Dismissed

M/S Naga Builders and Suppliers v. the State of Nagaland and 5 Ors.

Gauhati HC18 Aug 2022WP(C)/96/2022

Case brief

AI extract

What is this about?

A limited tender award for six prefabricated stadiums was challenged for lack of newspaper publication. The Court found that the challenger had not established eligibility or an infringed legal right. Despite nonconformity with prescribed tender norms, it declined to rescind the ongoing contract on public-interest grounds and dismissed the petition.

What the court decided

AI extract

M/S Naga Builders and Suppliers Vs the State… — Public Procurement and Tenders | Gauhati HC (2022)

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Page No.# 1/42

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GAHC020002622022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH

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Case No. : WP(C) 96/2022

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1:M/S NAGA BUILDERS AND SUPPLIERS

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REPRESENTED BY ITS PROPRIETOR MR. INATO SEMA, SON OF MR. ASHETO SEMA, R/O H.NO. 193, ERALIBILL VILLAGE, DIMAPUR, NAGALAND

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VERSUS

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1:THE STATE OF NAGALAND AND 5 ORS

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REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERBMENT OF NAGALAND, NAGALAND KOHIMA

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2:THE SECRETARY DEPARTMENT OF YOUTH RESOURCES AND SPORTS GOVT. OF NAGALAND NAGALAND KOHIMA

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3:THE DIRECTOR DIRECTORATE OF YOUTH RESOURCES AND SPORTS KOHIMA NAGALAND

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4:THE SECRETARY PUBLIC WORKS DEPARTMENT (PWD) GOVT. OF NAGALAND

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5:THE CHIEF ENGINEER PUBLIC WORKS DEPARTMENT(PWD) GOVT. OF NAGALAND KOHIMA NAGALAND

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6:M/S INFRASTRUCTURAL DEPARTMENT CONSORTIUM

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Page No.# 2/42

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CENTRE POINT ESTATE KHYNDAILAD POLICE BAZAAR SHILLONG MEGHALAYA-79300

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Advocate for the Petitioner : N. MOZHUI

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Advocate for the Respondent : GOVT ADV NL

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BEFORE HON'BLE MR. JUSTICE MANISH CHOUDHURY

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JUDGEMENT & ORDER (CAV)

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Date : 18-08-2022

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The petitioner has instituted the writ petition under Article 226 of the Constitution of India seeking inter alia setting aside and quashing of an work order bearing no. CE[H]/TB/YRS/SA[Central]/2022/19 dated 25.03.2022 [hereinafter referred to as ‘the Work Order’, for short] whereby a ContractWork, described in detail hereinbelow, has been awarded in favour of the respondent no. 6 herein and also for a direction to the State respondents to issue a fresh Notice Inviting Tender [NIT] for the said Contract-Work.

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The events which, according to the petitioner, have led the petitioner to institute the writ petition can be stated as follows :-

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2.1. The petitioner, M/s Naga Builders & Suppliers [also

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Page No.# 3/42 referred to as ‘the petitioner firm’ hereinafter at places, for convenience] is a proprietorship firm based at Dimapur, Nagaland. The petitioner firm has stated that it carries out supplies and works contracts all over the State of Nagaland. The petitioner firm has claimed that it is a duly registered Class – I Government Contractor & Supplier with registration no. NPW/Class-I/1040. It has further asserted that its registration under the Goods and Services Tax [GST] regime is 13CSDPS0015E3ZB.

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2.2. In the month of May, 2022, the petitioner had come to learn that the respondent no. 6 had been awarded the ContractWork relating to construction of pre-fabricated indoor stadiums and/or pre-fabricated indoor stadiums-cum-multipurpose halls at six different places in Nagaland. On making queries, it had further come to learn that the said Contract-Work under the Department of Youth Resources & Sports [YSR], Government of Nagaland was awarded to the respondent no. 6 by the implementing agency, Public Works Department [Housing], Government of Nagaland without circulating/publishing any Notice Inviting Tender [NIT] in newspapers. The Contract-Work had been awarded to the respondent no. 6 without giving any opportunity to the other eligible contractors including the petitioner, to participate in the tender process.

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2.3. In order to get the details, the petitioner submitted an application under the Right to Information [RTI] Act, 2005 on 16.05.2022 before the Public Information Officer [P.I.O.] of the office of the respondent no. 5. The P.I.O. of the office of the

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Page No.# 4/42 respondent no. 5 supplied the necessary information to the petitioner on 02.06.2022. From the information so received, the petitioner got convinced that the NIT was not published in the local media but it was only issued in the Departmental notice board. Only 3 [three] bidders submitted their bids in response to the NIT and the tender papers were opened on 23.03.2022. A comparative statement was prepared and thereafter, the respondent no. 6 was recommended to execute the ContractWork. Accordingly, the Work Order [supra] was issued in favour of the respondent no. 6 at a Contract Value of Rs. 20,38,85,600/- on 25.03.2022.

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2.4. By making the above contentions, the petitioner has instituted this writ petition on 06.06.2022.

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When the writ petition was moved on 07.06.2022, notices were issued to the respondents making the notices returnable in 4 [four] weeks. It was further provided that till the returnable date, the respondents shall not take any further steps towards construction of the stadiums given in the Work Order. Aggrieved by the interim order dated 07.06.2022, the respondent no. 6 who has been awarded the Contract-Work, preferred an interlocutory application, I.A.[Civil] no. 83/2022 seeking modification/alteration/vacation of the interim order dated 07.06.2022. The said interlocutory application, I.A.[Civil] no. 83/2022 came to be considered on 21.06.2022 and after hearing the learned counsel for the parties and considering the materials placed on record, the interim order dated 07.06.2022 was vacated

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Page No.# 5/42 and the interlocutory application, I.A.[Civil] no. 83/2022 was accordingly disposed of. One of the prime considerations for vacating interim order was the extent of progress of the ContractWork on the date of passing the interim order. Aggrieved by the vacation of the interim order, the petitioner preferred an intracourt appeal, Writ Appeal no. 14/2022 against the order dated 21.06.2022 passed in I.A.[Civil] no. 83/2022, arising out of the writ petition. The writ appellate court after hearing the learned counsel for the parties, disposed of the writ appeal by order dated 29.06.2022 without interfering with the order dated 21.06.2022 passed in I.A.[Civil] no. 83/2022. The Division Bench while disposing of the writ appeal, asked all the parties to file their pleadings within stipulated time period so that the writ petition could be considered for final adjudication.

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I have heard Mr. N. Mozhui, learned counsel for the petitioner; Ms. Levika, learned State Counsel for the respondent nos. 1 to 5; and Mr. Taka Masa, learned Senior Counsel assisted by Mr. Arenlong, learned counsel for the respondent no. 6.

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The prime contention that has been urged by Mr. Mozhui, learned counsel for the petitioner is that the NIT for the Contract-Work in question was never published in any newspaper and as such, the entire process undertaken leading to the award of the Contract-Work vide the Work Order bearing no. CE[H]/TB/YRS/SA[Central]/2022/19 dated 25.03.2022 has stood vitiated being arbitrary and contrary to the manner required to be followed in distribution of State largesses. Therefore, the Work

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Page No.# 6/42 Order is liable to be set aside and quashed and the respondent authorities should be directed to undertake the tender process afresh by issuance of a fresh NIT so that all the eligible bidders including the petitioner, can participate in such tender process.

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5.1. It has been submitted by Mr. Mozhui, learned counsel for the petitioner that there was slight delay on the part of the petitioner in approaching the Court but such delay was not intentional as the petitioner came to learn about the nature of tender process followed and award of the Contract-Work belatedly due to non-publication of the NIT in the newspapers. Though by the time the petitioner approached the Court there was purportedly some progress made by the respondents in executing the Contract-Work but such progress shall not deter this Court to interfere with the Contract-Work as the very initiation of the tender process was fraught with illegality and arbitrariness. By referring to the decision in Yikhyao Lotha vs. State of Nagaland and others, reported in 2014 [4] GLT 871, he has submitted that this Court in that case had interfered with an already awarded contract work despite it was found to have progressed to an advanced stage of execution. It is submitted by him that the interference was made when the process was found to be in violation of Clause 291 of the Nagaland Public Works Department [NPWD] Code.

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5.2. Mr. Mozhui, learned counsel for the petitioner in support of his submissions referred to the decisions in [i] Nagar Nigam, Meerut vs. Al Faheem Meat Exports [P] Ltd. and others, reported in

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Page No.# 7/42

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[2006] 13 SCC 382; and [ii] Jagdish Mandal vs. State of Orissa and others, reported in [2007] 14 SCC 517,.

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In response, learned State Counsel and learned Senior Counsel for the respondent no. 6 have both raised a preliminary objection on the maintainability of the writ petition questioning the locus of the petitioner to institute the writ petition apart from a post of other contentions.

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6.1. Mr. Taka Masa as well as Ms. Levika has submitted that there was inordinate delay on the part of the petitioner in approaching the Court in relation to the Contract-Work. Specifically mentioning the fact that the writ petition was instituted on 06.06.2022, they have submitted, in similar lines, to the effect that the Work Order was issued as far back as on 25.03.2022 and by the time the writ petition was instituted, the respondent no. 6 had achieved substantial progress in execution of the Contract-Work. They have placed a progress report/present status of the Contract-Work, as on 04.06.2022, to submit that by the time the writ petition was instituted, an amount of Rs. 8,34,91,153/- had already been released against the financial progress and physical progress made towards executing the Contract-Work. They have alleged about suppression of material facts on the part of the petitioner by misrepresenting in the writ petition that no work was carried out against the Contract-Work till the date of institution of the writ petition. According to them, the writ petition is liable to be dismissed on the ground of suppression of material facts. It is their submission that for the

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Page No.# 8/42 very same reason, the interim order passed at the stage of motion was, later on, vacated by the order dated 21.06.2022 which when challenged by the petitioner, the writ appellate court did not interfere with the same. As a result, the respondent no. 6 continued with the execution of the Contract-Work and in respect of all the stadiums, it has cumulatively achieved physical progress above 45%, as on 18.07.2022, and out of the 6 [six] stadiums, the physical progress is more than 50% in respect of 4 [four] of the stadiums.

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6.2. The learned counsel for the respondents have taken the stand that the writ petition is filed with suppression of material fact by wrongly stating that there was no progress made with the Contract-Work, as on the date of institution of the writ petition. Reliance is placed in the decision in K.D. Sharma vs. Steel Authority of India Limited and others, reported in [2008] 12 SCC 481.

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6.3. In so far as the issue regarding violation of the NPWD Code is concerned, the learned counsel for the respondents have submitted that it was not the pleaded case in the writ petition that there was any violation of the NPWD Code. The point regarding violation of the NPWD Code has been raised only at the time of hearing of the writ petition. The specific stance of the learned counsel for the respondent is that had that aspect been pleaded earlier in the writ petition, the respondents could have controverted the same in their pleadings. Thus, it is not open for the petitioner to urge an issue which has not been pleaded in the

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Page No.# 9/42 writ petition. In that view of the matter, the reference to the decision in Yikhyao Lotha [supra] is misplaced. It is the further submission that the decision in Yikhyao Lotha [supra] has not considered the aspect of public interest and a number of precedents while making the interference.

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6.4. Mr. Taka Masa, learned Senior Counsel has contended that even assuming that there was violation of Clause 291, NPWD Code, then also the Court while exercising the power of judicial review in contractual matters is required to look into the element of public interest. If any interference made in its discretionary jurisdiction is likely to affect the public interest then the Court is required to exercise restraint keeping the larger public interests in mind. Any intervention at this stage would delay the execution of the Contract-Work apart from huge escalation in the cost. He has referred to the decisions in Raunaq International Ltd. vs. I.V.R. Construction Ltd. and others, reported in [1999] 1 SCC 492, in this connection. Reference is made to the decisions in Tejas Constructions & Infrastructure Private Limited vs. Municipal Council, Sendhwa and another, reported in [2002] 6 SCC 464, and Chhattisgarh State Industrial Corporation Limited and another vs. Amar Infrastructure Limited and others, reported in [2017] 5 SCC 387, to urge the point that considering the progress made till date with the Contract-Work, no interference is warranted in the present case. He has also referred to the recent decision of the Hon’ble Supreme Court of India in N.G. Projects Limited vs. Vinod Kumar Jain and others, reported in 2022 SCC OnLine SC 336, to submit that in the event, while not admitting, it is found that there

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Page No.# 10/42 is arbitrariness in the tender process then also there shall not be any interference and an aggrieved party should be relegated to seek damages for wrongful exclusion rather than to injunct the execution of the contract.

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6.5. Mr. Taka Masa, learned Senior Counsel appearing for the respondent no. 6 in order to buttress the points urged by him, has also referred to the decisions in [ii] Air India Ltd. vs. Cochin International Airport Ltd. and others, reported in [2000] 2 SCC 617; [iii] Nagar Nigam, Meerut vs. Al Faheem Meat Exports [P] Ltd. and others reported in [2006] 13 SCC 382.

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6.6. On the preliminary issue, Mr. Taka Masa, learned senior counsel for the respondent no. 6 has referred to the Bid Eligibility Criteria [BEC] set forth in the NIT for a bidder to participate in the tender process. He has submitted that the petitioner firm neither on the date of the NIT nor on the last date of submission of bids nor at the time of institution of the writ petition had GST registration in its name and as such, he was not eligible to participate in the tender process. It is also not the petitioner’s case that he had the Bid Eligibility Criteria [BEC] set forth in the NIT. The State respondents had to resort to the tender process, in the manner indicated in its counter affidavit, for good and sufficient reasons. With such submissions, he has contended that the petitioner being an ineligible entity, is not an aggrieved person whose right of any kind had been infringed either by the NIT or by the award of the Contract-Work or by the Work Order dated 25.03.2022 and as such, the petitioner does not have any

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Page No.# 11/42 locus to maintain such a writ petition. Contending so, he has submitted that the writ petition is liable to be dismissed on the preliminary issue itself, without going into the merits. It is his submission that even on merits, the writ petition is devoid of merit for the afore-stated reasons.

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I have given due consideration to the submissions advanced by the learned counsel for the parties and have also perused the materials brought on record by the parties through their pleadings. I have also gone through the decisions referred to and relied on by the learned counsel for the parties.

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Before dilating on the issues raised by the learned counsel for the parties, it appears necessary to make a mention about the Contract-Work surrounding which the writ petition has been filed. By the Notice Inviting Tender [NIT] bearing no. CE[H]/TB/YRS/SA[Central]/2022 dated 16.03.2022, the respondent no. 5 invited bids for an Engineering, Procurement and Construction [EPC] Contract [already and also hereinafter referred to as ‘the Contract-Work’, for brevity] for the following works from eligible bidders :-

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Sl.	Name of Work	Tender Amount	Earnest Money [	In	Time of
		[In Rupees]	Rupees]		Completi
			Local 1%	Non- local	on

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			Page No.# 1 2%	2/42
1 a]	20,38,85,600/-	20,38,856/-	40,77,7	180
Constructio n of Pre- Fabricated Indoor Stadium at Tseminyu b] Constructio n of Pre- Fab Indoor Stadium at Chumouked ima c] Constructio n of Pre- Fab Indoor Stadium at Shamator d] Constructio n of Pre- Fab Indoor			12/-	[One Hundre d Eighty] Days
Stadium at Niuland e]

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	Page No.# 13/42
Constructio
n of Pre-
Fab Indoor
Stadium
cum
Multipurpos
e Hall at
Tuensang
f]
Constructio
n of Pre-
Fab Indoor
Stadium
cum
Multipurpos
e Hall at
Noklak

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8.1. The NIT mentioned that the selected contractor shall be responsible for designing, engineering, procurement and construction of the Contract-Work. The NIT further mentioned that eligibility and qualification of the bidder would be first examined based on the details submitted with the Technical Bid qua the eligibility and qualification criteria prescribed in the NIT and the Financial Bids of only those bidders would be opened whose Technical Bids were found responsive to eligibility and qualification requirements.

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Page No.# 14/42

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8.2. Clause 6 of the NIT also laid down the eligibility and qualification of the bidders with the caveat that bidders who did not fulfill the following, were not eligible to apply :-

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a.Should have satisfactorily completed similar projects under EPC Contract mode with total costing not less than the amount equal to 70% of Estimated Cost put in tender within the last 5 [five] years ending the last day of the month 28^th February, 2022.

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b.Should have a minimum Annual Turnover not less than 70% of Estimated Cost put in tender during the last 5 [five] financial years.

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Year	Year-1	Year-2	Year-3	Year-4	Year-5
Updation	1.00	1.05	1.10	1.15	1.20
factor

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c. Should have a Solvency Certificate of the amount equal to 50% of Estimated Cost of the work

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Application for tender supported by prescribed Annexure should be submitted in sealed envelopes with the name of work and due date of opening.

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8.3. The NIT also mentioned that the prospective bidders should possess their own tools, plants and machineries for execution of the Contract-Work and they would be required to produce the original documents of the plants and machineries

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Page No.# 15/42 possessed by them on the date of Bidding Document. The bidders were asked to go through all the terms, conditions and additional clauses in the Bidding Document.

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8.4. In the Instructions/Check List for submission of technical part of the Bidding Document, the documents required to be submitted by the bidders were enlisted. One of the documents required to be submitted by the bidder pertains to the GST.

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8.5. The Bidding Document mentioned the Scope of Work as under :-

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Scope of Work :

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The scope of work under this contract shall include architectural, structural design, fabrication, supply, transportation and erection of the entire structure including entire primary and secondary structural members, wall claddings, roof sheeting, doors, windows, internal water supply, internal sanitary works, sports flooring and sports lighting and all other related works as per specifications and items of work all complete as per technical specifications and tender drawing to the satisfaction of Engineer-in-Charge.

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The basic requirement in the proposed 6 [six] pre-fab indoor stadiums is as per the tender report and drawings enclosed with the document. The drawing is only indicative. The area of each pre-fab indoor stadium will

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Page No.# 16/42 be 700 Sqm with sports floor play are of 435 Sqm, seating of 100 capacity along with entry and exit, ramp and toilet facilities for male, female and disabled. The plan and elevation has to be prepared by the EPC contractor as per site condition and shall have to be got approved by the Engineer-in-Charge before actual start of the work.

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The successful bidder shall have to get the soil test and structural design done for foundation, sub-structure and super-structure as per the prevailing IS codes and by adopting latest architectural and engineering practices. The Contractor shall provide all necessary materials, equipment, labour, electricity, access, water, facilities for workers and all other services required for the execution and maintenance of the work till completion unless otherwise mentioned in this tender document. All materials required for the work shall be as per technical specifications and details approved by Engineer-inCharge prior to procurement and use.

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8.6. The pre-fab indoor stadiums are envisaged for responding to lack of sports infrastructure at the rural levels; to provide platforms for professional athletes and amateurs; and to provide facilities in helping to find and nurture local talents in order to encourage them to participate in State events. The Bidding Document has indicated the Project Brief as under :-

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Project Brief

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Page No.# 17/42 The modular space planning which can be modified and accommodated in any given site area of 1.0 to 1.5 Acres each. A play space for local sports along with modern day sport formats. Following is the list of programs and facilities :-

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Multi-sport hall which can accommodate various indoor sport formats.

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Hall size 35 metres [L] x 20 metres [W] x 12 metres [H]

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High quality vinyl sport surfaces and equipment.

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Optimum and efficient lighting design.

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Outdoor area for local sport activities.

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Built-up modular structural steel construction.

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Integration with green technology.

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On the issue of maintainability of the writ petition at the instance of the present petitioner, raised on behalf of the respondents, a brief deliberation on the aspect, at first, appears necessary. From the Bidding Document, it has emerged that a participant bidder had to submit its document with regard to valid GST registration. The respondent no. 6 in its affidavit-inopposition has asserted that though the petitioner firm was enlisted as a Class–I Government Contractor with registration no. NPW/Class-I/1040 but it did not have a valid GST registration. In the writ petition, the petitioner quoted its GST registration number as 13CSDPS0015E3ZB. The respondent no. 6 has asserted that when it checked the official website of the Commissionerate – Dimapur Division, Range – Kohima Range with regard to GST registration of the petitioner, the website showed the status of

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Page No.# 18/42 GSTIN/UIN - 13CSDPS0015E3ZB as cancelled suo-moto w.e.f. 06.07.2021. The said position regarding cancellation of GST registration no. 13CSDPS0015E3ZB has not been controverted by the petitioner in its affidavit-in-reply to the affidavit-in-opposition filed by the respondent no. 6. In its said affidavit-in-reply, filed on 18.07.2022, the petitioner has merely stated that upon expiry of the GST registration, application was made for renewal of the GST registration and the same was pending before the competent authority.

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9.1. There is no dispute to the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed for is for habeas corpus or quo warranto. One further exception is in relation to public interest litigation. Ordinarily, the existence of the legal right of the petitioner which is alleged to have violated, is the foundation for exercising the jurisdiction under Article 226 of the Constitution of India. By a long line of decisions, three categories of persons vis-à-vis the locus standi have been identified who are [i] a person aggrieved; [ii] a stranger; and [iii] a busy body or a meddlesome interloper. If a person approaching the Court satisfies that the impugned action is likely to adversely affect his right which has genesis in a statutory or constitutional provision, such a person falls in the category of aggrieved person and the writ petition filed by such person cannot be rejected on the ground of his not having locus standi.

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Page No.# 19/42 9.2. In the case in hand, the date of the NIT was 16.03.2022 and the last date of submission of bids was 23.03.2022. It has, thus, emerged that the petitioner did not have valid GST registration either on the date of publication of the NIT or on the last date of submission of bids fixed by the NIT. The NIT had laid down the eligibility and qualification required on the part of the bidders to participate in the tender process and to be awarded with the Contract-Work with the further stipulation that a bidder suffering from ineligibility and lacking qualification would not be permitted to submit bid. The petitioner firm has not placed any document or any other tangible material to show that it had eligibility and qualification laid down in the NIT to participate in the tender process undertaken for the Contract-Work. Thus, the petitioner has not also been able to demonstrate before the Court that he had the eligibility and qualification to participate in the impugned tender process, save and except pleading that had the NIT been widely circulated as prescribed by law he would have also participated in the tender process undertaken for the Contract-Work. Faced with such lack of details, the petitioner has not been able to persuade this Court to record a finding that he falls in the category of aggrieved person whose any kind of legal right had, thereby, been violated.

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The petitioner’s only contention is that the NIT for the Contract-Work was not published in widely circulated newspapers, in the manner prescribed by law. In the writ petition, the petitioner has not referred to any provision which was violated by the State respondent authorities in publishing the NIT. It is only at

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Page No.# 20/42

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the time of hearing the learned counsel for the petitioner has raised the plea that the process undertaken with regard to the NIT was in violation of Clause 291 of the Nagaland Public Works Department [NPWD] Code and for such contention, he has heavily relied upon the decision in Yikhyao Lotha [supra].

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10.1. Rule 291 [Calling and Acceptance of tenders] of the NPWD Code has provided that sealed tenders should invariably be invited in the most open and public manner possible, by advertisement in the Government Gazette or the Press, or by public notice. The notice should inter alia state the place where, and the time when, the contract documents could be seen, and blank forms of tender could be obtained. The notice should also state about the place where, and the time and date on which, the tenders are to be submitted and are to be opened.

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10.2. The factual matrix involved in Yikhyao Lotha [supra] were that the Department of Tourism, State of Nagaland undertook a project for establishment of various Tourist Reception Centres in different villages in the State for development of tourism. As a part of the said process, one work was allotted for construction of a Tourist Reception Centre at Mekokla village, District – Wokha in favour of the respondent no. 5 therein. The petitioner therein contended that the work was awarded in a surreptitious manner without floating NIT in violation of the NPWD Code and the Central Public Works Department Manual, which prescribed for wide publicity so that all the prospective bidders were aware about the floating of Government works. It was contended on

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Page No.# 21/42 behalf of the respondents that the petitioner was not an aggrieved party as he never applied for securing the work offered through the NIT although there was adequate publicity and almost 70% of the work allotted to the respondent no. 5 was already executed. It was also contended that as the NIT was published in the notice board, the same fulfilled the condition regarding publication as contemplated in Clause 291, NPWD Code. The Court had observed that since the NPWD Code had already been notified, the conditions stipulated therein were to be followed whenever the State largesses were offered for execution through public participation. The Court had further negated the contention regarding fulfilment of the condition contemplated in Clause 291, NPWD Code with the publication of a notice in the notice board. It was found that the registration of the respondent no. 5 with the Nagaland Contractors and Suppliers Union [NCSU] was lapsed since before the floating of the NIT for non-renewal and, thus, he was ineligible to be awarded the work. The Court had found that 70% of the work had already been executed when the writ petition was instituted. The Court had observed that in normal circumstances, the writ court would have rejected a proceeding under Article 226 of the Constitution of India on such count alone. However, in the facts and circumstances obtaining in the said case, the Court found it necessary not to dismiss the writ petition despite execution of 70% of the work on the date of institution of the writ petition and the work order in question there was set aside and quashed, with a direction to issue fresh NIT in respect of the remaining part of the work and to bring such tender process to its logical conclusion in accordance with the relevant

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Page No.# 22/42 rules and procedures as early as possible. While parting with, the Court expressed that in future, the State functionaries would not resort to such a process.

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It is also settled that no party should be permitted to travel beyond its pleadings to make out a new case. A party should plead all necessary and material facts in support of the case sought to be set up by it. Pleadings are considered to be the foundation of litigation. The requisite foundation should be laid in order to assert a right to relief. Appropriate pleadings and laying the requisite foundation are necessary so as to enable the parties against whom the relief is sought, to traverse and controvert the same and also to enable the Court to reach a just decision on the issue raised by the concerned party. A decision cannot be based on grounds outside the pleadings of the parties, unless it is a pure question of law. A question of fact for which no factual foundation has been laid by a party before the Court, is not allowed to be agitated at the time of hearing. Any contention raised against another party must also be raised in presence of the said party. On the above raising a question of law at the time of hearing, the same should be a pure question of law or a legal issue for which no inquiry/proof is required and no opportunity for the opposite party against whom the legal issue is likely to operate, is to be afforded. So far as the plea raised by the petitioner at the time of hearing with regard to violation of the provision of Clause 291, NPWD Code is concerned, the same is likely to operate against the State respondents. It is an issue which requires examination of Clause 291 qua the stand to be taken by the said respondents for

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Page No.# 23/42

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adhering or not adhering to the same. But it appears that such an opportunity to show cause for adhering or not adhering to the provision contained Clause 291, NPWD Code has not been made available to the State respondents in the case in hand, as the statements made in the writ petition are found conspicuously silent on Clause 291, NPWD Code. The State respondents in its affidavit-in-opposition have provided an explanation as to why they had to resort to a process of limited tender, without adverting to the aspect of violation or otherwise of Clause 291, NPWD Code while resorting to such a process of limited tender. When submission has been advanced on the provision of Clause 291, NPWD Code by the petitioner, counter submission has been advanced on behalf of the respondents to the effect that though the NPWD Code had been notified but the same are not statutory in character and, hence, not enforceable in the Court of law. As the parties have not placed any materials on the issue, this Court has no option but to leave the issue open in the absence of adequate and sufficient materials.

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It has been averred in the affidavit-in-opposition of the State respondents and it also transpires from the records, produced by the learned State Counsel, that the Director, Youth Resources & Sports [YR&S], Nagaland [the respondent no. 3] wrote to the Chief Engineer, PWD [Housing], Nagaland [the respondent no. 5] on 03.03.2022 stating that in respect of the Contract-Work, the fund for the works at serial nos. 1 to 4 had been allocated under the Special Assistance to States for Capital Expenditure [SASCE] during the year : 2021-2022 and the works

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Page No.# 24/42 at serial nos. 5 to 6 had been allocated under the Innovative Scheme during the year : 2021-2022. The funds for both the schemes had been allocated within the last quarter of the Financial Year : 2021-2022 and accordingly, the Detailed Project Report [DPR] was prepared and proposal for technical approval was submitted to the office of the respondent no. 5. The respondent no. 3 further informed that in order to avoid the lapse of fund and to prevent loss of benefit to the people, the work order need to be issued before 31.03.2022, as per the directives of the funding agencies. The placement of fund had been made as per allocation of fund made by the Ministry of Finance [MoF], Government of India [GoI] vide its letter no. 44[1]PF-S/202122[CAPEX]-Nagaland-SACE-50 dated 21.02.2022 and the mandate was to proceed with the works immediately to ensure that the same were completed within the stipulated period.

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12.1. As per Demand no. 33 – Youth Resources & Sports, the total allocated amount for construction of the pre-fabricated indoor stadiums in the newly created four districts was Rs. 1400.00 lakhs. For the works at serial nos. 5 & 6, the amount of fund allocated to the Department of YR&S was Rs. 700.00 lakhs.

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12.2. On receipt of the letter dated 03.03.2022 from the respondent no. 3, the respondent no. 5 informed vide his letter dated 05.03.2022 that the process for technical approval of the Contract-Work was underway and due to the specialised nature of the work under the EPC mode, the DPR required intense scrutiny at all levels. Due to time constraint and limited period available for

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Page No.# 25/42 completing the tendering formalities, the respondent no. 5 had expressed his view that as the Contract-Work was of prefabricated structures and all the components were to be preengineered before installation at the sites, the same would require highest degree of specialisation in the execution. It was informed that such nature and quantum of works under the EPC mode were the first of its kind in the State of Nagaland and the qualifications from the local contractors were sparsely available. Considering the limited time left, the nature, scope and quantum of work, the respondent no. 5 requested the Department of YR&S to allow his office to go for Limited Tender in order to avoid lapse of the fund and to execute the Contract-Work successfully within the allotted time.

¶102

12.3. On 11.03.2022, the respondent no. 3 wrote to the respondent no. 5 conveying the fact that the State Government had accorded Administrative Approval for Limited Tender in respect of the Contract-Work and requested the respondent no. 5 to do the needful at the earliest. Upon receipt of the State Government’s Administrative Approval, the respondent no. 5 appeared to have shortlisted a number of firms for the ContractWork and issued a letter of request to those shortlisted firms on 16.03.2022 with the request to convey their acceptance or refusal in writing on or before 21.03.2022. By the said letter dated 16.03.2022, it was conveyed to the shortlisted firms that they were shortlisted in a Limited Tender process for pre-fabricated building works under the EPC mode, as mentioned in the Notice Inviting Tender [NIT] no. CE[H]/TB/YRS/SA[Central]/2022 dated

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Page No.# 26/42 16.03.2022, enclosed therewith. In the affidavit, it is averred the NIT was also issued in the notice board. It transpires that out of the 4 [four] shortlisted firms, 3 [three] of them responded to the NIT dated 16.03.2022 by submitting the bid documents.

¶104

12.4. On receipt of those three bids, the tendering authority evaluated the same and prepared a comparative statement. As per the comparative statement, the rates quoted by the said three bidders, were as under :-

¶105

Sl.	Name of Tenderers	Tender Amount	Rate Quoted
1	M/s Infrastructural Development		Rs.
	Consortium	Rs.	20,38,85,600/-
2	M/s Shiva Enterprises	20,38,85,600/	Rs. 23,44,68,440/-
3	M/s Amateur Engineering and	-	Rs.
	Services		26,50,51,280/-

¶106

12.5. Finding the bid value offered at Rs. 20,38,85,600/- by the respondent no. 6 as the lowest [L1] the respondent no. 5 issued the Work Order bearing no. CE[H]/TB/YRS/ SA[Central]/2022/19 dated 25.03.2022 in favour of the respondent no. 6 to execute the Contract-Work at a total Contract Value of Rs. 20,38,85,600/-, which is inclusive of all statutory taxes/levies/duties/octroi/royalty/cess, etc. including GST with the terms and conditions stated therein. The Work Order mentioned that the time for completion of the Contract-Work would be 120 days from the date of signing the formal agreement or site

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Page No.# 27/42 possession, whichever was later. Subsequent to the Work Order, a Contract Agreement was executed by the respondent no. 5 with the respondent no. 6. As per the Special Conditions of Contract [SCC], the EPC contractor has to provide all necessary materials, equipment, labour, electricity, etc. required for execution and maintenance of the Contract-Work till completion. The scope of work includes architectural, structural design, fabrication, supply, transportation and erection of the entire structure including entire primary and secondary structural members, wall claddings, roof sheeting, doors, windows, internal water supply, internal sanitary works, sports flooring and sports lighting and all other related works as per specifications and items of work all complete as per technical specifications and drawing to the satisfaction of Engineer-In-Charge.

¶108

From the above discussion, it has emerged that the petitioner did not have a valid registration under the GST regime, which was a mandatory eligibility criterion to participate in the tender process initiated for allotment of the Contract-Work. As has been noted above, the petitioner has not been able to demonstrate before this Court that it had the eligibility and qualification prescribed in the NIT either at the time of issuance of the NIT dated 16.03.2022 or on the last date of submission of bids pursuant to the NIT i.e. on 23.03.2022 or on the date of institution of the writ petition on 06.06.2022 to execute the Contract-Work in question to come in the bracket of an aggrieved person whose any kind of legal right had been violated due to the purported violation of Clause 291, NPWD Code and/or non-

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Page No.# 28/42 publication of the NIT in widely circulated newspaper. It is to be noted that no other bidders, claiming to be eligible and qualified in terms of the NIT, has approached the Court challenging the process undertaken by the NIT and in relation to the ContractWork.

¶110

It is true that the State respondents did not adhere to the procedure prescribed in Clause 291, NPWD Code and instead, it had resorted to a process of limited tender for the reasons mentioned hereinabove. It has been observed in Nagar Nigam, Meerut [supra] as well settled that contracts by the State or its instrumentalities must be normally granted through public auction public tender by inviting tenders from eligible persons and the notification of the public auction or inviting tenders should be advertised in well-known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject-matter of auction, technical specifications, estimated cost, earnest money deposit, etc. The award of Government contracts through public auction/public tender is to ensure transparency in the public procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concern. The compliance of the above is requisite for the principle of equality enshrined in Article 14 of the Constitution of India.

¶111

14.1. The decision in Nagar Nigam, Meerut [supra] has also held as well settled that ordinarily the State or its instrumentalities

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Page No.# 29/42 should not give contract by private negotiation but in rare and exceptional cases, having regard to the nature of the trade or largesse or for some other good reason, a contract may have to be granted by private negotiation. But normally that should not be done as it shakes the public confidence. For instances, during natural calamities and emergencies declared by the Government; where the procurement is possible from a single source only; where the supplier or contractor has exclusive rights in respect of the goods or services and no reasonable alternative or substitute exists; where the auction was held on several dates but there were no bidders or the bids offered were too low, etc., the normal rule may be departed from and contracts may be awarded through private negotiations.

¶113

In the backdrop of the fact situation obtaining in the case in hand and in the light of the procedure required to be followed in the distribution of State largesses, the issue which appears necessary to be considered is whether the Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution of India should interfere with the process impugned herein with the resultant termination of the Contract-Work.

¶114

15.1. In Raunaq International Ltd. [supra], when M/s I.V.R. Construction Ltd. who did not fulfil the qualifying criterion, assailed the award of a contract by the Maharashtra State Electricity Board in favour of M/s Raunaq International Ltd., the Hon’ble Supreme Court of India has observed in the following manner :-

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Page No.# 30/42

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9.The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be :

¶117

[1] the price at which the other side is willing to do the work;

¶118

[2] whether the goods or services offered are of the requisite specifications;

¶119

[3] whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important;

¶120

[4] the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality;

¶121

[5] past experience of the tenderer and whether he has successfully completed similar work earlier;

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[6] time which will be taken to deliver the goods or services; and often

¶123

[7] the ability of the tenderer to take follow-up action, rectify defects or to give post contract services.

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Page No.# 31/42 Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction.

¶125

What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities, (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously, (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work - thus involving larger outlays or public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and

¶126

Page No.# 32/42

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substantial cost escalation.

¶128

When a writ petition is filed in the High court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.

¶129

When a petition is filed as a public interest litigation challenging the award of a contract by the State or any public body to a particular tenderer, the court must satisfy itself that the party which has brought the litigation is litigating bona fide for public good. The

¶130

Page No.# 33/42 public interest litigation should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition. The court can examine the previous record of public service rendered by the organisation bringing public interest litigation. Even when a public interest litigation is entertained, the court must be careful to weigh conflicting public interests before intervening. Intervention by the court may ultimately result in delay in the execution of the project. The obvious consequence of such delay is price escalation. If any retendering is prescribed, cost of the project can escalate substantially. What is more important is that ultimately the public would have to pay a much higher price in the form of delay in the commissioning of the project and the consequent delay in the contemplated public service becoming available to the public. If it is a power project which is thus delayed, the public may lose substantially because of shortage in electric supply and the consequent obstruction in industrial development. If the project is for the construction of a road or an irrigation canal, the delay in transportation facility becoming available or the delay in water supply for agriculture being available, can be a substantial setback to the country's economic development. Where the decision has been taken bona fide and a choice has been exercised on legitimate considerations and not arbitrarily, there is no reason why the court should entertain a petition under Article 226.

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Page No.# 34/42 15.2. In Jagdish Mandal [supra], which pertained to challenge made in respect of award of construction contracts by the Irrigation Department, Government of Orissa in favour of the successful bidder by an unsuccessful bidder, the Hon’ble Supreme Court has observed that when the power of judicial review is invoked in matters relating to tender or award of contracts, certain special features should be borne in mind. It has gone on to observe as under :-

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“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 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. 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 :

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[i] Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR

¶134

Whether the process adopted or decision made is so arbitrary and irrational that the court can say : “the

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Page No.# 35/42 decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;

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[ii] Whether public interest is affected.

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If the answers are in the negative, there should be no interference under Article 226. ………………”

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15.3. In Uflex Limited vs. Government of Tamil Nadu and others, reported in [2022] 1 SCC 165, the Hon’ble Supreme Court of India has taken note of the present ground reality that almost no tender remains unchallenged and unsuccessful parties or parties not even participating in the tender seek to invoke the jurisdiction of the High Court under Article 226 of the Constitution of India.

¶139

15.4. In Tejas Constructions and Infrastructure Private Limited [supra], an unsuccessful bidder instituted the writ petition before the High Court challenging the allotment of a project work involving design, construction and commissioning of a single integrated water supply in favour of the successful bidder – respondent no. 2 inter alia on two main grounds that the successful bidder did not have the requisite experience of executing a single integrated water supply scheme of the requisite value, as laid down in the NIT, and he also did not submit the requisite documents with regard to the average net worth as per the NIT. The High Court dismissed the writ petition observing that there was substantial compliance of the requirements. On being appealed, the Hon’ble Supreme Court took note of the fact that 60% of the project work had already been completed by the successful bidder and 45% payment had already been disbursed in his favour. It had observed that the project work in question related to a drinking water supply scheme for the residents of a

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Page No.# 36/42 municipality and it was sponsored with the Central Government assistance having a particular time period. It had observed that any interference with the award of the contract at that stage would delay the execution of the work and put the inhabitants of the municipal area to further hardship. It was held that interference with the ongoing work was, therefore, not conducive to public interest which can be served only if the scheme was completed as expeditiously as possible.

¶141

15.5. In Chhattisgarh State Industrial Development Corporation Limited [supra], one of the bidders filed the writ petition challenging award of a construction work given to another bidder, pursuant to a tender process initiated by an NIT dated 03.11.2015 by the appellant – Chhattisgarh State Industrial Development Corporation Limited. The challenge was inter alia on the ground that the successful bidder did not possess the requisite qualification at the time of submitting the tender and therefore, should be disqualified and fresh bids should be invited. The Court has taken note that Tejas Constructions and Infrastructure Private Limited [supra] had held that when the work was 60% complete the Court should be slow to interfere as re-tendering would delay the project. In the absence of mala fide or arbitrariness, the Hon’ble Supreme Court had observed that as 50% of the work was completed when the order in the writ petition was passed by the High Court, no interference was warranted.

¶142

15.6. In N.G. Projects Limited [supra], the Hon’ble Supreme Court of India has taken note of the provision contained in newly

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Page No.# 37/42

¶144

inserted Section 41 in the Specific Relief Act, 1963, as amended by the Central Act 18 of 2018, and has made the following observations :-

¶145

“21. Since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India.

¶146

….. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide 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, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.”

¶147

The Government when it contemplates to undertake a public project, the same is ordinarily preceded by a detail process of deliberation giving due consideration on the aspects of viability, feasibility, financing, cost, other relevant factors, etc. of the proposed public project. It is only when the Government finds good reasons to proceed with the proposed public project keeping larger public interest into consideration, the final decision for going ahead is taken. A considerable time is spent by the

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¶149

authorities concerned in consultation with the domain experts in the field before the final decision is arrived at to go ahead for execution of a public project. If the Government authorities act reasonably, fairly and in public interest in awarding contract, the Courts have to exercise caution and restraint since no person can claim a fundamental right to carry on business with the Government. The Governmental authorities in the case in hand stated to have prepared a detailed project report and arrived at a finding that the estimated cost of the Contract-Work would be Rs. 20,38,85,600/-. The implementing agency, that is, the NPWD was in the best position to know as to whether the contractors registered with the NPWD had the expertise and wherewithal to execute the Contract-Work which, according to them, would require highest degree of specialization in the execution. The implementing agency was of the view that the nature and quantum of the Contract-Work involving pre-fabricated structures for stadiums under the EPC mode were first of its kind in the State of Nagaland and it expressed that contractors registered with it did not have the qualification to execute it. On the other hand, the Contract-Work had to be completed within a limited time period and thus, time was of the utmost essence. The implementing agency was of the view that in such scenario, the limited tender process was the only option. The State Government holding the view that if the tender process was not completed on or before March, 2022 then the fund which it had received from the Central Government would lapse, had accorded administrative approval for such limited tender process. The Contract-Work of prefabricated indoor stadiums to be constructed at the six places in

¶150

Page No.# 39/42 the State of Nagaland are with a view to provide impetus to the sports scenario in the State as the State lacks in sports infrastructure. It was of the view that the same would provide platform for professional sportspersons as well as amateur sportspersons to nurture and hone their sporting skills. Thus, the Contract-Work is undoubtedly a public project where public interest is intricately associated.

¶151

It is not the case of the petitioner that the contractor who had been awarded the Contract-Work lacks the eligibility and qualification to execute the Contract-Work. It is also not the case of the petitioner that the Contract-Work has been awarded at a price higher than the estimated cost. It is also not its case that the estimated cost assessed and arrived at Rs. 20,38,85,600/- is in violation of any prescribed norms. It was the respondent no. 6 out of the three participant bidders who had quoted the lowest bid value, at par with the estimated cost, and emerged as the successful bidder [L-1], to whom the Contract-Work was awarded. There was not allegation to the effect that there was any collusiveness amongst the participant bidders in the tender process. The decision in Yikhyao Lotha [supra] was rendered by taking into consideration Clause 291, NPWD Code while interfering with the work, allotted to a contractor who did not have requisite qualification to apply for the work. On a perusal, it is noticed that the earlier decisions in Raunaq International Ltd. [supra], Tejas Constructions & Infrastructure Private Limited [supra] and Jagdish Mandal [supra] which have dealt with the aspect of public interest vis-à-vis expediency in interfering with an ongoing contract-work

¶152

Page No.# 40/42

¶153

in the mid-way, were either not placed for consideration before the Hon’ble Court nor considered in Yikhyao Lotha [supra].

¶154

As per the progress report submitted under seal and signature of the respondent no. 5, the progress made in connection with the pre-fabricated indoor stadiums and/or prefabricated indoor stadiums-cum-multipurpose halls at the six different places are as under :-

¶155

Sl.	Name of work	Work order amount	Amount released	Financ ial progr ess [%]	Progres s as per milesto ne [%]
1	Construction of Pre-Fabricated Indoor Stadium at Tseminyu	Rs. 3,10,75,800	Rs. 1,27,25,540	41%	65%
2	Construction of Pre-Fab Indoor Stadium at Chumoukedima	Rs. 3,17,57,500	Rs. 1,30,04,697	41%	50%
3	Construction of Pre-Fab Indoor Stadium at Shamator	Rs. 4,00,81,200	Rs. 1,64,13,252	41%	50%
4	Construction of Pre-Fab Indoor	Rs. 3,30,09,300	Rs. 1,35,17,308	41%	45%

¶156

				Page No.	# 41/42
	Stadium at Niuland
5	Construction of	Rs.	Rs.	41%	52%
	Pre-Fab Indoor Stadium cum	3,30,46,700	1,35,32,624
	Multipurpose Hall at Tuensang
6	Construction of	Rs.	Rs.	41%	48%
	Pre-Fab Indoor Stadium cum Multipurpose Hall at Noklak	3,49,15,100	1,42,97,733
		Rs. 20,38,85,600	Rs. 8,34,91,153

¶157

Having regard to the extent of progress made in respect of each of the pre-fabricated indoor stadiums / prefabricated indoor stadiums-cum-multipurpose halls at the places, this Court is of the considered view that any interference with regard to the Contract-Work in the form of rescission with a further direction to initiate a fresh tender process for execution of the remaining part of the Contract-Work, would not only delay the time period of completion of the Contract-Work but the same would also escalate the cost of the Contract-Work by a substantial margin severely impacting the State exchequer. By such escalation in cost in respect of the public project where public money has been expended, it is the public interest which is likely to suffer. The delay in completion of the public project would affect the

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¶159

public interest in adverse manner, rather than safeguarding it if one takes a pragmatic view of the matter in its entirety.

¶160

In the light of the above discussion and for the reasons assigned therein, though the process of limited tender enquiry followed in awarding the Contract-Work under reference was found to be not in conformity with the professed norms and standards laid down by the State respondents themselves, this Court by taking into consideration the entire facts and circumstances obtaining in the case in hand and the necessity or otherwise to exercise the power of judicial review available under Article 226 of the Constitution of India, is of the considered view that any rescission of the Contract-Work at the present stage of its progress will not be in public interest. In such view of the matter, the Court does not like to interfere with the Contract-Work of construction of pre-fabricated indoor stadiums and/or prefabricated indoor stadiums-cum-multipurpose halls at the six places. Consequently, the writ petition is rejected. There shall, however, be no order as to cost.

¶161

Sd/-

¶162

JUDGE

¶163

Comparing Assistant

M/S Naga Builders and Suppliers v. the State of Nagaland and 5 Ors.

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M/S Naga Builders and Suppliers v. the State of Nagaland and 5 Ors.

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