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The petitioner was, accordingly, granted three days' time to give his reply to the aforesaid show cause notice with stipulation that in case of no reply is received within the stipulated time, it is to be presumed that the petitioner has nothing to say. The petitioner, however, with much difficulty, gave his reply to the show cause notice on 31.08.2023 by way of Annexure-9 denying the allegation and praying to grant some days for submission of suitable invoices, but OPNo.4 proceeded to cancel the bid of the petitioner by Annexure-10 invoking the Clause-21.5 of the ITB of the DTCN. According to the petitioner, after evaluation of technical bid followed by opening of financial bid with declaration of petitioner as L1 in the lottery, the subsequent cancellation of bid of the petitioner invoking Clause-21.5 of ITB of DTCN is not only illegal, but also bad in the eye of law and therefore, the action of O.P. No.4 in cancelling the bid of the petitioner is unsustainable and liable to be quashed. On the above pleadings, the petitioner has approached this Court in the above writ petition with the relief indicated supra.

despite valid service, but O.P. No.9 although entered appearance through its counsel, but has not filed any counter affidavit and it has taken part in the hearing of the writ through its counsel.

5. In the course of hearing of the writ, Mr. S.K. Dalai, learned counsel for the petitioner has submitted by taking this Court through the conditions stipulating the "opening and evaluation of bid" placed at Clause-21 of the ITB of DTCN that the petitioner was not only successfully qualified the technical bid, but was found to be L1 in the financial bid which was opened after the evaluation of technical bid and although three bidders had quoted same price, but the petitioner had won the bid in the lottery and accordingly, was the successful bidder to the tender, however, the authority being hand in gloves with O.P. No.5 had subsequently cancelled the bid by invoking Clause-21.5 of ITB which was successfully qualified by the petitioner followed by opening of financial bid. It is further submitted by Mr. Dalai that after evaluation of "technical bid", petitioner being found successful in such technical bid, the subsequent invocation of Clause-21.5 of ITB after knowing the financial bid of the petitioner appears to be contrary to the provision of law and the conditions of the contract, since Clause-21.5 relates back to the time of evaluation of technical bid, but the authority after having declared the petitioner as the successful bidder in the lottery had subsequently invoked Clause-21.5 of ITB to cancel the bid of the petitioner without providing any opportunity of hearing to the petitioner violating the principle of natural justice. It is further submitted by Mr. Dalai that the petitioner has never furnished any false or fabricated document, rather the authority concerned without verifying the factual position and at a belated stage, after opening of financial bid sought for clarification regarding genuineness of the invoice, but the bid of the petitioner was cancelled without really verifying the document by relying upon the e-Mail, whose genuineness is doubtful and thereby, the order passed by O.P. No.4 under Annexure-10 cancelling the bid of the petitioner invoking Clause-21.5 of ITB is not only illegal in the eye of law, but also cannot sustain since O.P. No.4 had cancelled the bid of the petitioner unilaterally without verifying the material documents and coming to an erroneous conclusion that the petitioner had furnished fake tax invoice of "Wet Mix Plant" and therefore, such order cannot sustain in the eye of law. In summing up his argument, Mr. Dalai has prayed to quash Annexure- 10 for the aforesaid reason.

A plain glance of the aforesaid condition of ITB would go to reveal that at the time of technical evaluation of the bid, the information furnished by the bidder is required to be verified and in case any information/ statements/ documents/ certificates furnished by the bidder is found to be false/ fabricated/ bogus, his EMD/bid security shall stand forfeited and his registration in the portal shall be blocked and the bidder is liable to be blacklisted. In this case, however, it is found that the petitioner was qualified in the technical bid which was not disputed by any of the parties and the petitioner was further found to have quoted lowest price along with O.P. Nos.5 & 6, but the admitted position is that the petitioner was successful in the lottery and accordingly was declared as L1. Hence, the stage of Clause-21.5 of the ITB of the DTCN has not only been over, but also subsequently the financial bid was opened and the petitioner was declared successful as L1 in the lottery. The factual position reveals that after the petitioner was declared successful as L1 in the lottery, he was asked to produce certain documents, but the petitioner has prayed for time to produce such documents and on receipt of written complaint from OP No.5 on 07.08.2023, the O.P. No.4 on the same date has forwarded the tax invoice of the "Wet Mix Plant" uploaded by the petitioner to Himalaya Engineering Company, Gujurat (O.P. No.9) for verification, which is found from paragraph-20 of the counter affidavit of O.P. Nos.1 to 4 which is extracted as under:

Hence, your bid submitted for the above work is hereby cancelled as per clause no.21.5 of the Instruction to Bidders (ITB) of the DTCN."

On a plain reading of contents of Annexure- 10, it appears that OP No.4 has cancelled the bid of the petitioner by invoking Clause No. 21.5 ITB of DTCN, but the undisputed fact is that Clause No. 21.5 of the ITB can only be invoked at the time of evaluation of technical bid, but in this case the Technical Committee has already evaluated and decided the same in favour of the petitioner to be qualified in technical bid. Had the petitioner furnished any fake document, the Tender Evaluation Committee would have taken note of it at the time of evaluation of technical bid for invoking Clause No. 21.5 of the ITB, but once the petitioner was declared qualified in technical bid and he was found L1 in the financial bid which was opened just two days after the evaluation of technical bid, the petitioner's bid cannot be cancelled on 31.08.2023 which is more than a month after the evaluation of technical bid by invoking the conditions for disqualification of technical bid as enumerated in Clause No. 21.5 of ITB. It is also stated in paragraph-13 of counter affidavit of OP Nos. 1 to 4 that there was no scope at the stage(technical) to verify the authenticity of the documents uploaded by the bidders for reason that Clause No.21.5 of ITB of DTCN prescribes that technical evaluation of all the bids will be taken up as per the information furnished by the bidders, but law is well settled that the evaluation of the technical bid has to be done on the terms and conditions as prescribed in the ITB of DTCN. Once the authority concerned has found the petitioner to be qualified in the technical bid, his bid cannot be cancelled on the reason that he has furnished fake documents by invoking the conditions prescribed for evaluation of technical bid which stage was already over and the petitioner was subsequently declared as L1 bidder.