29.08.2024, which had culminated in minutes dated 09.09.2024, cannot
be undone even if the said order dated 29.08.2024 was recalled.
59) In light of the various cases discussed herein before, the cases
cited by the learned senior counsel for the appellants would have no application
under the distinguishable facts of this case and therefore, this judgment and
order is not being burdened with elaborate discussion thereon.
60) Resultantly, this appeal fails and is hereby dismissed at the
admission stage without issuance of notice on the respondents.
61) In the case of Raghubir Singh v. State of Rajasthan, (2019) 17
SCC 408, the Supreme Court of India has held that it was incumbent upon
Division Bench to deal with all issues urged and record its finding. Therefore,
Page No.# 21/21
before parting with the records, it is clarified that despite the fact that the
present appeal has not been admitted for hearing, all the points urged by the
learned senior counsel for the appellant had to be considered.
62) In terms of observations made in paragraph 6 above, the
appellant shall deposit the requisite Court fees, failing which consequences, as
stated, would follow.
JUDGE JUDGE Comparing Assistant
[ad_1]
Source link