Petitioners challenged tender notice conditions for RTE food supply as arbitrary qualification points. Court held terms reasonable, no mala fides, and dismissed the writ petitions.
No interference with the tender terms, conditions, or the selection of bidders. Writ petitions dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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GAHC040003612024
2025:GAU-AP:4
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/115/2024
M/s Orion Health Foods Private Limited
1st Floor, juhar Market, AC Lane, Near UCCO Bank, Shillong 793001 Meghalaya, India represented by Shri Ankur Jhunjhunwala, S/o Uttam Jhunjhunwala, resident of 1st Floor, Juhar Market, AC Lane Near UCO Bank, Shillong, 793001 Meghalaya, India
VERSUS
The State of AP and 6 Ors
represented by its Secretary, Women and Child Development Department, Govt of Arunachal Pradesh, C Sector, Itanagar, Arunachal Pradesh 791111
2:The Secretary Age: 0 Occupation : Women and Child Development Department Govt of Arunachal Pradesh C Sector Itanagar Arunachal Pradesh 791111
3:The Director Age: 0 Occupation : Women and Child Development Department Govt of Arunachal Pradesh C Sector Itanagar Arunachal Pradesh 791111
4:The Joint Director Age: 0 Occupation : Women and Child Development Department
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Govt of Arunachal Pradesh C Sector Itanagar Arunachal Pradesh 791111 5:M/s Aasray Foods Pvt Ltd Age: 0 Occupation : a company incorporated under the Companies Act 1956 at 22 Amarabathi Path 1st Floor Christian Basti GS Road Guwahati 781101 India and is represented by Shri Amrit Deorah Son of Late Ashok Kr Deorah resident of Flat No. CC801 C38202 Spanish Garden Zoo Road PO Dispur Guwahati 781005 Kamrup (M) District Assam 6:M/s Rausheen Udyog Limited Age: 0 Occupation : a company incorporated under the Companies Act 1956 and having its office a Mahamaya Road Dibrughar being represented by its Director Shri Saroj Kr Agarwal 7:M/s Continental Milkose (India) Limited Age: 0 Occupation : a company incorporated under the Companies Act 1956 and hiving its office at Flat No.5D Priyanka Apartment GC Goswami Road Panbazaar Guwahati Assam and is represented by its Director Shri Shyam Sunda
Advocate for the Petitioner : Mr. G.N. Sahewalla, Sr. Advocate, Mr. Gallen Taloh, Mr. A. K. Sahewalla, Mr. D Goswami.
Advocate for the Respondents : Mr. R.H. Nabam, Addl. Advocate General, AP, N Aditya, Nani Anju,Binter Picha, Mr. D Das, Sr. Advocate, Ms. Irmala Das.
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Linked Case : WP(C)/227/2024
M/s Aasray Foods Pvt Ltd and Anr Age: 0 Occupation : Address:having its office at 22 Amarabathi Path 1st Floor Christian Basti G.S. Road Guwahati 781101 Kamrup(M) Assam. represented by its Director Shri Amrit Deorah 2: Amrit Deorah Age: 38 Occupation : Address:Son of Late Ashok Kr Deorah resident of Flat No. C801-C3802 Spanish Garden Zoo Road PO Dispur Guwahati 781005 District Kamrup (M) Assam VERSUS The State of Arunachal Pradesh and Anr Age: 0 Occupation : Address:through the Secretary Govt of Arunachal Pradesh Women and Child Development Department Itanagar Capital Complex Itanagar 791111 2:The Director Age: 0 Occupation : Address:Directorate of Women and Child Development Itanagar Capital Complex Itanagar 791111 -----------Advocate for petitioners: Mr. Surajit Dutta Sr. Adv Advocate, Ms. I. Das, Nani Anju Advocate for : GA (AP) appearing for The State of Arunachal Pradesh and Anr: Advocate , appearing for 2, respectively.
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Linked Case : WP(C)/93/2024 M/s Aasray Foods Pvt Ltd and Anr Age: 0 Occupation : Address:having its office at 22 Amarabathi Path 1st Floor Christian Basti G.S. Road Guwahati 781101 Kamrup(M) Assam. 2: Amrit Deorah Age: 38 Occupation : Address:Son of Late Ashok Kr Deorah resident of Flat No. CC801-C3802 Spanish Garden Zoo Road PO Dispur Guwahati 781005 District Kamrup (M) Assam VERSUS The State of AP and 3 Ors Age: 0 Occupation : Address:through the Secretary Govt of Arunachal Pradesh Women and Child Development Department Itanagar Capital Complex Itanagar 791111 2:The Director Age: 0 Occupation : Address:Directorate of Women and Child Development Itanagar Capital Complex Itanagar 791111 3:M/s Rausheena Udyog Limited Age: 0 Occupation : Address:having its office at Mahamaya Road Dibrugarh Assam 786001 being represented by its Director Shri Saroj Kr Agarwal. 4:M/s Continental Milkose (India) Limited Age: 0
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Occupation : Address:having its office at Flat No.5D Priyanka Apartment SC Goswami Road Panbazar Guwahati Kamrup (M) Assam 781001 being represented by its Director Shri Shyam Sundar Agarwal -----------Advocate for petitoiners : Mr. Surajit Dutta Sr. Adv Advocate, Ms. I. Das, Ms. N. Anju Advocate for respondents : GA (AP) appearing for The State of AP and 3 Ors: Advocate ,
Linked Case : WP(C)/105/2024 M/s Abhinav Food Products and Anr Age: 0 Occupation : Address:having its office at Balugodda Road Tinsukia Assam represented by its Partner Shri Prashant Agarwal 2: Prashant Agarwal Age: 40 Occupation : Address:Son of Shri Sajjan Kumar Agarwal resident of Makum Road Near Thermal Gate Opposite Aluminum Industries PO and District Tinsukia Assam 786125 VERSUS The State of AP and Anr Age: 0 Occupation : Address:through the Secretary to the Govt of Arunachal Pradesh Women and Child Development Department Itanagar Capital Complex Itanagar 791111 2:The Director Age: 0 Occupation : Address:Directorate of Women and Child Development Itanagar Capital Complex Itanagar 791111 ------------
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Advocate for petitioners : Mr. Surajit Dutta Sr. Adv Advocate, Ms. I. Das, Ms. N. Anju Advocate for respondents : GA (AP) appearing for The State of AP and Anr: Advocate , appearing for 2, respectively.
BEFORE HONOURABLE MR. JUSTICE KARDAK ETE
Date of hearing : 29.11.2024. Date of judgment : 03.01.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. G. N. Sahewalla, learned Senior Counsel assisted by Mr. A. K. Sahewalla, learned counsel for the petitioner in WP(C)/115(AP)/2024; Mr. S. Dutta, learned Senior Counsel assisted by Ms. I. Das, learned counsel and Ms. N. Anju, learned counsel for the petitioners in WP(C)/93(AP)/2024, WP(C)/105(AP)/2024 and WP(C)/227(AP)/2024 and respondent No. 5 in WP(C)/115(AP)/2024. Also heard Mr. R. H. Nabam, learned Additional Advocate General assisted by Ms. P. Pangu, learned Government Advocate for the State respondents in all the writ petitions. None appears for the private respondent Nos. 6 & 7, despite service of notices.
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criteria specified in order to qualify the same. It is contended that in the previous tenders the contract value was Rs.20 Crores and in terms of the earlier NIT, a bidder with net worth of Rs. 15 Crore was also eligible to participate. Furthermore, there was no provisions in the previous tender stating therein that the bidders shall have to supply to various number of States, so as to be eligible and/or qualify in the NIeT process.
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arbitrary and may have been specifically introduced to favour some bidders. There is no conformity with the objective which is sought to be achieved with the present tender condition.
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document requires a bidder to have a supply experience of Rs. 10 Crores in at least 1 year out of the last 3 years. However, the same tender document requires the bidder to have an 'average turnover' of Rs. 10 Crores in 'each' financial year out of the last 3 years. These two clauses are contradictory to each other and also the clause in the qualification point is contradictory to itself as turnover can either be average of 3 years, or in each of the 3 years, but not both. He submits that Clause 20 read with Qualification No. 5 of Annexure-B; clause 21(h), Clause 21(l) read with Qualification Point No.8 of Annexure-B, Clause 21(q), Clause 22 and Clause 26 of the Part -I of the bid document of NIeT dated 20.02.2024 are tainted with unreasonableness. Applying the Wednesbury Rule of arbitrariness and unreasonableness the aforesaid clauses of the Part-I of the bid document read with qualification points No.5 and No.8, mentioned in Annexure-B of the bid document are shockingly disproportionate to the objective sought to be achieved. The doctrine of proportionality demands that there must be a nexus with the terms and conditions of the contract read as a whole and the objective which is sought to be achieved with the tender conditions. But, in the instant case, no nexus is found and therefore, the petitioner had represented before the State authorities regarding the same, however, the respondent authorities failed to consider the same in its proper perspective, compelling the petitioner to institute the present proceeding. Therefore, he submits that the Annexure-B, attached to the NIeT dated 20.02.2024 is liable to be interfered with direction to the respondent authorities to re-evaluate both the technical and financial stages and thereafter to finalise the tender.
(1) Nandhini Delux Vs. Government of Andhra Pradesh , reported in 2006(1)ALD 212/ AIR 2006 (NOC) 190 .
(2) National High Speed Rail Corporation Limited vs. Montecarlo Limited and another reported in (2022) 6 SCC 401 .
(3) M.P. Power Management Company Limited, Jabalpur vs. Sky Power Southeast
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Solar India Private Limited and others , reported in (2023) 2 SCC 703 and
(4) Chatradhar Das and others vs. State of Assam and others, reported in (2023) 1 GLR 581 .
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shall not be effected without leave of the Court - Interim Order continued from time to time. On 10.03.2024, the impugned Corrigendum was issued and Clause 21(1) and Clause 4 of the Annexure-B, to the NIT dated 20.02.2024 were amended. Against the said amendment, one interlocutory application i.e. I.A. (Civil) No.84/2024 was filed on 18.05.2024 by one Rausheena Udyog Ltd. On 14.03.2024, the petitioner submitted its bid (Bid Acknowledgment enclosed), who was unaware about the corrigendum dated 10.03.2024. On 07.06.2024, the W.P. (C) No.227/2024 was filed moved and the corrigendum dated 10.03.2024 was stayed till returnable date and said interim order extended from time to time. Thereafter, the State respondents rejected the petitioner's bid and prepared a Note and Technical Summary Report holding the private respondent No.3 as L1 bidder in respect of the item (2) and the private respondent No.4 as L1 bidder in respect of the items (1) and (3). However, on 30.09.2024, 30/09/2024, in view of the order passed in I.A. (Civil) No.123/2024, in connection with W.P. (C) No.93/2024, was accordingly amended to challenge the aforesaid Summary of Technical Bid Evaluation and Tender Summary Report both dated 24.07.2024 and Note dated 29.07.2024 and Tender Summary Report dated 01.08.2024.
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of Rs. 2.5 Cr., there is no basis for incorporation of the Clause 8 in the Annexure-B so as to give points for net worth up to Rs. 20 Cr or above. Secondly, if this is applied, a tenderer whose net worth is up to Rs. 20 Cr. will eventually be deprived of 15 points and get eliminated at the stage of assessment of Technical Bid itself. This is crucial because as per Annexure-B one has to score 90 out of 100. The Clause 8 as well as the requirement of scoring 90 points are, therefore, discriminatory, arbitrary, incongruous to the other conditions of the NIeT and unreasonable and has no nexus with the objective sought to be achieved which is to select the best supplier of the product. In a contract for supply of goods like the one in hand, it is the quality of the product which is of paramount consideration and viewed thus, the allocation of marks against net worth of a bidder up to Rs. 20 Cr or above is really of no significance and as such, on this ground alone, the impugned NIeT is liable to be interfered with.
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Whereas the Clause 5 allocates 25 points to be earned based on supply made in the last three financial years, it does not specify as to whether the points are allocable against supply made in just one year or each of the financial years. To elaborate, it does not specify whether to earn 5 points for supply against 1 (one) State one has to have supply in each or just in anyone of the three financial years. The method of assessment as provided in Annexure-B forms a second and contradictory eligibility criteria. The Clauses 4, 5 & 8 of Annexure-B are contrary to Clause 21(1), 21(n) & 21(q), giving room for arbitrariness and hence, liable to be interfered with.
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of the petitioners that the tender conditions have been tailor made to suit the specific interest of the private respondents and hence, this is against the public interest.
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strong. Such bidders can easily execute the work if awarded.
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the petitioners is baseless.
(1) Air India Ltd vs. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 ,
(2) Association of Registration Plates vs. Union of India & others , reported in (2005)
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1 SCC 679 ,
(3) Ameya Developers Private Ltd., vs State of Assam & others , reported in (2006) 2 GLT 483 and
(4) Jagdish Mandal vs. State of Orissa and others , reported in (2007) 14 SCC 517 .
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financial year (i.e. 01 April 2023 onwards) from Financial/Scheduled Bank, preferably Nationalized Bank mentioning the approximate value up to which the tenderer is capable of undertaking the contract. Financial Stability Certificate should mention the amount up to which the bidder is capable to do the business, and the same should be at least equal to or more than 50% of the total value of the tender. Clause 21(q) provides that the bidder should have turnover of manufacturing and supplying of Micro Nutrient Energy Dense Food against the orders placed in their own names directly by the Government department of any State Government/UT Government of not less than Rs.10.00 crores in a single year during the last three financial years, i.e. 2020-21, 2021-22 and 2022-23. The bidder should submit annual turnover Statement for at least one year during the last 3 years of sale exclusively from manufacture and supply of Micronutrient Fortified Energy Dense Food directly to Government department duly certified by a Chartered Accountant and also submit the order copies and certificates from concerned departments as the case may be.
Upto 20 crores: 5 points Upto 25 crores: 10 points Upto 30 crores: 15 points Upto 35 crores: 20 points.
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the other States as it is required to assess the experience of the bidder. The requirement of having strong financial health of the bidders for execution of the contract of present nature, in my view appears reasonable.
In the above case, the Court found that the committee, which evaluated the tenders, identified eight other qualifying conditions besides three mandatory criteria and while allotting marks, the mandatory criteria were allotted low weightage and for other qualifying conditions, which were described in the tender notice as "desirable" or "preferred" qualifications were given more weightage. Therefore, held to be irrational, which in my view, has no applicable in the present case.
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towards serving the larger public interest. In the name of freedom of entering contracts, the State cannot claim to have unfettered discretion.
It has further held that it is a matter of common knowledge that a school uniform is required to be stitched as per the measurement applicable to each individual student. Therefore, it is not under stood as to how and why a textile mill engaged in the business of manufacturing cloths has been found to be more suitable for manufacturing school uniforms. There is no discernible reason as to why the respondents had to choose owners of textile mills with over 100 crores turn over so as to prepare a panel of suppliers. The court while rejecting the justification of the authority not supported by record, has held that if quality control was the only reason, there is no reason to presume that a composite textile mill will not falter on such count. That apart quality of the uniforms and their timely supply can always be ensured by inserting stringent conditions in the contract agreement. A mere presumption that smaller business groups would fail to deliver quality items, which is merely school uniform, cannot be the justification for excluding such entrepreneur from the realm of the contract. Accordingly, found that the eligibility condition in the Eol, has been designed in fashion so as to ensure that the supply orders are received only by a few composite textile mill to the exclusion of all others, which would lead to concentration of wealth in a few hands to the common detriment and the respondent-authorities have failed to provide sufficient justification for incorporating the impugned eligibility conditions and the impugned eligibility clause is neither in consonance of the provisions of the tender nor is it aimed at serving the larger public interest. Therefore, on the facts of that case, it was found have inserted to favour a chosen bidder, which in my view, is distinguishable with the present case.
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intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in c accordance with relevant law could have reached"? And
(ii) Whether the public interest is affected?
If the answers to the above questions are in the negative, then there should be no interference under Article 226”.
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the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process 9the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is a called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the could should intervene.
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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.
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or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should interfere. While invoking power of judicial review in matters as to tenders or award of contracts, certain special features should be borne in mind that evaluations of tenders and awarding of contracts are essentially commercial functions and principles of equity and natural justice stay at a distance in such matters. If the decision relating to award of contract is bona fide and is in public interest, courts will not interfere by exercising powers of judicial review even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Power of judicial review will not be invoked to protect private interest at the cost of public interest, or to decide contractual disputes.
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challenge unless it is so tailor-made to favour some bidders and manifestly arbitrary and unreasonable, no judicial relief at the instance of a party which does not fulfill the requisite eligibility criteria can be granted. That apart, there is no overwhelming public interest and there is no materials to show that the terms of tender particularly the qualification points at Annexure-B has been incorporated and so tailor-made to favour some particular bidders or of any malafide against any person in substance, or collateral reasons for such prescription, except mere plea and submission to that effect by the learned Senior counsels for the petitioners.
JUDGE
Comparing Assistant
3 issues framed by the court
Whether the qualification points in Annexure-B of the tender notice are arbitrary, unreasonable, and devoid of nexus with the tender's objective.
Whether the State tendering authority violates Article 14 by including terms that favor specific bidders or exclude others unreasonably.
Whether the Court should interfere with the tender conditions regarding supply of RTE food items under judicial review.
Colour shows how this judgement treated each authority
Nandhini Delux Vs. Government of Andhra PradeshReferred¶41
Nandhini Delux Vs. Government of Andhra Pradesh
National High Speed Rail Corporation Limited vs. Montecarlo Limited and anotherReferred¶43
National High Speed Rail Corporation Limited vs. Montecarlo Limited and another
M.P. Power Management Company Limited, Jabalpur vs. Sky Power Southeast Solar India Private Limited and othersReferred¶44
M.P. Power Management Company Limited, Jabalpur vs. Sky Power Southeast Solar India Private Limited and others
Chatradhar Das and others vs. State of Assam and othersReferred¶112
Chatradhar Das and others vs. State of Assam and others
Air India Ltd vs. Cochin International Airport Ltd.Referred¶125
Air India Ltd vs. Cochin International Airport Ltd.
Association of Registration Plates vs. Union of India & othersReferred¶128
Association of Registration Plates vs. Union of India & others
Jagdish Mandal vs. State of Orissa and othersReferred¶130
Jagdish Mandal vs. State of Orissa and others
M/s Orion Health Foods Private Limited
M/s Aasray Foods Pvt Ltd
M/s Rausheen Udyog Limited
M/s Continental Milkose (India) Limited
M/s Abhinav Food Products
The State of AP
Kardak Ete
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
