M/S Mb Omm Vs the State of Assam and 5 Ors.

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GAHC010174172022

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2025:GAU-AS:10286

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

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Case No. : WP(C)/5687/2022

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M/S MB OMM GUIJAN GHAT, P.O- RANGAGORAH, GUIJAN, DIST- TINSUKIA, ASSAM, PIN786147, HAVING GST REGD NO.-18AVWPD8621M1ZU AND LICENSE NO. 10317017000176 ISSUED

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UNDER FOOD SAFETY AND STANDARDS ACT,2006 BY THE GOVT. OF ASSAM,

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COMMISSIONERATE OF FOOD SAFETY, ASSAM, UNDER HEALTH AND FAMILY WELFARE DEPARTMENT, ASSAM, A HOUSE BOAT, WHICH IS PROPRIETORIAL CONCERN OF PRASSANNA DAS, AGE -62 YRS, S/O- LATE PARSURAM DAS, R/O- VILLAGE GUIJAN, P.O- RANGAGORAH, P.S AND DIST- TINSUKIA

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VERSUS

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THE STATE OF ASSAM AND 5 ORS REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, TOURISM DEPARTMENT, GOVT. OF ASSAM, SACHIVALAYA, DISPUR, GUWAHATI- 781006, ASSAM.

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2:THE ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN (4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008

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REPRESENTED BY THE MANAGING DIRECTOR ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN (4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR

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GUWAHATI- 781008.

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3:THE MANAGING DIRECTOR

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ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN (4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008. 4:TECHNICAL EVALUATION COMMITTEE REP. BY ITS CHAIRMAN PRABHASH CH. SARMA ADDL. GEN. MANAGER (I) ASSAM TOURISM DEVELOPMENT CORPORATION LIMITED ASOM PARYATAN BHAWAN (4TH FLOOR) A.K. AZAD ROAD PALTAN BAZAR GUWAHATI- 781008. 5:PADMINI RESORTS REP. BY ONE OF ITS PARTNERS VIVEK AGARWAL BAZALTOLI BANGALI GAON P.O- RANGAGORAH P.S AND DIST- TINSUKIA ASSAM

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6:PRISMATIC HOTELS PRIVATE LIMITED A PRIVAATE LIMITED COMPANY REP. BY PRANJAL KUMAR MOHAN

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DIRECTOR OF PRISMATIC HOTELS PRIVATE LIMITED

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RANGAGORA ROAD AROMA RESIDENCY TINSUKIA ASSAM PIN-78612

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For the Petitioner(s) : Mr. S. Banik, Advocate For the Respondent(s) : Ms. P. Baruah, Advocate : Mr. R. S. Mishra, Advocate : Mr. M. Chetia, Government Advocate Date of Hearing : 05.08.2025 Date of Judgment : 05.08.2025

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. S. Banik, the learned counsel appearing on behalf of the Petitioner and Mr. M. Chetia, the learned Government Advocate appearing on behalf of the Respondent No.1. I have also heard Ms. P. Baruah, the learned counsel appearing on behalf of the Respondent Nos. 2, 3 and 4 and Mr. R. S. Mishra, the learned counsel appearing on behalf of the Respondent No.5. None appears on behalf of the Respondent No.6 when the matter was called for.

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The Respondent Corporation i.e. the Respondent No.2 herein had issued a press notice (QCBS) (e-procurement notice) bearing No. ATDC/2822/2017 dated 23.05.2022 inviting bids for Development, Operation and Management Contract for running three properties on contractual basis. The details of the said properties are:

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Sl. No.	Property Details	Period of Contract
(i)	Eco-Tourism Project at Nameri	5 + 5 years
(ii)	Eco-Tourism Project at Dibru-Saikhowa	5 + 5 years
(iii)	Eco-Tourism Project at Pobitora	5 + 5 years

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Pursuant to the said press notice, the Respondent Corporation had issued a detailed Notice Inviting Bid (QCBS) (e-procurement notice) bearing No. ATDC/2822/2017 dated 31.05.2022 indicating that bids are invited on

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contractual basis for 10 years (5 + 5 years) in respect to the aforementioned three projects. The present proceedings relate to the Eco Tourism Project at Dibru-Saikhowa.

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CASE OF THE PETITIONER:

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Nine bidders participated pursuant to the said tender process. Out of those nine bidders, four were held to be eligible which would include the petitioner, the respondent No.5, the respondent No.6 and one M/S Shanti Enterprise. However, the Respondent Corporation chose the respondent No.5 for awarding the contract for Development, Operation and Management for running the newly constructed Eco Tourism Project for tourist facilities at the Dibru-Saikhowa. It is under such circumstances, the petitioner has approached this Court by filing the present writ petition challenging the technical bid of the Respondent Nos. 5 and 6.

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The challenge to the Technical Bid of the Respondent No.5 were on three grounds. First, the Respondent No.5 did not submit online the Qualification Information Form which is contrary to Clause 5 of the bidding document.

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The second ground so taken is that the respondent No.5 had submitted the Experience Certificate which is self-certified which has no credibility on account of self-declaration of experience.

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The third ground so taken is that the yearly occupancy of 30% as required under Clause 3(iii) of the bidding document was also self-certified

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by the Respondent No.5 which on its own had no credibility.

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The challenge to the Technical Bid of the Respondent No.6 were on the following grounds.

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First, the Experience Certificate so required under Clause 3(ii) was not submitted by the Respondent No.6 for which the Respondent No.6’s bid was liable to be rejected.

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Secondly, the Respondent No.6 had not submitted the yearly occupancy certificate of 30% as is required under Clause 3(iii) of the bid document.

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On 29.07.2025, the instant writ petition was taken up for hearing. The technical broadsheet was produced before this Court. A copy of the said broadsheet was provided to Mr. S. Banik, the learned counsel appearing on behalf of the petitioner during the course of the hearing. The learned counsel appearing on behalf of the petitioner upon perusal thereof submitted that both the Respondent Nos. 5 and 6 did not comply with the requirements of Clause 3(v) of the bid document inasmuch as they did not submit the annual turnover for the period from 2017-18 to 2021-22 which was the mandate of Clause 3(v) of the bid document. Rather, the Respondent Nos. 5 and 6 only submitted the annual turnover for the period from 2016-17 to 2020-21 which is not as per the mandate of Clause 3(v) of the bid document.

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In view of the said submission made, this Court enquired with the Respondent Authorities and an opportunity was granted to file an additional affidavit-in-reply to the said submission made by the learned counsel for the petitioner. The additional affidavit was filed by the respondent Nos. 2, 3 and 4, the details of which this Court would make at a subsequent stage of this judgment.

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INTERIM ORDER PASSED BY THIS COURT:

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This Court vide an order dated 09.09.2022 passed an interim order that till the next date, the tender in question shall not be finalized. Thereafter, on 14.11.2022, notice was issued and the interim order thereupon was continued from time to time and extends till date.

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STAND OF THE RESPONDENTS:

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An affidavit-in-opposition was filed by the Respondent Nos. 2, 3 and 4 on 30.11.2023. In the said affidavit-in-opposition, the various steps followed for evaluating the bidders were mentioned. It was mentioned that the first step would be after opening of the Technical Bid, the “Cost of Bidding Document/EMD downloaded from the internet” would be opened first. It was mentioned that if the “Cost of the bidding document is not there or incomplete, the remaining bid document would not be opened and bid would be rejected”. The second step would be that the Managing Director of the Respondent Corporation would open the Cover-II based upon Cover-I and check the documents submitted with the Cover-II, Technical Bid and credentials etc. It was further mentioned that after the Technical Evaluation,

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the Managing Director of the Respondent Corporation shall decide the date of opening of the financial bid based upon the evaluation report.

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The Evaluation Report is based upon certain guidelines and assessed on a total of 100 marks. To be eligible for short listing in the Technical Bid, the Bidder is required to secure at least 60% marks in aggregate. The presentation date would be intimated later. The parameters for evaluation have been provided in the table at paragraph No.8 of the affidavit-inopposition and taking into account its relevance, the same is reproduced herein under:

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“ EVALUATION MATRIX

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Sl. No.	Particular	Max.
		Marks
1	Financial standing as certified by Bankers, Audited Profit & Loss A/C statement and Balance Sheet, Annual turnover in the last five years, evidence of access to adequate working capital. (minimum average turnover of Rs.1.00 Crore for last 5 years) 1 Crore - 2 Crore = 10 marks above 2 Crore – 3 Crore = 15 marks Above 3 Crore = 20 marks.	20
	2021-2022
	2020-2021
	2019-2020

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	2018-2019
	2017-2018
2	Experience in running a registered Hotel/Guest House/Resorts having restaurant or F&B services 3-4 years – 5 Marks Above 4-5 years – 10 marks Above 5years – 15 marks	15
3	Key personal available and proposed to be engaged for management and supervision of the project (consent letter & experience certificate of key personal should be furnished)	15
	Manager Bachelor’s degree/Diploma
	holder in hospitality or hotel management. (experience 3 years – 2 Marks) (experience above 3 years – 4 marks)
	Executive Bachelor’s degree/Diploma
	Chef holder in culinary arts or hotel management. (experience 3 years – 2 Marks) (experience above 3 years – 4 marks)
	Service Staff Bachelor’s degree/Diploma holder in hospitality,

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	business administration.
	(experience 3 years – 2 Marks) (experience above 3 years – 4 marks)
	Housekeeping services Diploma in Accommodation Operation and Management, Diploma in House Keeping Management (experience 3 years – 2 Marks) (experience above 3 years – 4 marks)	10
4 Prese	Should have a property of minimum 10 keys with yearly occupancy of 30% No. of keys:- Upto 10 keys – 5 marks Above 10-20 keys – 8 marks Above 20 keys – 10 marks ntation:-	10
	a) Investment to be made for the	40
	upgradation to the property.
	b) Safety precautions to be taken for
	employees and guests and Sanitation facilities. c) Beautification & Landscaping. d) Methodology [Development, Operation and Management Contract for running the newlyconstructed Eco-Tourism Projects for

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tourist facilities at Dibru-Saikhowa.)
e) Proficiency in developing marketing and
sales campaigns.
f) Linkages with the travel trade – domestic
and international.
g) Ability to handle international visitors –
Food preferences and other requirements.
h) Demonstration of managing a wildlife
tour.
Total marks 100”

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It is further relevant to take note of from the said affidavit-inopposition that on the above parameters as quoted, to be qualified for the technical bid, the bidder has to secure at least 60% marks in aggregate.

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It was further mentioned in the affidavit-in-opposition that out of the nine bidders, four were found eligible which included the petitioner, the Respondent No.5, the Respondent No.6 and one M/S Shanti Enterprise. But in the evaluation so conducted in terms with the parameters, both the petitioner and M/S Shanti Enterprise could not secure 60 marks and were therefore held to be technically not qualified and on the other hand the respondent No.5 secured 75 marks whereas Respondent No.6 secured 63 marks and therefore on the basis of such assessment being made, the Respondent Corporation chose to award the contract to the Respondent No.5.

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The Respondent Corporation further dealt with the allegations contained in paragraph No.22 of the writ petition wherein the petitioner questioned the technical competence of the Respondent Nos.5 and 6. It was mentioned in the said affidavit-in-opposition that insofar as the allegation against Respondent No.5 being not competent was totally misconceived inasmuch as the allegations that the Qualification Information Form was not submitted online was contrary to Clause 5 of the bidding document. It was stated that the Qualification Information Form was duly submitted by the Respondent No.5. Insofar as the Experience Certificate as well as the Yearly Occupancy Certificate being self-attested, it was stated that the said certificates having been self-attested cannot be a ground for disqualification of the Respondent No.5.

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Insofar as the allegations made by the petitioner as regards to Respondent No.6 that the Experience Certificate as required under Clause 3(ii) was not submitted, it was stated that Respondent No.6 had submitted a certificate issued by a Chartered Accountant to the effect that the Respondent No.6 is engaged in the business of running hotel, restaurant and bar for 5 years starting from F.Y. 2016-17 to F.Y. 2020-21 and as such, the mandate of Clause 3(ii) have been duly met by Respondent No.6.

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On the allegation that the Respondent No.6 did not submit the Yearly Occupancy Certificate of 30% as was required under Clause 3(iii), it was stated that the Respondent No.6 while submitting the bid document had categorically shown that the Aroma Residency (the unit of the Respondent No.6) has a property of 36 keys with yearly occupancy of more than 75%.

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The record further reveals that Respondent No.5 has filed an affidavitin-opposition supporting the stand of the Respondent Nos. 2, 3 and 4 in the affidavit-in-opposition.

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As already observed in the previous segments of the instant judgment, on 29.07.2025 when the broadsheet was produced before this Court, the learned counsel appearing on behalf of the petitioner had further raised the issue as regards the non-compliance to Clause 3(v) of the bidding document. This Court taking into account that the said aspect was not a pleaded case of the petitioner and it only came to light during the course of the hearing on 29.07.2025, an opportunity was given to the Respondents to file an affidavit as regards the non-compliance to Clause 3(v). In this regard, it is pertinent to mention that on 01.08.2025, the Respondent Nos. 2, 3 and 4 filed an additional affidavit.

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In the said additional affidavit, it was mentioned that the NIT was issued on 31.05.2022 with the last date of submission being 27.06.2022 and as such, some of the bidders were not able to provide the financial reports namely the balance sheets, profit and loss statements, auditor’s report (in case of companies/corporation) etc. supporting their turnover for the Financial Year 2021-22 and the same was accepted. It was also mentioned that those bidders who could not submit the documents for the financial year 2021-22 duly submitted the annual turnover for the year 2016-17. It was also stated that in view of the difficulties so faced by some of the bidders, the Respondent No.4 took the average of the annual turnover of the eligible bidders from the Financial Year 2017-18 to 2020-21 instead of 2021-

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22 and it was found that even after taking only four years of the annual turnover, the Respondent Nos. 5 and 6 had the average turnover of more than Rs.1.00 crore for five years.

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It is further mentioned in the said additional affidavit that in the Power Point presentation so made by the Petitioner as well as the Respondent Nos. 5 and 6, the petitioner’s Power Point Presentation was unsatisfactory taking into account that the investment proposed by the Petitioner for development was a meager Rs.28,85,000/- and taking into account the reserve price in the NIT being Rs.1,30,000/- per month which comes to Rs.78,00,000/- for a period of 5 years, the investment of Rs.28,85,000/- was found negligible. On the other hand, the Respondent No.5 proposed an investment of Rs.2,03,00,000/- for which the Respondent No.5 was awarded 31 marks compared to the petitioner only 8 marks.

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In the backdrop of the above pleadings, this Court had duly heard the learned counsels appearing on behalf of the parties whose contentions were on the lines of their pleaded case except the submission made by the learned counsel for the Petitioner on 29.07.2025 as noted above.

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ANALYSIS AND DETERMINATION:

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The point which arises for consideration is whether the present case is a fit case for exercise of the powers of judicial review.

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This Court had taken note of the bidding document enclosed as Annexure-C to the writ petition. The allegations so made in the writ petition

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more particularly at paragraph No.22 were that the Respondent No.5 did not submit the Qualification Information Form online is belied by the statement made by the Respondent Nos. 2, 3 and 4 in the affidavit-in-opposition. Insofar as the allegations relating to the Respondent No.5’s experience and that the Respondent No.5 has a property of minimum 10 keys with yearly occupancy of 30% were self-certified only, it is seen from the bidding document that the Bid Documents do not forbid such documents being placed on self certification. Further to that, the allegations as regards the Respondent No.6’s eligibility made at paragraph No.22 also do not hold water in view of the stand taken by the Respondent Nos. 2, 3 and 4 in their affidavit-in-opposition.

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Let this Court now deal with the contention of the learned counsel appearing on behalf of the petitioner on Clause 3(v) whereby the learned counsel emphasized that on account of non-submission of the last five years of the balance sheet, profit and loss statements, auditor’s report which would be from 2017-18 to 2021-22, the bids of the Respondent Nos. 5 and 6 ought to have been held to be technically not eligible. This Court duly takes note of the Schedule mentioned in the bidding document which stipulates that the last date and time of manual submission of the hard copy of the technical bid is 27.06.2022.

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The Respondent No.5 is a partnership firm whereas Respondent No.6 is a registered company. The Respondent Authorities in their wisdom taking into account that it was not possible to submit the financial reports, balance sheet, profit and loss statements, auditor’s report for the year 2021-22

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considered it that the Respondent Authorities would only consider four years of the annual turnover i.e. from 2017-18 to 2020-21 and not 2016-17 which the Respondent Nos. 5 and 6 duly submitted and then upon evaluation found that the annual turnover of the Respondent Nos. 5 and 6 even taking into account 4 years had an average of more than Rs.1,00,00,000/- as a minimum average turnover for the last 5 years.

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This Court finds it apposite herein to take note of that when the tendering authority issues a tender, the settled principles of law stipulates that fair play in the joints is a necessary concomitant for an administrative authority functioning in an administrative sphere or quasi administrative sphere more particularly in tender matters. In other words, the tendering authority has to be given certain latitude to choose the best bidder amongst the bidders as per the mandate of the bid document, subject to such discretion being exercised within the confines of Article 14 of the Constitution. In this context, this Court finds it relevant to refer to the observations of the Supreme Court in the case of Sterling Computers Limited Vs. M/S M & N Publications Limited and Others reported in (1993) 1 SCC 445 and more particularly to paragraph Nos. 12 and 19 which are reproduced herein under:

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“ 12. At times it is said that public authorities must have the same liberty as they have in framing the policies, even while entering into contracts because many contracts amount to implementation or projection of policies of the Government. But it cannot be overlooked that unlike policies, contracts are legally binding commitments and they commit the authority which may be held to be a State within the meaning of Article 12 of the Constitution in many cases for years. That is why the courts have impressed that even in

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contractual matters the public authority should not have unfettered discretion. In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by courts while dealing with public property. It is not possible for courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasijudicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of “play in the joints” to the executive.

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19. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision.”

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The tendering authority in the instant case taking into account that it was not possible to submit the profit and loss account/auditor’s report by the last date for the year 2021-22 chose to disregard the said, however keeping the minimum average turnover of Rs.1,00,00,000/- for the last five years intact. The said decision of the Respondent Authorities cannot be said to be unfair inasmuch as the necessity of having the average annual turnover of Rs.1,00,00,000/- (Rupees one crore) only for five years was kept intact. The Respondent Authorities after evaluation found that the Respondent Nos. 5 and 6 have the average annual turnover for five years of Rupees One Crore even after taking only four years i.e. from 2017-18 to 2020-21. In the opinion of this Court, the act on the part of the Respondent Authorities to accept that the Respondent Nos. 5 and 6 as eligible do not appear to be unreasonable, unfair or irrational violating Article 14 of the Constitution.

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In view of the analysis above, the question of interference with the decision of the Respondent Corporation in the present facts does not arise as this Court does not find that there was any infraction by the Respondent Authorities to the mandate of Article 14 of the Constitution.

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Accordingly, this Court does not find any good grounds for interference for which the writ petition stands dismissed. However, in the facts of the instant case, this Court is not inclined to impose any costs.

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Interim order passed earlier stands vacated.

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JUDGE

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Comparing Assistant

M/S Mb Omm v. the State of Assam and 5 Ors.

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M/S Mb Omm v. the State of Assam and 5 Ors.

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