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Judgment
The matter is taken up through video conferencing.
Heard Mr. K.N. Choudhury, learned senior counsel and Mr. I. Chowdhury, learned senior counsel, appearing for the appellants. Also heard Mr. S.
Borgohain, learned counsel appearing for the respondent Nos.1 to 4 in Writ Appeal No.359/2021.
All these four writ appeals have been filed against the common judgment & order dated 15.12.2021 passed by the learned Single Judge in WP(C)
No.52(K)/2020; WP(C) No.93(K)/2021 and WP(C) No.94(K)/2020. While Writ Appeal No.359/2021; Writ Appeal No.360/2021 and Writ Appeal
No.3/2022 have been filed by a private limited company, Writ Appeal No.361/2021 has been filed by the State of Nagaland.
For construction of a road from “Tening to Lekie†in Nagaland covering 37.50 Kms, a Notice Inviting Tender (NIT) was issued on 13.09.2019 by
the Public Works Department of the State of Nagaland. Both M/s Naagaami Infratech Private Limited and Joint Venture Construction were the
participants in the said tender process. It was a two bid tender, i.e. technical and financial. Both M/s Naagaami Infratech Private Limited and Joint
Venture Construction had qualified the technical bid and thereafter, Joint Venture Construction was declared as L-1 in the tender process. Since the
work order was not being issued and the contract was not being executed in favour of Joint Venture Construction, M/s Hi-Tech Construction &
Company (one of the constituents of Joint Venture Construction), was constrained to file a writ petition before the learned Single Judge at Kohima
Bench, being WP(C) No.249(K)/2019. Notices were issued in the said writ petition. During the pendency of the said writ petition, the State of
Nagaland cancelled the tender process on 16.12.2019 and issued another NIT on 18.12.2019 for the same project. This was challenged by M/s Hi-
Tech Construction & Company before the learned Single Judge. At this juncture, we must also state that Joint Venture Construction (respondent No.1
in Writ Appeal No.359/2021, Writ Appeal No.360/2021 and Writ Appeal No.361/2021) is a joint venture which has three constituents and there is a
dispute as to how many of them had actually filed the writ petition, etc., but that is a separate issue altogether.
Meanwhile, the appellant M/s Naagaamii Infratech Private Limited as well as the Joint Venture Construction participated in the second tender process
which was initiated on 18.12.2019 and in this tender process M/s Naagamii Infratech Private Limited was declared as L-1 and was issued Letter of
Acceptance (LoA) on 16.03.2020. This was challenged by M/s Hi-Tech Construction & Company before the learned Single Judge. The learned
Single Judge after hearing the parties, disposed of the writ petition finally by the common judgment & order dated 15.12.2021. By the said judgment &
order, the conclusion arrived at by the learned Single Judge was that withdrawal of the first tender process was itself illegal and since admittedly in the
said tender process Joint Venture Construction was L-1, a mandamus was issued to the State of Nagaland to execute the contract in favour of Joint
Venture Construction. This judgment & order has been challenged by the State of Nagaland and M/s Naagaamii Infratech Private Limited before this
Court.
The contention of Mr. K.N. Choudhury, learned senior counsel appearing for M/s Naagaamii Infratech Private Limited and Mr. I. Chowdhury,
learned senior counsel appearing for the State of Nagaland is that as far as the first tender process was concerned, the same was withdrawn on
16.12.2019. The learned counsels have taken us to the conditions in the Standard Bidding Document (SBD), which gives power to the employer to
reject the bids and cancel the contract without assigning any reason. Clause 2.16.1 of the SBD reads as under:
“2.16.1 Notwithstanding anything contained in this SBD, the Employer reserves the right to reject any BID and to annul the Bidding Process and
reject all BIDs at any time without any liability or any obligation for such acceptance, rejection or annulment, and without assigning any reasons
thereof. In the Event that the Employer rejects or annuls all the BIDs, it may, in its discretion, invite all eligible Bidders to submit fresh BIDs
hereunder"".
Mr. I. Chowdhury, learned senior counsel states that the State of Nagaland by means of a corrigendum dated 16.12.2019 published on its website had
also assigned reasons for cancelling the first tender process. As per the corrigendum, there were large number of irregularities in the bid documents
submitted by the bidders which led to cancellation of the entire tender process. Mr. I. Chowdhury, learned senior counsel further apprised this Court
that one of the reasons for cancelling the tender process was that many of the numbers of the vehicles which were shown to be trucks were actually
small utility vehicles and, therefore, there was a doubt as to whether the company which would be given the contract will actually be able to carry on
the work.
Be that as it may, the fact remains that the employer always has a liberty to cancel a tender process. Undoubtedly, M/s Naagaamii Infratech Private
Limited was L-1, but the offer of L-1 was only in the nature of an offer and till it was accepted by the employer, i.e. the State of Nagaland, no
contract had actually been finalised. The employer can always withdraw the tender, particularly when powers have been given to it in Clause 2.16.1
of the SBD. Moreover, it is not a simple case of withdrawal but here reasons for withdrawal were also assigned, which appear to be cogent reasons.
Therefore, we are of the considered view that cancellation of the first tender process on 16.12.2019 cannot be faulted, as the same has been done in
accordance with law. From a perusal of the judgment & order of the learned Single Judge also, we do not find that the learned Single Judge has gone
into the anomaly and defect in the second bidding process. The primary reason assigned by the learned single Judge is that the first tender process
should not have been cancelled and since in that process M/s Naagaami Infratech Private Limited was L-1, such a direction had been given.
Mr. S. Borgohain, on the other hand, would argue that elaborate submissions were made before the learned Single Judge. The information which he
had received through RTI and various other sources about the capability of M/s Naagaamii Infratech Private Limited were placed before the learned
Single Judge. It had also been submitted before the learned Single Judge that the writ appellant, i.e. M/s Naagaamii Infratech Private Limited, was not
even a technically qualified bidder and, therefore, it was not liable to be given the contract. However, since this aspect has not been examined by the
learned Single Judge, inasmuch as, the learned Single Judge has not gone into the technical viability, capability and other aspects of M/s Naagaamii
Infratech Private Limited as well as Joint Venture Construction, we deem it proper to remand the matter back to the learned Single Judge for a fresh
appraisal. We, however, make it very clear that this should be done only as regarding the second tender process which was initiated by the NIT dated
18.12.2019 and the eligibility of M/s Naagaamii Infratech Private Limited as L-1 and the contract being given in its favour shall be examined by the
learned Single Judge.
The judgment & order dated 15.12.2021 passed by the learned Single Judge in WP(C) No.52(K)/2020; WP(C) No.93(K)/2021 and WP(C)
No.94(K)/2020 is hence set aside. The matter is remanded back to the learned Single Judge for a fresh appraisal.
All the parties would be at liberty to raise all legal and factual aspects before the learned Single Judge, which shall be decided in accordance with law.
Since the matter has already taken more than two years, we request the learned Single Judge to dispose of the matter as early as possible after
hearing the matter on a daily basis, if possible.
The parties would be at liberty to file necessary pleadings before the learned Single Judge.