Orissa High Court
Vedika Resources vs National Aluminium Company Ltd on 20 November, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.9039 of 2024
In the matter of an Application under Articles 226 & 227 of
the Constitution of India, 1950
***
Vedika Resources through its Sole Proprietor Mr. Radha Krishna Mishra At-16, Bhouma Nagar, Unit-4 Bhubaneswar Odisha - 751 001. ... Petitioner
-VERSUS-
1. National Aluminium Company Ltd.
Represented by its Deputy General Manager Tender & Contract Department-Smelter Plant At: Nalconagar, Angul Odisha - 759 145.
2. Maa Mangala Construction At: Quarter No.A. Type 352 Nalconagar, P.O. Kandasar Angul, Odisha - 759 145. ... Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Prafulla Kumar Rath, Senior Advocate along with M/s. Arya Tripathy, N. Dadhichi and A. Khandelwal, Advocates W.P.(C) No.9039 of 2024 Page 1 of 27 For the Opposite Party : M/s. Tanmay Mishra No.1 S.S. Parida and S. Das, Advocates For the Opposite Party : M/s. Abhas Mohanty, No.2 P. Patnaik, J. Sahoo, D. Pattanaik and A. Mohanty, Advocates P R E S E N T:
HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 20.11.2025 :: Date of Judgment : 20.11.2025 J UDGMENT MURAHARI SRI RAMAN, J.--
By way of filing writ petition under the provisions of Articles 226 and 227 of the Constitution of India, the petitioner craves to question the legality, propriety and reasonableness in declaring the bid of the opposite party No.2-Maa Mangala Construction as technically qualified despite having no prequalification credentials and beseeches to grant following relief(s):
"In the circumstances, it is most graciously prayed for that this Hon‟ble Court may be pleased to admit the writ application and be pleased to:W.P.(C) No.9039 of 2024 Page 2 of 27
(i) Issue a Writ of Certiorari or any other appropriate writ to quash and set aside the results of the price bid round dated 22.01.2024 declaring Opposite Party No.2 as the L-1 bidder under Annexure-9 of the instant Writ Petition;
(ii) Issue a Writ of Mandamus or any other appropriate writ directing Opposite Party No.1 to issue the work order in the Petitioner‟s favour;
(iii) Pass any other or further order(s) as deemed just and proper in the facts and circumstances of the case.
And for this act of kindness, the petitioner shall as is duty bound ever pray."
Facts emanate from the writ petition:
2. Notice inviting tender dated 5th October, 2023 has been floated by the opposite party No.1-National Aluminium Company Limited (NALCO) relating to "Cleaning of Overhead Water Tanks of Residential and Non-residential Buildings and Underground Reservoirs in Nalconagar Township and CISF Colony by Mechanical Means".
2.1. Five bidders including the petitioner and the opposite party No.2 participated in the tender. The opposite party No.2 submitted a copy of work order bearing No.SMLT/T&C/S02/OMC5120/5300004528/ WO/ 5840, dated 21st December, 2019 to demonstrate its eligibility with respect to "similar work" experience.W.P.(C) No.9039 of 2024 Page 3 of 27
2.2. It is alleged by the petitioner that said document does not relate to the work under advertisement, viz. "Cleaning Overhead Fresh Water Tanks and Underground Reservoirs by Mechanical Means". It is alleged that the opposite party No.1 without considering such document in proper perspective having declared the opposite party No.2 as technically qualified proceeded to open its price bid to declare it L1 bidder.
2.3. Arbitrariness in action, bereft of application of mind and unmindful scrutiny of documents of authorites of NALCO brought the petitioner before this Court questioning the conclusion reached at by said organisation as a result of faulty decision making process.
2.4. Challenging the decision of NALCO, the instant writ petition is filed.
Hearing:
3. Heard Sri Prafulla Kumar Rath, learned Senior Advocate along with Sri Arya Tripathy, learned Advocate appearing for the petitioner and Sri Tanmay Mishra, Advocate appearing for opposite party No.1 and Sri Abhas Mohanty, learned Advocate appearing for opposite party No.2.
Submissions:
W.P.(C) No.9039 of 2024 Page 4 of 274. Sri Prafulla Kumar Rath, learned Senior Advocate along with Sri Arya Tripathy, learned Advocate appearing for the petitioner has taken this Court to Annexure-5, i.e., copy of "Service Purchase Order" issued by the NALCO in favour of opposite party No.2, which indicates that the nature of work is "Maintenance of Waste Water Treatment Plant" "Sewage Pump House for the year 2020-2022", but not the similar type of work which is published in the advertisement.
4.1. He submitted that such credential as prequalification criteria does not conform to the work desired in the advertisement. Amplifying his submission, he would argue that at no stretch of imagination the work of maintenance of Waste Water Treatment Plant can be equated with the cleaning of overhead water tank. Therefore, he vociferously urged that the decision of NALCO cannot be considered as appropriate. It is further explained by the learned Senior Advocate by drawing attention to the following table drawing distinctive features:
Tender Requirement Work order submitted by Work order submitted by Pre-Qualifying Criteria Petitioner Opposite party No.2 Cleaning of overhead Cleaning of overhead Operation & Maintenance tank/underground tank of residential and of waste water treatment reservoir by mechanical non-residential building plant & sewage pump means. in Nalconagar Township house for the year 2020-
and CISF Colony. 22.W.P.(C) No.9039 of 2024 Page 5 of 27
4.2. Therefore, he laid emphasis on paragraph-7 of the written notes, which runs as follows:
"It is the petitioner‟s case that the Opposite Party No.2 on the strength of such document does not meet the essential technical Pre-Qualifying Criteria for the following reasons:
(i) The said work order pertained to "Operation & Maintenance of waste water treatment plant & sewerage pump house for the year 2020-22" and does not qualify the definition of „similar work‟ as defined in the tender document- which means cleaning of overhead clean drinking water tank/underground clean drinking water reservoir by mechanical means.
(ii) Item No.23 of the said work order, which the Opposite Party No.1 justifies to be „similar work‟ is clearly a „sewer cleaning & sludge removal work‟ and is not even close to the cleaning of overhead clean drinking water tank and clean drinking water under-ground reservoirs by mechanical means. Both works i.e. cleaning of sewers and cleaning of fresh water tanks/reservoirs involve distinct processes and are very different from each other.
(iii) The value of the said work is for Rs.57,518/- which clearly falls short of the value criteria i.e. more than Rs.17.36 lakhs."
4.3. To buttress his argument that the selection of opposite party No.2 is in complete violation of essential conditions of tender and thereby the selection of opposite party No.2 warrants indulgence of this Court, he relied on the following decisions:
W.P.(C) No.9039 of 2024 Page 6 of 271. Vidarbha Irrigation Development Corporation and others Vrs. Anoj Kumar Agarwala and others, (2020) 17 SCC 577.
2. AF Enterprises Limited Vrs. State of Odisha and others, MANU/OR/1104/2022.
3. Aparna Sahoo Vrs. State of Odisha and others, MANU/OR/0882/2023.
4. Sachin Kumar Agarwal Vrs. State of Odisha, Judgment dated 3rd April, 2023 in WP(C) No.31112 of 2022.
5. Sri Tanmay Mishra, learned Counsel appearing for the opposite party No.1-NALCO submitted that the scope of judicial review to interfere with the decision of the opposite party No.1 is very limited. Since the petitioner has challenged the decision of the opposite party No.1, the writ petition is liable to be dismissed being misconceived.
5.1. He proceeded to argue that in view of definition of terms "similar work" in the Notice Inviting Tender ("NIT", for short), there is little scope to question the credential of the opposite party No.2 who accomplished the work order relating to Mechanised Cleaning of Zero Discharge Sump Pit. Since the Sump is underground reservoir, the opposite party No.2 has the requisite qualification. Such work is adjudged by the tenderer as conforming to the Pre-Qualifying Criteria.
W.P.(C) No.9039 of 2024 Page 7 of 275.2. It is submitted by the learned counsel appearing for opposite party No.1 that the issuance of work order after the opposite party No.2 was declared successful as L1 was kept in hold on account of complaint received from the petitioner.
5.3. A Committee has been formed comprising members belonging to other Departments to review the bid technical evaluation, which observed that the technical evaluation bid had been done in line with Pre-Qualifying Criteria. Said Committee having re-evaluated the bids, recommended the offer of the opposite party No.2 as "technically acceptable".
5.4. He forcefully supported the decision of the Committee and strenuously argued that there being no flaw in decision making process of NALCO in declaring the opposite party No.2, as successful bidder being L1, the writ petition deserves to be dismissed.
Analysis and discussions:
6. NIT specified Pre-Qualifying Criteria under the Heading "Technical" as follows:
"Experience Criteria The bidder should have experience of having successfully completed "Similar Work" during the last seven years ending on last day of the month previous to the one in which NITs, are invited, should be either of the followings:W.P.(C) No.9039 of 2024 Page 8 of 27
I. Three similar completed/partially completed works each (with above criteria) having executed value not less than Rs.8.68 lakhs (Rupee Eight Lakh Sixty Eight Thousand only).
Or II. Two similar completed/partially completed works each (with above criteria) having executed value not less than Rs.10.86 lakhs (Rupees Ten Lakh Eight Five Thousand Only).
Or III. One similar completed/partially completed work (with above criteria) having executed value not less than Rs.17.36 Lakhs ( Rupees Seventeen Lakh Thirty Six Thousand Only) The work experience should be of "Working directly"
and possess relevant experience as per the details given under experience criteria. "Working directly"
implies, working as a Contractor or Sub Contractor under above authorities who is the Principal Owner of the Work.
Evaluation Criteria:
Cost of the completed works by the bidder shall be escalated @ 10% per annum (simple rate) to bring them at the current price level.
(The cost of work completed within one year prior to original date of bid opening shall not be considered for any weightage. The weightage shall only be considered for work completed prior to one year of original date of bid opening on annual basis and no weightage shall be given for part of the year) W.P.(C) No.9039 of 2024 Page 9 of 27 "Similar Work" means "Cleaning of overhead tank/underground reservoir by mechanical means"
Partially completed work in progress (not abandoned) shall be considered."
6.1. Under the Heading "Special Conditions of Contract", it was provided that:
"2.0. Other special conditions Contract 2.1. The scope of work includes carrying out cleaning of all the overhead tanks in Nalco Nagar Township & CISF colony at Angul two times maintaining a gap of one year (min) between the successive cleanings.
2.2. The contractor has to ensure that, the drinking water tank will remain totally bacteria free and sale enough for storing clean drinking water after cleaning of the tank.
2.3. The cleaning work shall be commence from 9.00 A.M. to 12.30 P.M. and 2.30 P.M. to 5.00 P.M. during the off hour of direct water supply from main line.
2.4. Skilled workers must have good knowledge of running various machines to be operated in this work and keeping records of all operation. All the workers shall be carried out with ID card issued by the contractor.
2.5. Contractor will provide all safety appliances to his workers.
2.6. Nalco‟s G.C.C. will be a part of this contract.
2.7. In case of any dispute arising at the time of execution, decision given by E.I.C. will be final and binding.W.P.(C) No.9039 of 2024 Page 10 of 27
2.8. Necessary equipment and consumables for the subject work shall be arranged by the contractor.
2.9. All the equipment used by the contract and its functions are to be get it checked and approved by Engineer-in-charge of Nalco.
2.10.Necessary arrangement shall be available with contractor for obtaining power connection from suitable of power point which cleaning of OHT of residential and non-residential building."
6.2. Under the Heading "bid evaluation" it is provided that:
"Bid evaluation 5.1. Evaluation will be done strictly in line with the facilities available under government website www.gem.gov.in i.e. based on documents uploaded by the bidder as per PQC. In case of non-compliance to the PQC requirement, i.e., any shortfall documents arise out of submitted technical as well as commercial credential submitted within tender submission date, bidders will be given normally one chance under GeM Portal to upload shortfall documents within a stipulated date. No new documents would be called up as part of PQC experience documents.
5.2. The technical acceptability will be strictly as per matching of PQC with submitted work credential by the bidder.
5.3. In case any specific adverse report is received against any bidder and proved to be corrected after enquiry about the statement made/credential submitted along with the offer documents in respect of capabilities, spare capacities, performance, completion certificates W.P.(C) No.9039 of 2024 Page 11 of 27 and criminal background of the bidder, the offer submitted by such bidder shall be rejected and penal action as deemed fit may be initiated."
6.3. On perusal of copy of "Service Purchase Order" at Annexure-5, it is surfaced that the opposite party No.2 performed Maintenance of Waste Water Treatment Plant and Sewage Pump House for the year 2020-22 and the Bill of Quantity & Schedule of Rates at Annexure-II appended thereto reveals "Mechanized Cleaning of Sedimented Sludge".
6.4. The learned Senior Advocate appearing for the petitioner having referred to the figures reflected under the column "Amounts" contended that the same is not in conformity with the amounts stipulated in Pre-qualification Criteria. It is arduously submitted that the opposite party No.1- NALCO could not have ignored the calculation on arithmetical precision with respect to quantum of work executed which is claimed to be of "similar work". Glance at the factual matrix with reference to documents it is demonstrably manifest that the Operation of Maintenance of Waste Water Treatment Plant and Sewage Pump House could not be considered as similar work in comparison with the work under NIT, i.e., Cleaning of Overhead Water Tanks of Residential and Non-residential Buildings and Underground Reservoirs.
W.P.(C) No.9039 of 2024 Page 12 of 276.5. Having meticulously perused such document, this Court finds that the credential as shown by the opposite party No.2 is not in consonance with the work desired to be accomplished in the NIT. One of the special conditions of the contract reveals that the contractor has to ensure that the drinking water tank will remain totally bacteria free and safe enough for storing clean drinking water after cleaning of the tank. The bid evaluation inter alia stipulated that "the technical acceptability will be strictly as per matching of PQC with submitted work credentials by the bidder".
6.6. Taking holistic view of material available on record, this Court is not persuaded with the arguments advanced by the learned counsel appearing for the NALCO. On bare perusal of documents submitted by the opposite party No.2 ex facie leads to indicate that its work credential does not fall within the scope of definition of the term "similar work".
6.7. The terms of NIT cannot be brushed aside as redundant or superfluous. The essential criteria is required to be evaluated properly and in a transparent manner with rational application of mind. Such a conclusion is arrived on a cursory glance at definition of "similar work" as defined in NIT under Heading "Pre-Qualification Criteria"
and the Service Purchase Order.W.P.(C) No.9039 of 2024 Page 13 of 27
7. The materials available on record and on consideration of the arguments advanced by the learned counsel for the parties, it is abundantly clear that the acceptance of bid of the opposite party No.2 on evaluating the work "Mechanised Cleaning of Sedimented Sludge" under the Service Purchase Order for "Operation and Maintenance of Waste Water Treatment Plant and Sewage Pump House" is inchoate and exceptionable. Such factual details on record existing at the time of opening of the technical bid did not pass the muster of Pre-Qualification Criteria. Hence, the manner in which the bid was accepted by opposite party No.1 demonstrates arbitrary exercise of power.
7.1. As is held by this Court in AF Enterprises Limited Vs. The State of Odisha and others, 2023 (I) ILR-CUT 124 that an essential condition stipulated in NIT must be adhered to scrupulously and the authority issuing tender is required to enforce it with rigidity.
7.2. The Hon'ble Supreme Court of India in the case of Banshidhar Construction Pvt. Ltd. Vs. Bharat Coking Coal Limited and others, (2024) SCC OnLine SC 2700 observed that the writ Court does not sit as a Court of appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contacts. However, it is W.P.(C) No.9039 of 2024 Page 14 of 27 equally well settled that the decision of the Government/its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by mala fides. For better appreciations, the following is quoted from said reported judgment:
"22. At this juncture, we may reiterate the well-established tenets of law pertaining to the scope of judicial intervention in Government contracts.
23. In Sterling Computers Ltd. Vrs. M & N Publications Ltd., (1993) 1 SCC 445, this Court while dealing with the scope of judicial review of award of contracts held :
„18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". In this connection reference may be made to Chief Constable of the North Wales Police Vrs. Evans, (1982) 1 WLR 1155 (HL) where it was said that:
„... The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.‟ By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of W.P.(C) No.9039 of 2024 Page 15 of 27 any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police Vrs. Evans, (1982) 1 WLR 1155 (HL) the courts can certainly examine whether "decision-making process" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.‟
24. In Tata Cellular Vrs. Union of India, (1994) 6 SCC 651, this Court had laid down certain principles for the judicial review of administrative action:
„94. The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.W.P.(C) No.9039 of 2024 Page 16 of 27
(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-
administrative sphere. However, the decision must not only be tested by the application of Associated Provincial Picture Houses Vrs. Wednesbury Corpn., (1948) 1 KB 223 (CA) principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
Based on these principles we will examine the facts of this case since they commend to us as the correct principles."
25. It has also been held in ABL International Ltd. Vrs. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553, as under:
„53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution.‟
26. In Jagdish Mandal Vrs. State of Orissa, (2007) 14 SCC 517, this Court after discussing number of judgments laid down two tests to determine the extent of judicial interference in tender matters. They are:
W.P.(C) No.9039 of 2024 Page 17 of 27„22. ***
(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;‟
(iii) Whether public interest is affected.
If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action."
27. In Mihan (India) Ltd. Vrs. GMR Airports Ltd., (2022) 19 SCC 69, while observing that the government contracts granted by the government bodies must uphold fairness, equality and rule of law while dealing with the contractual matters, it was observed as under:
„50. In view of the above, it is apparent that in Government contracts, if granted by the Government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The transparent bidding process is W.P.(C) No.9039 of 2024 Page 18 of 27 favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest.‟
28. It was sought to be submitted by the learned counsel for the respondents relying upon the observations made in Central Coalfields Ltd. Vrs. SLL-SML (JVC), (2016) 8 SCC 622, that whether a term of NIT is essential or not is a decision taken by the employer which should be respected. However, in the said judgment also it is observed that if the employer has exercised the inherent authority to deviate from the essential term, such deviation has to be made applicable to all the bidders and potential bidders. It was observed in paras 47 and 48 as under: (SCC p. 638) „47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty Vrs. International Airport Authority of India, (1979) 3 SCC 489 the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular Vrs. Union of India, (1994) 6 SCC 651 there must be judicial restraint in interfering with administrative W.P.(C) No.9039 of 2024 Page 19 of 27 action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision „that no responsible authority acting reasonably and in accordance with relevant law could have reached‟ as held in Jagdish Mandal Vrs. State of Orissa, (2007) 14 SCC 517 followed in Michigan Rubber (India) Ltd. Vrs. State of Karnataka, (2012) 8 SCC 216.
48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty Vrs. International Airport Authority of India, (1979) 3 SCC 489. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.‟ ***"
7.3. It may be pertinent to refer to judgment of the Hon'ble Supreme Court in Vidarbha Irrigation Development Corporation and others Vrs. Anoj Kumar Agarwala and W.P.(C) No.9039 of 2024 Page 20 of 27 others, (2020) 17 SCC 577, wherein it has been observed as follows:
"14. The law on the subject is well settled. In Bakshi Security & Personnel Services (P) Ltd. Vrs. Devkishan Computed (P) Ltd., (2016) 8 SCC 446, this Court held:
„14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. Vrs. Ganesh Engg. Works, (1991) 3 SCC 273 this Court held as under:
„6. *** The requirements in a tender notice can be classified into two categories-- those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance with the condition in appropriate cases.‟
15. Similarly in B.S.N. Joshi & Sons Ltd. Vrs. Nair Coal Services Ltd., (2006) 11 SCC 548 this Court held as under:
„(i) if there are essential conditions, the same must be adhered to;
(ii) if there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;W.P.(C) No.9039 of 2024 Page 21 of 27
(iii) if, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing;
(iv) the parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance with another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction;
(v) when a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with;‟
16. We also agree with the contention of Shri Raval that the writ jurisdiction cannot be utilised to make a fresh bargain between parties."
15. However, the learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. Vrs. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, and paras 14 and 15 in particular, which state:
W.P.(C) No.9039 of 2024 Page 22 of 27„14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty Vrs. International Airport Authority of India, (1979) 3 SCC 489 was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous -- they must be given meaning and their necessary significance. In this context, the use of the word "metro" in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.
15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.‟
16. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous-- they must be given meaning and their necessary significance. Given the W.P.(C) No.9039 of 2024 Page 23 of 27 fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court."
Conclusion:
8. Conspectus of aforesaid decisions and given factual ambit as discussed above leads to unambiguous position that on bare scrutiny of documents, it is revealed that the essential condition, i.e., "similar works" as defined in NIT has not been satisfied by the opposite party No.2 and the opposite party No.1 having appreciated erroneously by misconstruing the nature of work, i.e., executed by the opposite party No.2, the acceptance of its bid and declaring it as L1 is tainted with arbitrariness.
8.1. In Montecarlo Ltd. Vrs. NTPC Ltd., (2016) 15 SCC 272, referring to various judgments, including the judgment in Afcons Infrastructure Ltd. Vrs. Nagpur Metro Rail Corpn.
Ltd., (2016) 16 SCC 818, it was concluded as follows:
"26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the W.P.(C) No.9039 of 2024 Page 24 of 27 nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be W.P.(C) No.9039 of 2024 Page 25 of 27 impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints."
8.2. In the instant case the documents showing credentials claiming "similar works" furnished by the opposite party No.2 on bare comparison would show that they are not in conformity with the nature of work advertised. On comparable analysis of the works, it can safely be said that the Committee has exercised its arbitrary powers to declare the opposite party No.2 as successful. The counsel for NALCO has not produced any expert opinion.
8.3. There is no two opinion with regard to proposition of law that with regard to interpretation of terms of the contract vis-à-vis the question as to whether a term of contract is essential or not is to be viewed from the perspective of employer. While taking decision whether both the works would fall within the scope of definition of the term "similar works", it has travelled beyond the scope of such term as defined in NIT.
8.4. As the employer/NALCO has not seemly evaluated the documents furnished by the opposite party No.2 and W.P.(C) No.9039 of 2024 Page 26 of 27 inappropriately matched works shown to have been executed by the opposite party No.2 with that of work advertised, this Court is persuaded to set aside the declaration of opposite party No.2 as L1 bidder by the opposite party No.1.
9. Accordingly, the writ petition is allowed and pending interlocutory application(s), if any, shall also stand disposed of accordingly, but in the circumstances there shall be no order as to cost.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not Verified
Digitally Signed
Signed by: ASWINI KUMAR SETHY
Designation: Personal Assistant
(Secretary in-charge)
Reason: Authentication
Location: ORISSA HIGH COURT, High Court of Orissa, Cuttack
CUTTACK
Date: 20-Nov-2025 14:27:49 The 20th November, 2025//Aswini/Laxmikant
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