Dayal Das Jogesh Das JV vs State Of Assam & Ors.

The instant application has been filed under Article 226 of the Constitution of India in connection with a tender process in which the petitioner along with the respondent no. 4 had participated. The grievance of the petitioner is that the respondent no. 4 has been declared to be technically responsive in spite of the fact that the said respondent no. 4 did not have the requisite qualification in terms of the tender documents.

As per the facts projected, the respondent no. 3 had issued a Notice Inviting Tender dated 16.02.2026 for improvement and up-gradation of a road under the Asom Mala 3.0 scheme. The petitioner who claims to be eligible had participated in the tender process and the bids of the petitioner and the respondent no.4 were found to be technically responsive. The petitioner has however alleged that such qualification of the respondent no. 4 was done illegally as the respondent no. 4 had failed to comply with the necessary requirements. It is specifically averred that the respondent no. 4 could not fulfil the requirement of Clause 4.3 (h) of the bid document. It is submitted that under the aforesaid clause, there is a requirement to submit complete financial reports for the last five years and it is alleged that for the financial years 2024-25 and 2021-22, the respondent no.4 did not submit such financial reports. There has also been an allegation that there are manipulation and misrepresentation in the financial data furnished by the respondent no. 4. It is alleged that there has been a manipulation of the turnover from Rs.8.85 crore to Rs.22.85 crore to meet the minimum eligibility threshold. The petitioner also alleges that in spite of submission of a legal notice on 01.06.2026, no corrective action was taken and there was information that the Award of the contract was likely to be given to the respondent no. 4 who had emerged as the lowest bidder. Accordingly, the writ petition has been filed.

I have heard Shri D. Das, learned Senior Counsel assisted by Shri P. K. Sharma, learned counsel for the petitioner. I have also heard Shri A.K. Bhuyan, learned Senior Counsel assisted by Shri N.R. Sharma, learned counsel for the BTC and Shri S. Hoque, learned counsel for the respondent no. 4.

Shri Das, the learned Senior Counsel for the petitioner has submitted that under Clause 4.3 (h) of the tender document, there is a requirement for fulfilling the financial standing by submission of profit and loss statement, auditor’s report etc. He has submitted that the respondent no. 4 does not have five years profit and loss statement as required by the aforesaid clause. He has referred to the pleadings in paragraph 9 on this point. He has also referred to the response of the BTC in its affidavit filed, more particularly, paragraph 14 thereof which is contented to be not a complete denial. As regards the certificate of the Chartered Accountant dated 11.06.2025 of the respondent no. 4, the learned Senior Counsel for the petitioner has submitted that in absence of profit and loss account statement, such certificate cannot be considered. He has also referred to the pleadings made by the petitioner in the affidavit in reply.

He has also referred to the Income Tax Return of the respondent no.4 for the year 2021-22 and the balance sheet of the respondent no.4 along with the profit and loss account. He has submitted that there is no auditor’s report and no reports have been filed so far as the years 2021-22 is concerned. He has, in this regard referred to Section 44AB of the Income Tax Act, 1961. As regards the profit and loss account, the learned Senior Counsel for the petitioner has submitted that so far as the year 2024-25 is concerned, no documents have been submitted by the respondent no.4 and specific pleadings have been made in this regard. He has submitted that the BTC authorities had acted arbitrarily and unreasonably in construing the bid of the respondent no. 4 as technically responsive. He has also drawn the attention of this Court to Clause 4.7 of the tender document which is on the aspect of the consequence of misleading or giving false representation. He has made a specific allegation that there is interpolation in the figures for the year ending 31.03.2023. He has also submitted that there is a difference of the UDIN numbers which would prima facie show that the documents are interpolated. On this aspect, he has drawn the attention of this Court to paragraph 10 of the writ petition. He has also submitted that there is no specific denial of this allegation by the BTC in the affidavit-in-opposition. He has submitted that there are glaring discrepancies in the figures and therefore the bid of the respondent no. 4 ought to have been declared as technically non responsive. By drawing the attention of this Court to the affidavit-in-opposition of the respondent no.4, more particularly, paragraph 6 thereof, the learned Senior Counsel for the petitioner has submitted that there is no specific denial.

On the stage on which the petitioner has approached the Court, the learned Senior Counsel submitted that on 30.05.2026, the matter was uploaded in the portal regarding the technical responsiveness upon which, the petitioner had approached the respondent authorities but no action was taken. This was followed by a legal notice dated 01.06.2026 and on the next date i.e., 02.06.2026, the petitioner had visited the office and came to know that the financial bids were opened. Immediately, thereafter the writ petition was filed. The learned Senior Counsel has also drawn the attention of this Court to Clause 23.8 (iii) and has submitted that there is a duty to inform about the technical responsiveness and the date of opening of the financial bids and the said Clause has been violated. In this regard, he has referred to the connected pleadings in paragraph 18 of the writ petition that no information was given to the petitioner.

In support of his submission, the learned Senior Counsel for the petitioner has relied upon the decision of Banshidhar Construction (P) Ltd. vs. Bharat Coking Coal Ltd. reported in (2024) 10 SCC 273. He has submitted that in the said case, the Hon’ble Supreme Court after discussing the relevant case laws holding the field has laid down the necessity of transparency and fairness in matters of distribution of State largesse. He has submitted that the decision making process is flawed wherein undue benefit has been sought to be given to the respondent no. 4 which requires intervention by this Court.

Per contra, Shri Bhuyan, the learned Senior Counsel appearing for the BTC has strenuously opposed the writ petition. He has also submitted that not only the facts have been misrepresented, there has also been misinterpretation of the clauses of the Tender document. He has submitted that on 17.02.2026, the NIT was published which was by e-mode. He has submitted that all bids were submitted by the last date which was 02.03.2026 and the documents were on public domain. On 27.05.2026, the technical bids were evaluated followed by the evaluation of the financial bids which were opened on 30.05.2026. He has submitted that all these facts have not been transparently conveyed in the writ petition and the major aspect that the financial bid of the respondent no. 4 is lower than the financial bid of the petitioner by about Rs. 51,00,000/-(Rupees Fifty One Lakhs) has not been revealed. He has submitted that though a legal notice was issued on 01.06.2026, without even giving a chance to the BTC, on 04.06.2026, the writ petition was moved and an interim order was passed by this Court.

With regard to the allegations made on the bid of respondent no. 4, Shri Bhuyan, the learned Senior Counsel for the BTC has submitted that such allegations, prima facie are erroneous and without any basis. He has submitted that under the relevant Clause 4.3 (h), there is a requirement to file the reports on the financial standing of the bidder for the last 5 years and respondent no. 4 has fulfilled the said requirement. He has drawn the attention of this Court that as regards submission of the profit and loss account, the same would be governed by Section 44 AD of the Income Tax Act which provides that when the annual turnover is less than Rs. 2 Crore, such profit and loss statement is not required. He has submitted that under Clause 4.5 A, there is a requirement to have 50% of the DNIT value in anyone year in the past five years and the respondent no. 4 fulfils this requirement. He has also drawn the attention of the Court to the certificate issued by the Chartered Accountant for the four financial years. He has submitted that the certificate of a Chartered Accountant can be treated as a primary document. As regards the allegation that the UDIN numbers are different, the learned Senior Counsel for the BTC has submitted that such allegation is a fallacious one as these certificates are issued by two different Chartered Accountants who has distinct and different UDIN numbers. He has submitted that there is no misrepresentation by the respondent no. 4 which would have made his bid technically non responsive. As regards the submissions made regarding violation of Clause 23.8, the learned Senior Counsel for the BTC has submitted that such clause would not come into operation inasmuch as the present process was by e-mode. He has submitted that all data were available in the public domain. Further, there is no mention at all in the legal notice regarding such non communication. He has drawn the attention of this Court to the averments made in paragraph 21 of the affidavit-in-opposition that everything was available on online mode.

In support of his submission, the learned Senior Counsel for the BTC has relied upon the following decisions of the Hon’ble Supreme Court:

In Bharat Coking Coal Ltd (supra), the Hon’ble Supreme Court has laid down that there is a difference with regard to the interpretation of contractual clause from interpretation of statute. The following observations have been pressed into service:

The case of Raunaq International (supra) has been relied upon with regard to the aspect of delay caused by interim orders passed in petition by unscrupulous litigants whereby public interest is adversely affected.

The learned Senior Counsel for the BTC has submitted that under such facts and circumstances, the writ petition is required to be dismissed and the interim order be vacated.

Supporting the submission made on behalf of the BTC, Shri Hoque, the learned counsel for the respondent no.4 has submitted that his client has fulfilled the requirements of the tender conditions. He has submitted that there is a requirement to submit documents regarding the financial strength for the last five years. He had also endorsed the submission that under the Income Tax Act, it is not mandatory to have a profit and loss account when the turnover is less than Rs.2 crore annually. He has also submitted that under Clause 4.5 A, the requirement is to have 50% of the value in any of the years which the respondent no. 4 fulfils. He has submitted that in one of the years, the requirement is Rs. 22.85 crore and 50% of the same is Rs. 11.6 crore which is more than the present tender value. He has specifically submitted that for the years 2020-21 and 2021-2022, the turnover is less than Rs. 2 crores and therefore, there is no requirement to have a profit and loss statement. He has also submitted that the present work was floated on two earlier occasions in which the petitioner could not compete whereafter they had formed a joint venture. He has submitted that different Chartered Accountants has different UDIN and therefore, the allegation made in this regard is wholly unfounded. He has in fact submitted that so far as the petitioner’s document is concerned for the period 2022-23 there is no UDIN number.

The rival submissions have been duly considered and the materials placed before this Court including the records have been carefully examined.

The dispute raised in this present writ petition is on the aspect of the technical responsiveness of the respondent no. 4 pertaining to the NIT dated 17.02.2026. It is not in dispute that the said NIT was on e-mode and all submissions were also necessarily to be done in the e-format. The learned Standing Counsel, BTC has emphatically stated that such submission of documents being in the e-format, those were available in the public domain. From the records placed before this Court, it appears that technical bids were opened on 27.05.2026 and it presupposes that such opening being done in e-mode which was in public domain. The bids of the petitioner as well as the respondent no.4 were found to be technically responsive. The records also disclose that the financial bids were opened on 30.05.2026 and the difference in the price was found to be approximately Rs. 51 Lakhs in which the bid of the respondent no. 4 was found lower than the bid of the petitioner. Though the petitioner has alleged that on 01.06.2026, the legal notice was submitted and on 04.06.2026, the writ petition was moved, it is not disclosed in the writ petition that on 30.05.2026, the financial bids were indeed opened. On the other hand, the petitioner had disclosed that they had information that the financial bid of the respondent no. 4 was lower than that of the petitioner and therefore, there was likelihood that the work order would be issued to the respondent no. 4 with the allegation that the technical bid of the respondent no. 4 was not responsive. It clearly appears that under such submission, this Court, vide order dated 04.06.2026 had passed an interim order.

The controversy would hinge around Clause 4.3 (h) of the tender document. To appreciate the same, it would be convenient to extract the said clause which reads as follows:

The aforesaid Clause is with regard to certain pre-qualification where all bidders were required to furnish certain information which includes reports on the financial standing of the bidder such as profit and loss statement, auditor’s report for the past five years. The use of the expression “such as” would mean that the same is illustrative in nature and cannot be held to be mandatory. Nonetheless, it is not in dispute that the financial standing of the respondent no. 4 was not furnished to the authorities by the said respondent no. 4. The specific allegation is that the respondent no. 4 did not give profit and loss statement for two years. The response of the authorities is that there is no legal requirement under the Income Tax Act for having a profit and loss account if the annual turnover is less than Rs.2 crore. From the records made available, it is seen that for the concerned years 2020-21 and 2021-22, the annual turnover of the respondent no. 4 was less than Rs.2 crore and therefore, there was no mandatory requirement to have a profit and loss statement for the aforesaid 2 (two) years. The aspect of financial standing of the bidder however is a mandatory requirement which cannot be ignored. It is not in dispute that for the last five financial years, the respondent no. 4 had indeed given documents including the certificate of the Chartered Accountant. Such certificate by a Chartered Accountant has legal force. The only allegation was that there was a difference in the UDIN numbers. While the said allegation regarding the difference is factually correct, a close perusal of the two certificates would show that those are issued by 2 different Chartered Accountants who necessarily would have two distinct and separate UDIN. Therefore, the said submission cannot be countenanced.

There is also an allegation that there is interpolation in the figures pertaining to the financial documents of the respondent no. 4. Such allegation, even if it has any basis is to be raised in the appropriate forum. This Court would not have the expertise to make any comment on the factual part, more so, when the same is strenuously disputed. It also appears that the documents were scrutinized by the respondent authorities and they had come to a satisfaction that the respondent no. 4 fulfils the technical requirements and therefore, had held the bid of the respondent no. 4 to be technically responsive. This Court has also noted that there is a requirement to have met 50% of the value of the contract in anyone of the last five years which admittedly the bid of the respondent no. 4 fulfils.

As regards the law holding the field, it is trite that all process of distribution of State largesse has to be preceded by a transparent and fair method. In the instant case the method adopted by issuing NIT on e-mode cannot be said to be unfair or not transparent. In fact the petitioner himself had participated and was also found to be technically responsive. The action of the authorities in holding the bid of the respondent no.4 as technically responsive appears to be based on the relevant materials including the documents submitted by the respondent no. 4 along with the bid. This Court is of the prima facie view that the said decision cannot be said to be unreasonable or arbitrary and rather this Court is of the opinion that the decision is based on the relevant materials. This Court in exercise of certiorari jurisdiction is only confined with the aspect of examining the decision making process. In the present decision making process, this Court does not find that the same is vitiated by any arbitrariness or unreasonableness. This Court has also noted that the method was a transparent one and everything was in public domain as admittedly the process was by e-mode. This Court is also concerned with the aspect that though the writ petition was moved on 04.06.2026, the financial bids were already opened on 30.05.2026 and this important fact was not brought to the notice of this Court leading to passing of an interim order.

The aspect that the price bid of the respondent no. 4 is lower than that of the petitioner by about Rs. 51 lakhs is a relevant factor and is directly connected with public interest. In this connection, one may gainfully refer to the decision of this Court in the case of Dhaniram Gogoi Vs. State of Assam reported in 1998 (4) GLT 37 wherein it has been held that public interest is of paramount consideration for settlement. This Court in the case of Tarun Bharali Vs. State of Assam reported in (1991) 2 GLR 296, has categorically held that in matters of settlement price plays an important role as the paramount factor is public interest.

Under the aforesaid facts and circumstances and the discussions made, this Court is of the opinion that no case has been able to be made out by the petitioner which requires interference and accordingly, the writ petition is dismissed. The interim order passed earlier stands vacated.

No orders as to cost.

The original records are returned back to the learned Standing Counsel.