Gauhati High Court
M/S Purvanchal Communication Pvt. Ltd vs The State Of Assam And 5 Ors on 18 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 22
Author: P.K.Deka
Bench: Prasanta Kumar Deka
Page No.# 1/15
GAHC010257702019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 7769/2019
1:M/S PURVANCHAL COMMUNICATION PVT. LTD.
4TH FLOOR, BORDOICHILLA BHAWAN (K), ABOVE SAMSUNG PLAZA, G.S.
ROAD, BHANGAGARH, GUWAHATI- 781005, REPRESENTED BY ITS
AUTHORIZED REPRESENTATIVE, SRI KHAJAN CHAND JINDAL.
VERSUS
1:THE STATE OF ASSAM AND 5 ORS.
REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF
ASSAM, FOOD, CIVIL SUPPLY AND CONSUMER AFFAIRS DEPARTMENT,
DISPUR, GUWAHATI- 781006.
2:THE DIRECTOR OF FOOD
CIVIL SUPPLY AND CONSUMER AFFAIRS
DIRECTORATE OF FCS AND CA
BHANGAGARH
GUWAHATI- 781005.
3:THE DEPUTY COMMISSIONER
NALBARI
DISTRICT- NALBARI
ASSAM.
4:THE TENDER COMMITTEE
CONSTITUTED FOR SELECTION AND APPOINTMENT OF HANDLING AND
TRANSPORT CONTRACTOR FOR TRANSPORTATION OF FOOD GRAINS
UNDER NFSA 2013 OF NALBARI DISTRICT PRESIDED BY THE DEPUTY
COMMISSIONER
NALBARI
ASSAM.
Page No.# 2/15
5:THE DEPUTY DIRECTOR
FOOD
CIVIL SUPPLIES AND CONSUMER AFFAIRS NALBARI
DIST- NALBARI
ASSAM.
6:M/S A R ENTERPRISE
INDUSTRIAL ESTATE
DICC COMPLEX
GOPAL BAZAR
NALBARI
ASSAM- 781353
REPRESENTED BY ITS PROPRIETOR
SRI RUPESH SINGHANIA
Advocate for the Petitioner : MR. R DUBEY
Advocate for the Respondent : MS. M BHATTACHARJEE(GA, ASSAM)
BEFORE Hon'ble MR. JUSTICE prasanta kumar deka ADVOCATES For the Petitioner : Mr. R. Dubey. Advocate.
For the respondent : Mr. S. Dutta. Sr. Advocate.
: Ms. M. Bhattacharjee,
Govt. Advocate.
Date of hearing : 23.01.2020
Date of judgment : 18.02.2020
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JUDGMENT & ORDER
(CAV)
(P.K.Deka, J)
18.02.2020
Heard Mr. R. Dubey, the learned counsel for the petitioner, Mr. S. Dutta, the learned Senior Counsel assisted by Mr. U. Chaudhury, the learned counsel for the private respondent No. 6 and Ms. M. Bhattacharjee, the learned Additional Senior Government Advocate, Assam for the State respondents.
2. I have considered the submissions made by the learned counsel. The Notice inviting Tender (NIT) No. NS.75/2013/NFSA-TC/334 dated 23.09.2019 was issued by the Deputy Commissioner, Nalbari the respondent No. 3 inviting e-tender for transportation of food grains under NFSA 2013. The e-tender was 2(two) tier system comprising of Technical and Financial bids. For the technical bid the employer stipulated certain criteria to be fulfilled supported by documents. Clause 19 of terms and conditions stipulates as follows:-
"Clause 19: The Technical bid shall consist of all required papers in NIT, scan copy of Earnest Money Deposit to be uploaded with Technical bid. The financial bid shall consist of rate quote in the form of BOQ. The rate should not be given in technical envelop otherwise it will lead to rejection of the technical bid".
Thus from the said clause it is the stipulation that the technical bid must be supported by all the documents.
3. There were in all 5(five) bidders including the petitioner and the respondent No. 6. The technical bid was opened on 04.10.2019 by the Committee formed by the respondent No.3. The said technical bid of the bidders were evaluated as follows:-
"After threadbare discussions, the following decisions were made.
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Point No. Decisions Taken
1. After opening of Technical Bid as on 1 st October, 2019 at 4:00 PM through online portal https://assamtenders.gov.in, it is seen that the following 5(five) nos of bidders have submitted bids. Bids were opended in presence of the representatives of the following parties as on 3 rd October, 2019 at 3:00 PM in the conference Hall of the Deputy Commissioner's Nalbari.
1. M/S Pooja Associates ( Contract Division), Kamarpatty, Guwahati.
2. M/S A. R. Enterprises, Nalbari.
3. M/S Town Store, Nalbari.
4. M/S Arihaht Trading Co, Nalbari.
5. M/S Purvanchal Communication Pvt. Ltd., Ulubari, Guwahati.
2. All 5 (five) nos of bidders have submitted the Earnest Money Deposit of Rs. 9,00,000/- (Rupees Nine Lakhs) only each through Demand Draft and Tender Fee of Rs.2,000/- (Rupees Two thousands) only each.
3. After carefully checking the relevant papers submitted in connection with the Technical Bids, the following points or deviations were observed which were not conformity with the Technical Bid's requirement.
1. M/S Pooja Associates (Contract Division), Kamarpatty, Guwahati:- The Trade Licence which was issued by the GMC, Guwahati in favour of M/S Pooja Associates (Contract Division), Kamarpatty, Guwahati revealed that the party has deposited yearly taxes @ Rs.1750/- to GMC, Guwahati where tax amount of Rs.1750/- was not as per norms as their Annual Turnover is more than Rs.20,00,000/- (Rupees twenty Lakhs) only and hence rejected.
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2. M/S A. R. Enterprises, Nalbari: The relevant papers submitted with Technical Bid were found in order. No major deviations were observed.
3. M/S Town Store, Nalbari: It failed to submit the Contract Registration and EPF Registration.
4. M/S Arihaht Trading Co, Nalbari: It also failed to submit the Contract Registration and EPF Registration.
5. M/S Purvanchal Communication Pvt. Ltd., Ulubari, Guwahati:
Self attestation on the photograph of the Technical Bid was not made. In respect of Firm Registration and Contract Registration, the bidder submitted the same document i.e. Certificate of Incorporation. EPF Registration is not submitted.
4. On the basis of submission of relevant papers with the technical Bid, the papers submitted by M/S AR Enterprise, Nalbari wee found in order. Therefore, the Tender Committee unanimously decided that M/S AR Enterprise, Nalbari qualified for the Technical Bid for the FY 2019-20. The other 4(four) nos of Bidders are rejected on aforementioned reasons at Point No. 3.
5. Financial Bid will be opened on 15.10.2019 at 11:00 AM.
The meeting ended with vote of thanks from the chair."
From the said evaluation it is seen that the petitioner was deficient in providing:- (a) self attestation on the photograph attached in the Technical Bid; (b) in respect of firm registration and contract registration the petitioner submitted the same document i.e. Certificate of Incorporation; (c)Employees Provident Fund (EPF) registration was not submitted. On the other hand, in the Technical Bid of the respondent No. 6 no major deviations were observed.
4. Mr. Dubey submits that self attestation of the photograph is not at all mandatory and only a requirement directory in nature. The agent of the petitioner put signatures on all the pages of the Technical Bid. The requirement of contract registration is vague as nowhere in Page No.# 6/15 the tender document it specified as to what nature of registration the petitioner or the bidders were required to submit. The petitioner is a transport contractor under the Food Corporation of India and the said authority does not issue any contract registration. As per him, there is no requirement of registration of handling and transportation contract by any agencies in Assam unlike the PWD contractors. In absence of such definite instruction it is unintelligible as to how the respondent No.3 accepted the registration of the respondent No.6 under the Director of Industries showing the respondent No.6 to be a manufacturer than a transporter. Therefore, the requirement of contract registration is vague as stipulated in the tender conditions and rejection of the bid of the petitioner on that count is illegal.
5. Mr. Dubey further submits that the third ground of rejection for non submission of EPF registration is also illegal. The petitioner has the EPF registration and in support of the same the petitioner submitted a copy of the EPF challan which indicates the EPF registration. Therefore, the rejection of the technical bid on such ground is arbitrary and illegal which requires reconsideration.
6. Mr. Dubey submits that though the bid of the respondent No. 6 was held to be technically valid in all respects but the decision making process on the basis of evaluation of the documents of respondent No. 6 applied is wrong inasmuch as it had fatal defects which he cited as follows: (i) respondent No. 6 did not submit 3(three) years Turnover Audited Statements by the Chartered Account as required per Clause 26; (ii) the purported solvency certificate does not speak of the financial capability of the respondent No. 6 to execute the volume of work; (iii) no Annual Turnover certificate of Rs.12 crores was submitted; (iv) no experience certificate of handling transport contract was submitted except a certificate from M/S Om Shanti Transport indicating association of the petitioner for last 5 years with it; (v) no registration certificate from Director of Industries was submitted but only a copy of application for registration was submitted; (vi) no details of the vehicles with GPS system were submitted.
Inspite of so many discrepancies the respondent No. 6 was held to be the only technically qualified bidder rejecting the bids of other bidders and there is arbitrariness with malafide intention of the respondent No. 3 and the tender evaluation committee in the Page No.# 7/15 decision making process which requires interference.
7. The respondent No. 6 filed the affidavit-in-opposition supporting the deficiencies on the part of the petitioner in its technical bid as observed by the tender evaluation committee. On the other hand as against the pleadings of the petitioner in respect of deficiencies of the respondent No. 6 it is stated in the affidavit that it submitted: (a) the audited balance sheet for last 3 years along with the tender; (b) the solvency certificate to the satisfaction of the tendering authority; (c) certificate regarding Annual Turnover of Rs. 12 crores; (d) handling of transport business certificate and necessary GST registration; (e) certificate of Director of Industries; (f) trade license issued by the Gaon Panchayat as the establishment falls within Gaon Panchayat area.
8. Mr. Dutta, the learned Senior Counsel supporting the stand taken in the affidavit-in- opposition on behalf of respondent No. 6 submits that the petitioner admittedly failed to submit the EPF registration, contract registration and attestation of the photograph which are requisite criteria for scrutiny of the technical bid of the bidders. Referring the minutes of the meeting of the Tender Evaluation Committee it is his submission that not only the petitioner, but two other bidders' viz M/S Town Store, Nalbari and M/S Arihant Trading Co, Nalbari technical bids were rejected for non submission of contract and EPF registration. Further refuting the submission of Mr. Dubey that attestation of photograph was merely directory, Mr. Dutta submits that such submission cannot be accepted as the same was required with a definite purpose and it is not for the court to enter into as to for what purpose the same was rejected.
9. Mr. Dutta referring Clause-19 of the tender terms submits that each of the documents are mandatorily required to be submitted. Even if there is EPF registration in favour of the petitioner as submitted by Mr. Dubey, non submission of the same itself is fatal. The EPF challan was not required to be submitted for the technical bid. It is also the submission of Mr. Dutta that if at all there were any vague terms stipulated in the tender conditions a duty was cast upon the petitioner to get it clarified before participation but without doing so as submitted by Mr. Dubey, that the nature of contract registration required was not specified in the tender documents clearly cannot be raised now once the petitioner had already Page No.# 8/15 participated in the tender process.
It is the contention further the petitioner once failed to qualify overcoming the criteria fixed for acceptance of its technical bid, it no longer maintains the locus to point out the deficiencies or shortcomings of the successful bidder whose qualifying criteria were accepted by the Tender Evaluation Committee. The requirement of the documents specified in the tender conditions are with an intent for satisfaction of the employer which requires no explanation at the time of scrutiny. The Constitutional court in the guise of judicial review cannot set aside the decision arrived at by the Tender Evaluation Committee and replace the same by the court. In support of the contention Mr. Dutta relies the following decisions:- (i) Bimal Das Vs- Assam Fisheries Development corporation and Ors decided on 21.12.2010 in WP(C) No. 4717 of 2010 passed by the Hon'ble Gauhati High Court. (ii) Macrocosm Builders (M/S) & ANR Vs- State of Assam & Ors reported in 2016(4) GLT 312, (iii) Elite computers & Communications Pvt. Ltd. Vs- State of Assam & Ors, reported in 2017 (3) GLT 634, (iv) Puravankara Projects Ltd. Vs- Hotel Venus International and Others reported in (2007) 10 SCC 33, (v) Central Coalfields Limited and Anr Vs- SLL-SML (Joint Venture Consortium) and others reported in (2016) 8 SCC 622, (vi) Glodyne Technoserve Limited Vs- State of Madhya Pradesh and others reported in (2011) 5 SCC 103, (vii) G. J. Fernandez Vs. State of Karnataka and Others reported in (1990) 2 SCC 488, (viii) Kerala Hotel and Restaurant Association and Others Vs.- State of Kerala and Others reported in (1990) 2 SCC 502 and (ix) Tata Cellular Vs- Union of India reported in (1994) 6 SCC
651. Ms. Bhattacharjee supports the submission of Mr. Dutta and also produced the relevant records of the tender process.
10. The submission and counter submission of the learned counsel are confined to the one stated above. The writ petitioner sought for the relief of setting aside and quashing the minutes of the meeting of the selection committee deciding to reject the technical bid of the petitioner and to accept the one of the respondent No. 6. The learned counsel for the petitioner in support of the said relief made specific allegations of deficiencies on the part of the respondent No. 6 which are denied by the it in the affidavit-in-opposition. In order to Page No.# 9/15 examine the issues by the court, the records of the said tender process was called for and perused.
11. Here it would be relevant to circumscribe the scope of judicial review of the decision making process of a writ court in a tender process and to that effect it would be proper to take note of the ratio laid down by the Apex Court in Jagadish Mandal Vs- State of Orissa, reported in (2007)14 SCC 517. The issue in the said case was in respect of the scope of judicial review by the High Court in a writ petition filed by an unsuccessful tenderer whether there was any material irregularity in the decision making process or whether the decision of the committee and consequential rejection of the lowest tenderer's tender was irrational, unreasonable or arbitrary. It was held as follows:
"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound". When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award 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 succour to thousands and millions and may increase the project cost manifold. Therefore, 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 Whether the process adopted or decision made is so arbitrary and irrational that the court can say: "That decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached". (ii) Whether pubic interest is affected. If the answers are in the negative, there should be no interference under Article 226 Page No.# 10/15 of the Constitution of India. Cases invoking blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licenses, dealerships and franchises) stand on a different footing as they may require a high degree of fairness in action."
12. The said principle was applied in Central Coalfields Ltd. -Vs- SLL-SML(Joint Venture Consortium) reported in (2016) 8SCC 622. The question for consideration whether furnishing a bank guarantee in the format prescribed in the bid documents is an essential requirement in the bidding process and whether a bid not accompanied by a bank guarantee in the format prescribed in the bid document of Central Coalfields Ltd. could be treated as non-responsive in view of Clause 15.2 of the General Terms and Conditions governing the bidding process. The learned Single Judge of the Hon'ble Jharkhand High Court held that it was necessary to adhere to strict terms of NIT as well as the prescribed format for the bank guarantee and further held that if there was any doubt in this regard the joint venture consortium (JVC) should have sought for a clarification as mentioned in the NIT. The JVC preferred letters patent appeal before the Hon'ble Division Bench of the High Court and the findings of the learned Single Judge was reversed holding that the submission of the bank guarantee in the prescribed form was a non essential terms of the NIT After discussing the materials on record the Hon'ble Apex Court finally applied the aforesaid test and held the decision making process as proper holding that the decision taken by Central Coalfields Ltd (CCL) to adhere to the terms and conditions of NIT and GTC was not irrational in any manner and the decision was lawful and not unsound.
13. The terms and conditions of the bid as per NIT dated 23.09.2019 amongst others, following are required to be taken note of:
"20. Bidders must have turnover not less than of Rs. 12,00,000/- (Rupees Twelve Crores) for the Financial year 2018-19.
21. The transporters of NFSA rice need to have functional GPS features in their vehicle to facilitate proper implementation of Supply Chain Management.
22. The bidders should have PAN Card, GST Registration number on its name and shall provide copies of the same with the tender, Voter ID to be submitted.
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23. The bidders should have Labour License and EPF Registration.
24. Bidders should have to submit the income Tax Returns for the last 3 (three) years and a copy of last GST Challan paid by the bidder.
25. Bidders have to submit the financial soundness/solvency certificate from any Nationalised Bank, the bidders should not be an NPA or defaulting in paying the bank dues.
26. The bidders must have to submit last 3(three) years Turnover Audited Statements by the Chartered Accountant have to be submitted."
14. The petitioner failed to submit the EPF Registration and contract registration. In addition, the petitioner also failed to attest the photograph of its agent by putting the signature. Due to such deficiencies the technical bid of the petitioner was rejected. On the other hand the respondent No. 6 submitted the EPF registration with the bidder firm's registration number. As against contract registration it submitted the Form of Registration in the District Industries Centre. Mr. Dubey wanted to project that mere application form for registration of the unit cannot be considered to be the registration what the employer sought for. Moreover, there was no papers showing the annual turnover of Rs. 12 Crores for the year 2018-19. On perusal of records, it is found that as per the assessment year 2018-19 and the audited statement for the year 01.04.2017 to 31.03.2018 it is shown to be above 12 crores. But the intriguing fact is that on verification of the documents and the bid papers of the petitioner which run from page No. 1 to 110, each and every pages including the audited statement were signed by three members of the Tender Committee, Sri Gunajit Roy Choudhury, ACS, ADC, Nalbari & i/c Deputy Director FCS & CA, Nalbari, Smti Daisy Nath, AFS, Finance & Account Officer and Sachin Patgiri, Superintend, FCS & CA, Nalbari. On the other hand as found from the "particulars" of technical bid of the respondent No. 6 the pagination of documents start from the figure 2 and ends at 19 and each and every documents are found to be signed by the members bearing the pagination in seriatim from 2 to 19. But on perusal of the Audited report of Chartered Accountant for 3 (three) financial years nowhere the members put their signatures in the manner signed in the documents for technical bid of the petitioner. There is no explanation to that effect nor the said audited statements are paginated in seriatim. If we consider the documents covered in seriatim from page 2 to 19, the respondent No. 6 had failed to submit 3 years Turnover Audited Statements by the Page No.# 12/15 Chartered Accountant resultantly the respondent No. 6 failed to establish the turnover of Rs. 12 crores for the year 2018-19. Bereft of any explanation as hereinabove stated, I am of the considered view that the said documents were not before the Tender Evaluation Committee on 01.10.2019, the date on which the meeting of the committee took place for opening of the technical bids. The said fact is established from the Comparative Statement wherein the Committee only perused and evaluated the income tax statement without the Audited statements of the Chartered Accountant.
15. From the discussions above non submission of EPF Registration, contract registration and attestation of the photograph of the agent of the petitioner were the grounds for rejection of its technical bid. The submission of Mr. Dubey that the challan showing the deposit of sum against the EPF is sufficient to hold that the petitioner had its EPF registration cannot be accepted. There is a specific failure on the part of the petitioner in overcoming the criteria laid by the employer. Similarly, the vagueness of the criteria requiring the bidders to submit contract registration also cannot be accepted. If at all there was any hazy notion in respect of the purpose and meaning of the same, the petitioner was required to get it clarified from the employer. Without doing so and subsequent to its participation, the petitioner cannot be allowed to raise the issue of vagueness of the clause before this court. Accordingly I donot find any force in the submission of Mr. Dubey.
16. Now whether acceptance of the technical bid of respondent No. 6 was reasonable and for the public interest. In Kasturi Lal Lakshmi Reddy etc Vs- State of Jammu & Kashmir and anr, reported in AIR 1980 SC 1992 it was held that if the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be liable to be tested for its validity on the touchstone of reasonableness and public interest and if it fails to satisfy either test, it would be unconstitutional. It was held that the discretion of the Government has been held to be not unlimited in that the Government cannot give largess in its arbitrary discretion or at its sweet will or on such terms as it chooses in its absolute discretion. There are two limitations imposed by law which structure and control the discretion of the Government in this behalf. The first is in regard to the terms on which largess may be granted and other, in regard to the persons who may be recipients of such Page No.# 13/15 largess. But one basic principle which must guide the court in arriving at its determination on this question is that there is always a presumption that the governmental action is reasonable and in the public interest and it is for the party challenging its validity to show that it is wanting in reasonableness and in public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the court by proper and adequate material. Where it is so satisfied it would be the plainest duty of the court under the Constitution to invalidate the governmental action for preservation of the rule of law.
17. In the present case in hand a specific allegation is made by the petitioner that respondent No. 6 failed to submit 3 years audited annual turnover and that the annual turnover for the year 2018-19 was Rs. 12 crores. The record was called for as there was a specific denial of the said stand by the respondent No. 6. In order to examine the said issue of unreasonableness and arbitrariness which lies at the core of the Constitution, I scrutinized the records and findings are already recorded as hereinabove. The respondent No. 6 failed to submit the audited annual turnover for 3 years in order to qualify the technical bid. Mere, submission of the Income tax return for 3 years without the audited annual turnover is a specific non compliance of Clause 26 of the terms of the NIT. Clause 19 as hereinabove referred in terms of the NIT stipulates in the strict language essentiality of the submission of the said documents for technical qualification of bidders. The rule is applicable for all. There may be prospective bidder/bidders who owing to the said criteria could not participate in the tender process. Had there been any indication of non requirement of such documents for technical bidding other potential bidders could have participated in the tender process.
18. It would be relevant to take note of the ratio laid down by the Apex Court in Ramana Dayaram Shethy -Vs- The International Airport Authority of India as reported in AIR 1979 SC 1628. On 3rd January, 1977 a notice inviting tender for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay was issued by the 1 st respondent which prescribed as "sealed tenders in the prescribed form are hereby invited from Registered 2nd Class Hoteliers having at least 5 years' experience for putting up and running a 2nd Class restaurant and two snack bars at this Airport for a period of 3 years". The 4th respondent had experience only of running canteens and not restaurants and it appeared Page No.# 14/15 that they did not satisfy the description of "registered 2 nd Class Hotelier having at least 5 years' experience." But the 1st respondent accepted the tender of the 4th respondents. The said act of acceptance of the tender of 4th respondent was held to be in violation of Article 14 of the Constitution. Further the Apex Court held that when the 1 st respondent entertained the tender of the 4th respondents even though they did not have 5 years experience of running a 2nd class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for the contract. The action of the 1 st respondent in accepting the tender of the 4th respondents even though they did not satisfy the prescribed condition of eligibility, was clearly discriminatory, since it excluded other persons, similarly situate from tendering for the contract and it was arbitrary and without reason. The same was invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action.
19. Here in the present case, the criteria for the bidders to technically qualify are stipulated for its application to all the bidders. If the same is relaxed for a particular bidder to favour him by the Tender Evaluation Committee the normal presumption that the governmental action is reasonable and in the public interest vanished. The burden undertaken in the case at hand by the petitioner is discharged to the satisfaction of this court that there was unreasonableness and arbitrariness in the decision making process of the Tender Evaluation Committee as held in Kasturi Lal Lakshmi Reddy etc (supra). Again applying the ratio of Ramana Dayaram Shethy -Vs- International Airport Authority of India (supra) such relaxation in favour of respondent No. 6 of Clause 26 of Tender Terms is discriminatory, violative of equality clause of the Constitution and rule of administrative law and the decision of the Tender Evaluation Committed holding the respondent No. 6 as the only technically responsive bidder is invalid. The answers against the questions set out in Jagadish Mandal (supra) comes out in this case to be positive and as such this Court under Article 226 of the Constitution is well within the circumscribed limit to enter into the act of judicial review and interference thereof, with the decision of the Tender Committee when the decision making process of the Tender Evaluation Committee is arbitrary and violative of Article 14 of the Constitution.
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20. Accordingly with the said finding, I conclude that the rejection of the technical bid of the petitioner is proper but declaring the respondent No. 6 as the technically responsive bidder is invalid and as such the decision of the Tender Evaluation Committee under the Chairmanship of the respondent No. 3 as per Minutes of meeting dated 04.10.2019 is set aside and quashed. The State respondents to take necessary steps for calling fresh NIT as per law immediately and complete the process at the earliest.
This writ petition is decided accordingly but without costs. Records be handed over to Ms. Bhattacharjee, the learned Additional Senior Government Advocate, Assam.
JUDGE Comparing Assistant