D. Yongnyak Konyak v. The National Project Construction Corporation Limited

Order

:

16.09.2022 Date of Judgment & Order ::

19.12.2022 JUDGMENT AND ORDER (CAV) W.P.(C) No.162 of 2020 has been filed by the petitioner to quash the impugned cancellation notice dated

3.1.2020, letter dated 8.1.2020 and two Notice Inviting Tenders WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 4 dated 15.2.2020 and to direct the respondents to consider the case of the petitioner, being L1 contractor in the said bidding of NIT No.799782/D/CAU-Imphal/CA/2016-17/15 dated 4.1.2017.

2. W.P.(C) No.123 of 2022 has been filed by the petitioner to quash the impugned Notice Inviting Tenders dated

28.1.2022 in the event this Court is allowing W.P.(C) No.162 of

3. Since the issue involved in W.P.(C) No.162 of 2020 and W.P.(C) No.123 of 2022 is intertwined, both the writ

petitions are disposed of by this common order.

4. Heard Mr. Serto T Kom, learned counsel for the petitioner and Mr.Ratankumar, learned counsel respondents.

5. Assailing the impugned cancellation notice dated

3.1.2020 and the letter dated 8.1.2020, the learned counsel for the petitioner submitted that despite the fact that the petitioner being L1 contractor in the bidding of Notice Inviting Tender (NIT) dated 4.1.2017, the respondents arbitrarily without any justifiable reason or materials whimsically cancelled the NIT dated 4.1.2017 by issuing the impugned cancellation notice. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 5 Learned counsel would submit that the said act of the respondents in issuing the impugned letter and notice dated

3.1.2020 and 8.1.2020 respectively and the two NIT dated

15.2.2020 are arbitrary and illegal, more so, without assigning any cogent reason.

6. Learned counsel the petitioner further submitted that the whole process of bidding, depositing of tender processing fee of Rs.40,000/- and depositing the EMD of Rs.92 lakh and requesting the petitioner for the last 4 or 5 years to extend the validity of the bid from time to time as regular as 3 months is nothing but gross harassment. Thus, a prayer is made to set aside the impugned notice and letter and also two NITs dated 15.2.2020.

7. Per contra, learned counsel respondents submitted that since the tender was invited in the pre GST era, there is complex tax situation arisen because of the anti-profiteering law of the GST. There were several Central as well as State Taxes applicable on composite work such as CST, ED WCT Cess etc, which have been subsumed after implementation of GST. He would submit that as the National Project Construction Corporation Limited (NPCC) is facing WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 6 complex tax calculation which may not be acceptable to the lowest bidder and to avoid any ambiguity, the competent authority has decided to cancel the tender and invite a fresh tender.

8. The learned counsel further submitted that since the NPCC is the authority inviting tender, it reserves right to cancel the tender at any stage without any reason to the parties. Since the petitioner accepted the terms and conditions of the tender, the NPCC has cancelled the tender in the interest of the work. The cancellation of the tender was informed to the petitioner and he was also informed about inviting fresh bids and if he desires, the petitioner can also participate in the upcoming fresh tender as per the prevailing terms and conditions of new tender.

9. Learned counsel added that as per Clause 9 of the prequalification criteria of tender dated 4.1.2017, the NPCC reserves right to reject any or all applications without assigning any reason thereof. As per Clause 10, the acceptance of tender will rest with NPCC which does not bind itself to accept the lowest tender and reserves to itself the right to reject any or of the entire tender received without assigning any reason thereof. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 7 Learned counsel submitted that mere asking for extension of validity of the bank guarantee does not mean that the work was awarded to the petitioner.

10. In reply, the learned counsel for the petitioner submitted that the respondent NPCC is an institution which should act fairly and reasonably and the illegal action of the respondents cannot be justified in any manner whatsoever. The learned counsel further submitted that if not for awarding the work to the petitioner, why the petitioner was asked by the NPCC for extension of his offer validity every six months till the impugned notice dated 3.1.2020 was issued. The respondents in order to award the work to the petitioner, extension of the bid validity was taken and the petitioner is awaiting approval to start the work. Finally, the learned counsel argued that the respondents may not have any objection if the writ petition is allowed and the work is awarded to the petitioner, inasmuch as the plea of the respondents makes it clear that only for the reason that the tax calculation of NPCC may not be acceptable to the petitioner, the authority issued the impugned notice dated

3.1.2020. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 8

11. This Court considered the rival submissions and also perused the materials available on record.

12. The NPCC invited sealed percentage rate tenders under two bid systems, namely one envelope for technical bid and other for financial bid, from the experienced and financially as well as the technically sound agencies of national repute for the construction of Package V: College of Food Technology at Lamphelpat, Imphal for Central Agricultural University, Imphal as detailed below: S.No. Particulars Package V 1 2 3 4 a. Name of Building/ Work Construction of College of Food Technology Lamphelpat, Imphal Completion time (eighteen) months 18 including rainy season Approx. estimate cost Rs.8200 Lakhs (Approx) (Rupees Eight thousand two hundred Lakh only Earnest money to be deposited in following Rs.92 Ninety Two Lakh only) (Rupees EMD to be submitted in the form of DD/FDR for full amount as above or Minimum of Rs.20.00 DD/FDR Lakhs Nationalized/Scheduled Bank in favour of NPCC LTD payable at Faridabad & balance amount in the form of Bank Guarantee (BG) issued from Nationalized/Scheduled Pvt. Bank as per Memorandum attached with tender document. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 9 Rs.40000 (Rupees Thirty thousand only) Tender processing fee in the form of Demand Draft favour of NPCC Ltd. Payable at Faridabad (Non-refundable) Validity of Tender 120 days from last date of submission of tender Receipt of Tenders

18.01.2017 On 15:00 Hrs. Opening of Technical On 18.01.2017 at 15:30 Hrs. 5 6 7 8

13. According to the petitioner, since the offer of the petitioner was found lowest, the respondents vide letter dated

26.5.2017 informed the petitioner that his offer for the above mentioned NIT was lowest and the petitioner was requested to extend the validity of his offer upto 15.7.2017. Again on

11.7.2017, the petitioner was asked to extend the bid and the validity of bank guarantee for another 3 months till 26.10.2017. As such, the bid as well as the bank guarantee were extended from time to time as requested and required by the NPCC and on request, the petitioner has extended the bid offer as well as the bank guarantee till 24.4.2020 with guarantee period till

24.7.2020. While so, on 3.1.2020, the NIT dated 4.1.2017 for construction of College of Food Technology at Lamphelpat was WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 10 cancelled by citing a very vague ground that there are some administrative reasons, without cogent explanation or reason.

14. It is also the say of the petitioner that notice of cancellation dated 8.1.2020 was issued only after cancellation order was issued. It is alleged that when the petitioner approached the respondents, he was informed that one Navpreet Sidhu submitted an application dated 24.11.2019 for termination of the work and consequently, the NIT has been cancelled. On 14.2.2020, the petitioner made a representation to the respondents requesting to restore the NIT for the work and to treat the termination letter of Navpreet Sidhu as null and void as the petitioner never authorised him to represent him with regard to the contract work. Further, despite the fact that the petitioner was L1 in the bidding of NIT dated 4.1.2017, the respondents have arbitrarily cancelled the NIT dated 4.1.2017 by issuing the impugned cancellation notice which is in violation of the principles of natural justice.

15. On the other hand, it is the say of the respondents that in the tender notification there is a particular clause that NPCC reserves right to reject any or all applications without assigning any reason therefor and that the letter written to the WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 11 petitioner by the NPCC clearly mentioned that mere asking for extension of his validity offer does not mean that the work was awarded to him.

16. It is also the plea of the respondents that since the tender in question was invited in pre GST era, a complex tax situation has arisen because of the anti-profiteering law of the GST and since the NPCC is facing complex tax calculation which may not be acceptable to the lowest bidder to avoid any ambiguity, the competent authority has decided to cancel the tender and invite a fresh tender as per the prevailing taxation.

17. It is not in dispute that as per Clause 9 of the pre- qualification criteria of NIT dated 4.1.2017, the respondent NPCC reserved its right to reject any or all applications without assigning any reason thereof. Further, as per Clause 10 of the pre-qualification, the acceptance of tender will rest with the respondent NPCC which does not bind itself to accept the lowest tender and reserves to itself the right to reject any or the entire tender received without assigning any reason thereof.

18. The main ground to challenge the impugned cancellation notice and the subsequent letter is that the bid offer WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 12 as well as the bank guarantee was extended till 24.4.2020 with guarantee period till 24.7.2020.

19. In last extension of guarantee dated

24.10.2019, it has been stated as under: “We hereby inform you that the Guarantee No.36492955667 issued 26/01/2017 renewed till 26/04/2019 and extended upto 26/10/2019 shall be further extended upto 24/04/2020 with the last date of lodgement of claims under this extension Guarantee being 24/07/2020. All other terms and conditions as appearing in the original Guarantee shall apply to this Extension Guarantee and it shall be read with the original Guarantee.”

20. It appears that in the meanwhile on 3.1.2020, the respondent NPCC issued cancellation notice dated 3.1.2020 thereby cancelling the NIT dated 4.1.2017 due to some administrative reasons, followed by the impugned letter dated

8.1.2020 requesting the petitioner to collect the EMD for the above NIT from the Zonal Office of NE Zone, Guwahati.

21. It is also the case of the respondents that on

24.11.2019, one Navpreet Sidhu, a representative of the WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 13 petitioner, has submitted an application for termination of the work. Though in the representation dated 14.2.2020, the petitioner has disputed the letter dated 24.11.2019 tendered by Navpreet Sidhu, the petitioner has failed to take any action against Navpreet Sidhu for submitting the termination letter without the knowledge of the petitioner.

22. If really, the representative of the petitioner has submitted the aforesaid termination letter without knowledge of the petitioner, the petitioner ought to have taken action against him. But the petitioner has failed to do so, which proves that only an afterthought, that too after issuance of the cancellation notice dated 3.1.2020, on 14.2.2020, the petitioner by changing his mind stated that he has not given any authority to Navpreet Sidhu to terminate the work or entrusted him to represent him with regard to the said contract work and it was all done with a mala fide intention to cause injury for the reason best known to him.

23. As could be seen from the records, subsequent to the cancellation of the NIT dated 4.1.2017, on 15.2.2020, the respondent NPCC issued NIT for construction of a hostel for men and construction of Type-2 quarters and transit WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 14 accommodation for faculty respectively. The NIT dated

15.2.2020 has also been challenged by the petitioner in W.P.(C) No.162 of 2020.

24. The acceptance of tender purely rests with the respondent NPCC which does not bind itself to accept the lowest tender and reserves to itself the right to reject any or the entire tender received without assigning any reason thereof. Further, the tender in which any of the prescribed conditions are not fulfilled or found incomplete in any respect is liable to be rejected.

25. It is the argument of learned counsel for the respondents that since the project is of national importance and for the benefit of the people of Manipur, quashing of the cancellation of the earlier tender as well as the invitation of fresh tender notification may not be called for and further in the fresh tender, the petitioner can also participate and, as such, the petitioner does not lose any opportunity. This Court finds some force in the said submission made by the learned counsel for the respondents.

26. That apart, as rightly argued by learned counsel for the respondents, since the NIT in question is of the year WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 15 2017 i.e. before the introduction of GST and now after more than 5 years and after the introduction of GST, there are many changes in all aspects resulting in a situation which is not feasible to proceed with the same old NIT of 2017 in the year

2022. In fact, in the last 5 years, the prices in all items, including the items involved in the project in question, have also increased drastically and in that situation it is highly impossible for any of the agencies participating in the said NIT to complete the project in the rate quoted in the year 2017. Further, the argument of the learned counsel for the respondents that if by assuming but not admitting the fact that the tender work is awarded to the petitioner for the said project, the quality of construction cannot be maintained by the rate quoted in the year 2017 and it will be a great loss to the public in general and to the Central Agricultural University in particular, cannot be brushed aside.

27. Clause 9 of the NIT dated 4.1.2017 stipulates that NPCC reserve right to reject any or all applications without assigning any reason thereof. In the instant case, as stated supra, the respondent NPCC has given reason for cancelling the NIT dated 4.1.2017 in its impugned cancellation notice dated 3.1.2020. As rightly argued by the learned counsel for WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 16 the respondents, mere extension of bid or bank guarantee, if any, the petitioner will not accrue any right to award tender in his favour. The extension of the bid was taken only because the approval from the petitioner to start the work had not been received and the tender inviting authority did not want to go into fresh process of re-tendering, the petitioner was requested time and again for the extension of his validity of his offer in his interest. However, in the letter issued by the respondent in regard to the request for extension of validity of EMO, it has been clearly mentioned that mere asking for extension of validity does not mean that the work was awarded to the petitioner. Therefore, as stated supra, the petitioner has no exclusive right or vested right to ask for awarding of tender in his name.

28. The argument of the learned counsel for the petitioner is that in view of the fact that he has qualified, the petitioner has a legitimate expectation and the law requires that the respondents ought to have given the petitioner an opportunity of being heard. However, the respondents have failed to do so. Therefore, the principles of natural justice has been violated and, as such, the two NITs dated 15.2.2020 deserve to be quashed. In support, the learned counsel for the WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 17 petitioner has placed reliance upon the decisions of the Apex Court in the cases of (i) Ram Pravesh Singh and others v. State of Bihar and others, (2006) 8 SCC 381 and (ii) Food Corporation of India v. M/s.Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71.

29. In Ram Pravesh Singh, supra, the Apex Court referring to the earlier decisions on the doctrine of legitimate expectation held as under: “16. In Union of India v. Hindustan Development Corpn, (1993) 3 SCC 499 this Court explained the nature and scope of the doctrine of “legitimate expectation” thus: (SCC p. 540, para 28) “For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 18 leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again distinguishable a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.”

17. This Court also explained the remedies flowing by applying the principle of legitimate expectation: (SCC pp. 546-47, para 33) “[I]t is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give relief straightaway the administrative authorities as no crystallised right as such is involved. The protection of such WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 19 legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person’s legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing overriding public interest. Therefore even if substantive protection of such expectation is contemplated that does not grant an absolute right to a particular person. It simply ensures the circumstances in which that expectation may be denied or restricted. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, instance, must satisfy that there is a foundation and thus has locus standi to make such a claim. In considering the same several factors which give rise to such legitimate expectation must be WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 20 present. The decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest. If it is a question of policy, even by way of change of old policy, the courts cannot interfere with a decision. In a given case whether there are such facts and circumstances giving rise to a legitimate expectation, it would primarily be a question of fact. If these tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether failure to give an opportunity of hearing before the decision affecting such legitimate expectation is taken, has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so then what should be the relief is again a matter which depends on several factors.””

30. In Kamdhenu Cattle Feed Industries, supra, the Apex Court held: “8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 21 weight it may render the decision arbitrary, and this is how the requirement of consideration a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein important considerations may outweigh what would otherwise have been legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.

31. There is no dispute that the doctrine of legitimate expectation entitled the person who is deprived of the said legitimate expectation sufficient locus standi for judicial review WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 22 and right of a fair hearing. However, in the case on hand, nothing has been produced by the petitioner to show that the respondents have intentionally evaded awarding of tender to the petitioner.

32. The scope of judicial review in matters of NIT and its cancellation and the issuance of fresh tender has been elaborately discussed and analysed by the Apex Court in the case of South Delhi Municipal Corporation v. Ravinder Kumar and another, (2015) 15 SCC 545, wherein it has been held: “18. By a careful examination of the impugned judgment and order1 of the High Court and the facts of the case on hand, the following aspects would emerge:

18.1. The High Court has failed to appreciate that the appellant Corporation’s decision of cancelling its earlier tender notice vide corrigendum dated 30-11-2012 was taken with a bona fide intention to serve the best interest of the Corporation ensuring that only a reasonable price is paid to the successful contractors for the works executed in the area as the money which it spends on getting such works done is public money. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 23

18.2. The High Court has not appreciated the fact that for the same financial year i.e. 2012- 2013 the department concerned of appellant Corporation has issued 72 other work orders for similar works in the adjacent areas of the Corporation and all of them were issued for much lower rates than the rates offered by both the respondents.

18.3. Further, the High Court has conveniently ignored the very relevant aspect of the case, namely, that the appellant Corporation, before issuance of a particular tender notice, is required satisfy itself reasonableness of the rates quoted by the bidders keeping in view the prevalent market rates in the Corporation area. The internal system for financial check by the department concerned of the appellant Corporation justifies the reasonableness of the rates offered by the bidders by comparing them with the rates at which other similar works were awarded by the appellant Corporation in the recent past in favour of successful bidders. For the aforesaid valid reason, the appellant Corporation being the custodian of public money, with bona fide intention to get the best price, has cancelled its earlier tender notice referred to supra and invited fresh bids by WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 24 issuing another tender notice dated 13-12-

18.4. Further, the High Court has not noticed another important aspect of the case, namely, that there are CVC Guidelines to ensure that the Corporation gets the best price for the execution of the works as per the said guidelines and to ensure the transparency in awarding the contracts in favour of successful bidders in the tender process the appellant Corporation decided to cancel its earlier tender notice and a subsequent tender notice dated 13-12-2012 was issued afresh by it for getting the same works done through successful contractors.

18.5. The High Court has erroneously quashed the Corporation’s decision of cancelling its earlier tender notice vide corrigendum dated 30-11-2012 on the wrong assumption that the department concerned of the appellant Corporation has prepared the justification of rates but in reality the same were never prepared by the department concerned of the appellant Corporation as the rates received from both the respondents were much higher than the rates at which similar works were awarded favour of successful bidders by it in the recent past. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 25

18.6. Further, the High Court has failed to consider another important Government being guardian of public finance it has the right to refuse the lowest or any other tender bid or bids submitted by the bidders to it provided its decision is neither arbitrary nor unreasonable as it amounts to violation of Article 14 of the Constitution of India. The appellant Corporation’s decision in cancelling its earlier tender is not in violation of Article 14 of the Constitution of India, as the High Court did not find any mala fide intention on the part the appellant Corporation favour someone taking such decision. The appellant Corporation’s decision in cancelling the earlier tender notice vide corrigendum dated 30-11-2012 and issuing a subsequent tender notice dated 13-12-2012 inviting fresh bids from eligible persons for the same works was with a bona fide intention to get better and reasonable rates from the bidders for the execution of the works and not to show favouritism in favour of any bidder.

18.7. The High Court has also failed to appreciate the relevant fact that the officials of the appellant Corporation made proper analysis about the rates quoted by both the respondents as the same were higher than the WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 26 usual market tendency and accordingly, they decided to cancel the entire tender process.

19. A careful reading of impugned judgment and order would show that none of the aforesaid aspects have been borne in mind by the High Court and it has failed to appreciate the same in a proper perspective while exercising its judicial review power. The High Court has erred in quashing the decision of the appellant Corporation regarding the cancellation of its earlier tender notice and also the subsequent tender notice issued afresh by it on 13-12-2012 for the same works.

20. For the reasons stated above, the High Court has failed to see that the appellant Corporation adopted a fair and transparent method by inviting the bids for the re-tender notice issued by it. The High Court has not found any mala fide intention on the part of the appellant Corporation in inviting the fresh bids after taking the decision to cancel its earlier tender notice. The appellant Corporation, being the custodian of public finance, took its decision objectively with a bona fide intention to serve the best interest of the public in general. Thus, for the foregoing reasons, the appellant Corporation has not committed any wrong in cancelling its earlier tender notice WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 27 and issuing subsequent tender notice afresh inviting bids from the eligible contractors.”

33. In Michingan Rubber (India) Limited v. State of Karnataka and others, (2012) 8 SCC 216, the Apex Court held: “21. In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 the following conclusion is relevant: (SCC pp. 531-32, para 22) “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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 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 WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 28 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: ‘the decision is such that no responsible authority acting reasonably and in WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 29 accordance with relevant law could have reached’; (ii) 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.”

34. Principles governing judicial review administrative decisions are now fairly well-settled by a long line of decisions rendered by the Apex Court. In Tata Cellular v. Union of India, (1994) 6 SCC 651, the Apex Court reiterated that judicial review would apply even to exercise of contractual powers by the Government and Government instrumentalities in order to prevent arbitrariness or favouritism. Having said that, the Apex Court noted the inherent limitations in the exercise of that power and declared that the State was free to protect its interest as the guardian of its finances. The Apex Court further held that there could be no infringement of Article 14 of the Constitution of India, if the Government tried to get the best WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 30 person or the best quotation for the right to choose cannot be considered to be an arbitrary power unless the power is exercised for any collateral purpose. The scope of judicial review observed by the Apex Court was confined to the following three distinct aspects: (i) Whether there was any illegality in the decision which would imply whether the decision making authority has understood correctly the law that regulars his decision making power and whether it has given effect to it; (ii) Whether there was any irrationality in the decision taken by the authority implying thereby whether the decision is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could be arrived at the same; and (iii) Whether there was any procedural impropriety committed by the decision WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 31 making authority while arriving at the decision.

35. It is trite law that judicial review of administrative action intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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 matter relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluation of 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.

36. It is also settled law that the Courts should be even more reluctant because most of us in Judges’ robes do not have WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 32 the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments, the Courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the Courts must give “fair play in the joints” to the Government and Public Sector Undertakings in matters of contract. Courts must also not interfere where such interference would cause unnecessary the public exchequer. [See M/s. N.G.Projects Limited v. M/s.Vinod Kumar Jain and others, (2022) 6 SCC 127].

37. The writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present- day economic activities of the State and this limitation should be kept in view. Court should be even more reluctant in interfering with contract involving technical issue as there is a requirement of necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 33 conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a mala fide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, first by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

38. In the instant case, it is not the case of the petitioner that the tender was awarded to any particular person by avoiding the petitioner or others. In the affidavit, the respondents stated that if the petitioner is a public spirited person, he should participate in the ongoing fresh tender instead of hindering the project. Thus, as a public spirited person, the petitioner can participate in the ongoing tender or fresh tender, if any.

39. On 4.3.2020, when W.P.(C) No.162 of 2020 was taken up for hearing, this Court passed the following interim order: WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 34 “Heard Shri B.R. Sharma, learned counsel appearing for the petitioner. According to the petitioner, an NIT dated 04- 01-2017 was issued by the National Project Construction Corporation Limited inviting sealed rate tenders. The petitioner being eligible, submitted his bid. The Technical bid was opened on 18-01-2017 as per the said NIT and the petitioner was asked to submit Earnest Money Deposit (EMD) which the petitioner did it. Thereafter, the National Project Construction Corporation Limited addressed a letter dated 26-05-2017 to the petitioner informing that the petitioner’s bid had been to be lowest and accordingly, he was requested to extend the period of offer. Such period of offer was extended from time to time at the request of the National Project Construction Corporation Limited. After waiting for more than 3 (three) years, the National Project Construction Corporation Limited issued a notice dated 03- 01-2020 cancelling the said NIT without any notice being given to the petitioner. Thereafter, on 08-01-2020, the petitioner was requested to collect the EMD for the said NIT. A fresh NIT was issued on 15-02-2020 and as per the list of important dates, the dateline of receiving WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 35 the bids is 09-03-2020 on which technical bids would also be opened. Being aggrieved by the said actions of the respondents, the instant writ petition has been filed by the petitioner praying for issuing a writ of certiorari or any other appropriate writ to quash the notice dated 03-01-2020, letter dated 08-01-2020 and NIT dated 15-02-2020. In view of the above, let notice be issued to the respondents, returnable on 17-03-2020. Steps be taken by the counsel appearing for the petitioner for service of notice upon the respondents by speed post. By way of an interim measure, it is directed that the technical bids of the both NITs dated 15-02-2020 (Annexure – A/8 and A/9) shall not be opened by the respondents without the leave of this court. A copy of this order shall be furnished to Shri B.R. Sharma, learned counsel appearing for the petitioner today provided he moves an application for it today itself.”

40. The respondent NPCC filed MC.No.111 of 2021 in W.P.(C) No.172 of 2020 to vacate the interim order dated

4.3.2020 stating that the earlier tender was cancelled and the WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 36 work was not given to any bidder. Moreover, the petitioner has been provided with enough opportunities to participate in the upcoming tender as per the prevailing terms and conditions of new tender.

41. It is to be pointed out that the petitioner has not applied for the NIT dated 15.2.2020 and he has applied only for the NIT dated 4.1.2017 for construction of College of Food Technology at Lamphelpat, Imphal. The issuance of NIT for construction of hostel for men and construction of Type-2 quarters and transit accommodation for faculty is different from the NIT dated 4.1.2017 and, therefore, the petitioner has no right to question the NITs 15.2.2020. Thus, this Court is of the view that the issuance of the cancellation notice dated 3.1.2020 and the subsequent letter dated 8.1.2020 and also the NITs dated 15.2.2020 do not call for any interference by this Court.

42. On a perusal of the records and as submitted by the learned counsel for the petitioner, the interim order dated

4.3.2020 passed in W.P.(C) No.162 of 2020 was not pressed for extension by the petitioner. In view of the non-extension of the interim order and the tender under challenge in W.P.(C) No.162 of 2020 was not given to any bidder, there is no hurdle WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 37 and no prejudice would be caused to the petitioner in allowing MC No.111 of 2021, as the interim order dated 4.3.2020 was not extended for quite long after 23.3.2020.

43. In so far as the prayer made in W.P.(C) No.123 of 2022 is concerned, the prayer of the petitioner in the said writ petition is to set aside the impugned NITs dated 28.1.2022 in the event of this Court allowing W.P.(C) No.162 of 2020. The challenge to the NITs dated 28.1.2022 was made mainly on the ground that the issuance of fresh NITs for construction of girls hostel; construction of boys hostel; construction of administration block and construction of type-II and transit camp for the College of Food Technology at Lamphelpat, Imphal is arbitrary and unreasonable and also amounts to scandalising this Court; interfering and obstructing administration of justice which is within the meaning of criminal contempt.

44. The learned counsel for the petitioner submitted that the interim order suspending the then NITs dated 15.2.2020 were not pressed for extension, because the respondents have expressed their intention to cancel the said NITs dated

15.2.2020 and that just because there is no stay order, the WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 38 respondents cannot act arbitrarily and unreasonably by floating new NITs when both the parties have accepted the jurisdiction and power of this Court to adjudicate upon the issues i.e. the NIT dated 4.1.2017 and the cancellation order dated 3.1.2020.

45. The aforesaid argument of the learned counsel for the petitioner cannot be appreciated for the reason that this Court in the earlier paragraph held that there is no arbitrariness in issuing the tender cancellation notice dated 3.1.2020 and the subsequent letter dated 8.1.2020, thereby cancelling the NIT dated 4.1.2017. Since the prayer of the petitioner in W.P.(C) No.162 of 2020 has been negatived by this Court, this Court is of the firm view that the prayer in W.P.(C) No.123 of 2022 to set impugned fresh NITs dated 28.1.2022 will automatically go and there is no need to elaborate the issue involved in the said writ petition any further.

46. On 16.2.2022, when W.P.(C) No.123 of 2022 was taken up for hearing, this Court directed the respondents not to take any further consequential steps with effect from today in respect of the NITs dated 28.1.2022 and the said interim order continues. WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 39

47. The respondent NPCC filed MC.No.96 of 2022 to vacate the said interim order stating that in compliance with the interim order, no consequential steps were taken by them in respect of NITs dated 28.1.2020. It is also stated that as the project is of national importance and for the benefit of the people of Manipur staying of the opening of the technical bids of the NITs may be revoked and permission may be granted to proceed the fresh tender where the petitioner can also participate.

48. In view of the stand taken by the respondents and as discussed above, the respondents may proceed further by issuing a fresh tender, where the petitioner can also participate and the petitioner cannot delay the project of the national importance unnecessarily by filing writ petition after writ petition without any legal right.

49. For the foregoing discussions, this Court is of the view that both the writ petitions fail and, accordingly, the same are liable to be dismissed.

50. In the result, WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022 P a g e | 40 (1) W.P.(C) Nos.162 of 2020 and 123 of 2022 are dismissed. (2) The interim order already granted this Court the said writ petitions vacated M.C.(WP) No.111 of 2021 W.P.(C) No.162 of 2020 and M.C.(WP) No.96 of 2022 in W.P.(C) No.123 of 2022 are allowed. (3) The amount deposited by petitioner by way of EMD/Bank Guarantee may be refunded with interest. (4) There will be no order as to costs. FR/NFR Sushil JUDGE WP(C) No. 123 of 2022, WP(C) No. 162 of 2020, MC(WP(C)) No. 111 of 2021 and MC(WP(C)) No. 96 of 2022