Page No.# 1/15 GAHC010081742025 2025:GAU-AS:9340 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/152/2025 INDIAN OIL CORPORATION LTD. AND 4 ORS. REPRESENTED BY ITS EXECUTIVE DIRECTOR BONGAIGAON REFINERY, P.O. DHALIGAON, DIST. CHIRANG, DIST. CHIRANG/ASSAM 783385 2: THE GENERAL MANAGER I/C (HR) INDIAN OIL CORPORATION LTD. DIRECTOR BONGAIGAON REFINERY P.O. DHALIGAON DIST. CHIRANG ASSAM 783385 3: THE DEPUTY GENERAL MANAGER (CONTRACTS) INDIAN OIL CORPORATION LTD. BONGAIGAON REFINERY P.O. DHALIGAON DIST. CHIRANG ASSAM 783385 4: THE SENIOR MANAGER (EMPLOYEES SERVICE) INDIA OIL CORPORATION LTD. BONGAIGAON REFINERY P.O. DHALIGAON DIST. CHIRANG ASSAM 783385 5: THE CHIEF MANAGER (EMS) INDIA OIL CORPORATION LTD BONGAIGAON REFINERY P.O. DHALIGAON DIST. CHIRANG ASSAM 78338 VERSUS Page No.# 2/15 M/S S.H ENTERPRISE A SOLE PROPRIETORSHIP OF MD SAFIQUL HUSSAIN, S/O LATE HUSSAIN ALI, IS REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR. SAFIQUAL HUSSIAN, S/O LATE HUSAIN ALI, BLOCK B, 2ND FLOOR, GMCH, ROAD, BHANGAGARH, GUWAHATI, KAMRUP, ASSAM 781005 Advocate for the Petitioner : MISS. R R KAKATI, Advocate for the Respondent : MR. R SHARMA, MS P PHUKAN BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 17.07.2025 (K.R. Surana, J) Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Ms. R.R. Kakati, learned counsel for the appellants. Also heard Mr. R. Sharma, learned Senior Counsel assisted by Ms. P. Phukan learned counsel for the respondent. 2. By filing this intra-court appeal, the appellants, who are the respondents in W.P.(C) No. 738/2025, have assailed the order dated 26.03.2025, passed by the learned Single Judge in I.A.(Civil) No. 775/2025 [in W.P.(C) No. 738/2025]. 3. In brief, the case of the appellants is that a tender was issued by them inviting bids from the intending bidders for providing catering and other services in Bongaigaon Refinery Guwahati Guest House and Office Complex of the appellant no.1. The GEM contract bearing no. Gemc- 511687717663760 dated 24.03.2023, following the selection process, was issued in favor of the respondent for a period from 01.05.2023 to 30.04.2025, for a total value of Page No.# 3/15 Rs.2,80,40,977.20 (Rupees Two crore eighty lakh forty thousand nine hundred ninety seven and paise twenty only). The said contract was followed by issuance of a Letter of Award (LOA for short) dated 29.03.2023, which were both accepted by the respondent. 4. It would suffice to mention that certain disputes arose between the appellant and respondents for which the respondent was not able to provide catering services. Therefore, the respondent had approached this Court by filing W.P.(C) No. 3804/2023, wherein notice was issued vide order dated 28.06.2023. However, during the pendency of the said writ petition, the contract of the respondent was terminated on 06.11.2023. Accordingly, the respondent had again approached this Court by filing W.P.(C) No. 6596/2023. Both the writ petitions were allowed by the learned Single Judge of this Court by a common judgment and order dated 06.09.2024. The operative part of the said judgment and order is extracted below:- “17. In view of the aforesaid facts and circumstances, this Court is of the opinion that a case for interference is made out. Accordingly, the termination order dated 06.11.2023 is interfered with. Consequently, the respondent- Refinery is directed to allow the petitioner to complete the contractual liabilities in terms of the work order dated 29.03.2023. It is also made clear that the respondent- Refinery cannot restrain the petitioner from engaging its own men for discharge of the duties. 18. Since, the contract was for two years and because of the issue involved, the petitioner could not discharge the same, the petitioner would have the liberty to file application for allowing to discharge the functions for the full term and in case such application is made, the same would be considered by the respondent- Refinery in accordance with law and by passing of a speaking order. 19. Both these writ petitions accordingly stand allowed.” 5. It may be mentioned that while the appellants did not prefer any appeal against the said common judgment and order dated 06.09.2024, but the canteen workers of the erstwhile contractor had filed a writ appeal, which was Page No.# 4/15 registered and numbered as W.A. 375/2024 - - Dilip Kumar Sarmah & 21 Ors. v. M/s. S.H. Enterprise & 5 Ors. 6. Moreover, pursuant to the said common judgment and order, the Manger (EMS) of the Bongaigaon Refinery vide communication dated 22.10.2024, had directed the respondent, inter alia, to complete the contractual obligation of the contract for the remaining period of contract, i.e., up to 30.04.2025, subject to outcome of W.A. 375/2024. Accordingly, the respondent was advised to confirm acceptance of the said contract as well as modalities of taking over the sight for execution of the contract by completing required formalities. 7. The said speaking order dated 22.10.2024, was challenged by the respondent by filing W.P.(C) No. 6142/2024, wherein notice was issued vide order dated 22.11.2024 and the said writ petition is pending for adjudication before this Court. 8. In the meanwhile, the appellants had issued a fresh tender (NIT) dated 01.02.2025, vide Bid No. DGEM/2025/B/5895438 and Tender No. BN25HR018 for submitting bids for providing catering services at Indian Oil Corporation Limited, Bongaigaon Guest House and Office Complex at Guwahati. The said tender process has been challenged by the respondent by filing W.P.(C) 738/2025. The following prayers are made in the said writ petition:- “In view of the above, the writ petitioner humbly prays that Your Lordships may be pleased to admit this petition, call for the records issuing a rule and quash the NIT dated 01.02.2025, vide Bid No. DGEM/2025/B/5895438 and Tender No. BN25HR018 and further be pleased to: Issue a writ in the nature of Certiorari quashing the NIT dated 01.02.2025, vide Bid No. DGEM/2025/B/5895438 and Tender No. BN25HR018 for catering services by the respondents at BGR Guwahati Guest House, Jayanagar Road, Sixmile, Guwahati. And Page No.# 5/15 In the interim stay the NIT dated 01.02.2025, vide Bid No. DGEM/2025/B/5895438 and Tender No. BN25HR018 until the issues regarding the previous contract are resolved. AND/OR Pass any order or orders that this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.” 9. In connection with the said W.P.(C) No. 738/2025, the learned Single Judge, by order dated 12.02.2025, while issuing notice, as an interim measure directed that the tender process initiated by NIT dated 01.02.2025 shall not be finalized without leave of this Court till the next date fixed. The relevant observations and directions in the said order are quoted below:- “Meanwhile, needless to say that the directions contained in the order dated 06.09.2024 passed in WP(C) No. 3804/2023 and WP(C) No. 6596/2023 be complied with permitting the petitioner to operate the premises as directed. List on 05.03.2025.” 10. The appellants had filed an interlocutory application for vacation/alteration/modification of the interim order dated 12.02.2025, passed in W.P.(C) No. 738/ 2025, which was registered and numbered as I.A.(C) No. 775/ 2025. In the said application, this Court, by order dated 26.03.2025, amongst others, took into consideration that by common order dated 06.09.2024, passed in W.P.(C) No. 3804/2023 and WP(C) No. 6596/2023, by which the respondent was permitted to complete the contractual obligations for the remaining period of contract up to 30.04.2025 and also the further the submission that the contractual obligations of the respondent would be coming to an end on 30.04.2025, and expressed disinclination to vacate the interim order dated 12.02.2025, at that stage, on the ground that if the interim order dated 12.02.2025 is vacated and the appellants are permitted to finalize the NIT dated 01.02.2025, the purpose of filing W.P.(C) No. 6142/2024 would be Page No.# 6/15 defeated. 11. In brief, amongst others, the learned senior counsel for the appellants has submitted that the period of the Contract dated 24.03.2023 has expired on 30.04.2025. Therefore, the appellants have issued/invited Bids on 01.02.2025, for fresh period of contract through the GEM portal for providing catering and other services in the Bongaigaon Refinery’s, Guwahati Guest House and Office Complex and the last date for submissions of the bids was 15.02.2025. It has been submitted that the respondent, instead of participating in the said tender process, had assailed the said NIT dated 01.02.2025 by filing W.P.(C) No. 738/2025. It has been further submitted that as the previous contractual period had expired on 30.04.2025, the respondent had no right to continue and thus, having not participated in the fresh tender process, the challenge by the respondent to the subsequent NIT issued on 01.02.2025, is not maintainable. In support of his submissions, the learned senior counsel for the applicant has relied in the case of Damodar Valley Corporation v. K. K. Kar, (1974) 1 SCC 141. 12. Per contra, the learned senior counsel for the respondent has submitted that by imposing conditions which are not part of the contract to engage workers who had been working with previous contractors, the appellants had restrained the respondent from engaging their workers for which the respondent was driven out of work in utter violation of the tender process. Accordingly, by common judgement and order dated 06.09.2024, passed by the learned Single Judge in W.P.(C) No. 3804/2023 and W.P.(C) No. 6596/2023, the said writ petitions filed by the respondent was allowed and direction was issued to the appellants to allow the respondent to complete the period of contract upto 30.04.2025 and to move the authorities for allowing the respondent to discharge its contractual obligations for the full two year term. Page No.# 7/15 13. It has also been submitted that the prayer for allowing the appellants to complete their contract for the full term was not accepted. Thus, this is a case where without filing any appeal against the common judgment and order dated 06.09.2024, passed in WP(C) No. 3804/2023 and WP(C) No. 6596/2023, the appellants are seeking to circumvent and/or flout the said judgement and order by their so called speaking order dated 22.10.2024, by allowing the respondent to carry out the contract only upto 30.04.2025, instead of full two-year tenure. 14. It has also been submitted that the contract between the parties was a high value contract. Therefore, if the respondent is allowed to work only for about 5 (five) months till 30.04.2025, instead of the full two years contract period, the respondent would not be able to recover their investment and moreover, not to speak of earning any profit, the respondent would suffer huge loss. Accordingly, it has been submitted that the appellants have challenged the subsequent tender/NIT issued on 01.02.2025, as well as the speaking order dated 22.10.2024 issued by the Manager (EMS) of Refineries Division, Indian Oil Corporation Ltd. It has also been submitted that if the interim stay order is vacated, the two writ petitions filed by the respondent, being W.P.(C) No. 6142/2024 as well as W.P.(C) No. 738/2025 would both become infructuous. 15. The learned Senior Counsel for the respondent has posed a query as to whether by vacating the interim stay against finalization of the tender process, this Court would permit flouting and/or willful disobedience of the common judgment and order dated 06.09.2024, passed by the learned Single Judge in W.P.(C) No. 3804/2023 and W.P.(C) No. 6596/2023. In support of his submissions, the learned Senior Counsel for the respondent has placed reliance on the case of ABL International Limited v. Export Credit Guarantee Corporation of India Limited, (2004) 3 SCC 553, and it has been submitted that even if Page No.# 8/15 disputed questions of fact arise for determination in a writ petition filed under Article 226 of the Constitution of India, there is no absolute Bar for the Constitutional Courts to entertain a writ petition, though it may have arisen out of a contractual obligation and to refer the matter to Civil Court. 16. Considered the submissions made by the learned senior counsel for the appellants and the respondent and also considered the materials available on the record. 17. It is seen that the emphasis of the learned senior counsel for the appellants is that after passing of the speaking order dated 22.10.2024, the respondent did not come forward to carry out the contract work of providing catering and other services in the Bongaigaon Refinery’s Guwahati Guest House and Office Complex of the appellant no.1. 18. It may be stated that though there is no statement in the Memo of Appeal to that effect, but the learned senior counsel for the respondent, in course of his submissions, has admitted that the contract site was not taken over by the respondent and it was submitted that by doing so, instead of getting a full two-year contract period, the respondent would only have got less than six months contract period and thus, the respondent would have suffered huge financial loss and would not have recovered even a fraction of his investment. Thus, it was submitted by the learned senior counsel for the respondent that while inviting the appellants to continue to provide service for remaining period of upto 30.04.2025, no order has been passed by the appellants regarding the respondent’s prayer for extension of contract for a full two-year term. 19. Thus, it is not in dispute that the appellant had -(a) not taken over the contract area, i.e. the Bongaigaon Refinery’s Guwahati Guest House and Office Page No.# 9/15 Complex of the appellant no.1 and thus, the respondent has not provided catering and other services; and (b) that the respondent has not participated in the tender process. 20. There is no dispute at the Bar that the contract between the appellants and the respondent was for providing catering services in the Guest House and Office Complex of the appellant no. 1 at Guwahati. Notwithstanding the challenge to the non-extension of the tenure of contract for a full two-year term, the normal tenure of the contract has otherwise expired on 30.04.2025. 21. Thus, if there is no effective catering, it cannot be said that the appellants would not suffer greater degree of inconvenience. It can be presumed that in a Guest House of the Company like Indian Oil Corporation Ltd., the appellants would be handling a lot of guests and visitors. It may also be presumed that the appellants would also be accommodating visiting technical experts, other logistic experts, business partners, corporate guests, management personnel, refinery personnel and guests to their refinery. Moreover, there may be many workers serving in the office complex of the appellant. The guests in the Guest House and the employees in the office complex cannot be left neglected by the appellants without providing catering services. 22. Therefore, the Court is of the considered opinion that the appellants have been able to demonstrate the existence of prima facie case in favour for vacating the interim stay operating against finalization of the tender issued on 01.02.2025. For whatsoever good reason that the respondent may have, the respondent has not commenced its catering service despite speaking order dated 22.10.2024, Thus, the appellants have been deprived of being offered catering services in their Guwahati Guest House and Office Complex. Page No.# 10/15 23. The specific submissions of the learned senior counsel for the respondent was that if they accept the contract for the limited period of upto 30.04.2025, the respondent would suffer loss and would not be able to recover their investment. Therefore, any loss that the respondent may suffer can be calculated and/or computed in terms of money. If that be so, then the respondent is not entitled to stay against finalization of tender dated 15.02.2025. The appellants can maintain a suit for recovering damages. 24. It is the considered opinion of the Court that if the appellants are unable to obtain catering services in their Guwahati Guest House and Office Complex, they would suffer comparatively higher degree of irreparable loss and injury, which cannot be computed or compensated in terms of money. If corporate and/or other guests are not provided with catering services in the guest house or in the office complex, the corporate image of the appellant no. 1 is likely to suffer irreparably. 25. Moreover, the interest of the respondent is only limited to the outcome of the decision in the two writ petitions filed by them, i.e. W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025. The said interest can be protected by providing that the finalization of tender dated 15.02.2025, and contract agreement arising thereof would be subject to outcome of the said two writ petitions. 26. In this case, the respondent has not started to provide catering service despite common judgment and order dated 06.09.2024, passed by this Court in W.P.(C) No. 3804/2023 and W.P.(C) No. 6596/2023, and despite speaking order vide communication dated 22.10.2024, issued by the Manager EMS, Refineries Division, Indian Oil Corporation Limited. Therefore, the floating of a fresh tender/NIT for a period commencing after expiry of the respondent’s contract period upto 30.04.2025, cannot be held to be mala fide or shocking to the Page No.# 11/15 conscience of the Court. 27. It is admitted by both sides that the period of contract was for two years. It is not disputed that otherwise the tenure of the contract would have been over on 30.04.2025. Therefore, if the respondent is allowed to continue to provide service for a full two-year period commencing from now, it would be necessary for the appellants and the respondent to enter into an agreement or some kind of arrangement for the catering services, which may or may not include consensus of both sides on rate of items. Be that as it may, technically, there exists no agreement between the appellants and the respondent as on date. The extension of contract would be dependent on the decision of this Court in W.P.(C) No. 6142/2024. 28. Thus, as these aspects were not considered in the impugned order dated 26.03.2025, the Court is of the considered opinion that the said order calls for a limited interference with the impugned order. 29. In the case of Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, the Supreme Court of India has observed to the effect that 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". It was also observed that 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. It has been observed that a contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions and the principles of equity and natural justice stay at a distance. It has been held that 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 Page No.# 12/15 review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. It has been also held that 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 succor to thousands and millions and may increase the project cost manifold. 30. In the case of National High Speed Rail Corporation Ltd. v. Montecarlo Limited & Anr., (2022) 6 SCC 401, the Supreme Court of India has held to the effect that the Court, before interfering in a contractual matter in exercise of powers of judicial review should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or 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 accordance with relevant law could have reached”?; and (ii) whether public interest is affected? 31. In the case of Damodar Valley Corporation (supra), the Supreme Court of India had observed as follows:- “11. After a review of the relevant case law. Subba Rao, J., as he then was, speaking for the majority enunciated the following principles: "(1) An arbitration clause is a collateral term of a contract as distinguished from its substantive terms; but none the less it is an integral part of it; (2) however comprehensive the terms Page No.# 13/15 of an arbitration clause may be, the existence of the contract is a necessary condition for its operation; it perishes with the contract; (3) the contract may be non est in the sense that it never came legally into existence or it was void ab initio; (4) though the contract was validly executed, the parties may put an end to it as if it had never existed and substitute a new contract for it solely governing their rights and liabilities thereunder; (5) in the former case, if the original contract has no legal existence, the arbitration clause also cannot operate, for along with the original contract, it is also void; in the latter case, as the original contract is extinguished by the substituted one, the arbitration clause of the original contract perishes with it; and (6) between the two fall many categories of disputes in connection with a contract, such as the question of repudiation, frustration, breach etc. in those cases it is the performance of the contract that has come to an end, but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. As the contract subsists for certain purposes, the arbitration clause operates in respect of these purposes." In those cases, as we have stated earlier, it is the performance of the contract that has come to an end but the contract is still in existence for certain purposes in respect of disputes arising under it or in connection with it. we think as the contract subsists for certain purposes, the arbitration clause operates in respect of those purposes.” 32. Moreover, merely because W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025, filed by the respondent are pending for adjudication, and merely because the finalization of the fresh tender has been stayed, but the pendency of the said writ petitions or the nature of stay granted, in the considered opinion of the Court, would not amount to extension of the contract, the tenure of which had expired on 30.04.2025. Thus, there has to be a positive order/ direction by the Court to the appellants to extend the period of contract so that the respondent can enjoy the continuance of contract for two-year tenure, as prayed for. 33. In the present case in hand, the appellants have to provide catering services to their guests in their Guwahati Guest House and to employees and visitors in their Guwahati Office. If such service is not allowed till the two writ petitions filed by the respondent, i.e. W.P.(C) No. 6142/2024 and W.P.(C) No. Page No.# 14/15 738/2025 are decided, essential service to guests and employees would suffer. 34. Be that as it may, as the common judgment and order dated 06.09.2024, referred above, has attained finality and moreover, the respondent has already assailed the speaking order dated 22.10.2024 by filing W.P.(C) No. 6142/2024 and has also assailed the tender dated 15.02.2025, the Court is of the considered opinion that the interest of both sides would be protected by conditionally interfering with the order dated 26.03.2025, passed by the learned Single Judge in I.A.(C) No. 775/2025, by directing that the finalization of the NIT dated 01.02.2025 and the resultant contract, if any, shall be subject to outcome/ decision of this Court in W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025. In other words, while settling the tender work with the successful bidder in the NIT dated 01.02.2025, before entering into a contract agreement with the successful bidder, the appellants shall make it clear to the successful bidder that the contract would be subservient to and/or subject to the decision of this Court in W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025. 35. In the said manner, the interest of the appellants as well that of the respondent would be protected and the two writ petitions, being W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025, filed by the respondent would not be frustrated. 36. Accordingly, the appellants are directed to file an affidavit in the said two writ petitions i.e. W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025, that they have made the finalization of NIT dated 01.02.2025 and resultant contract agreement subservient to and/or subject to the decision of this Court in W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025. Such an affidavit shall be filed within a period of two weeks from the date of the order. Page No.# 15/15 37. Accordingly, the impugned order dated 26.03.2025, has been conditionally interfered with. Thus, it is made clear that unless and until an affidavit as directed hereinbefore is filed, the order dated 26.03.2025, passed by the learned Single Judge in I.A.(C) No. 775/2025, shall continue to hold the field. The stay vide interim order dated 12.02.2025, passed in W.P.(C) No. 738/2025, shall stand vacated as and when the affidavit, as directed above, is filed by the competent authority of the appellants. 38. Moreover, it is further made clear that if the affidavit is not filed within the time as allowed hereinbefore, failing which this order shall stand lapsed and revoked by efflux of time, without requiring any further order of the Court. 39. Before parting with the records, it is also clarified that any observations made in this order is limited to this order and as the merit of the case of the parties in the pending writ petitions have not been gone and/or entered into. Hence, none of the parties to the said two writ petitions shall suffer any prejudice whatsoever when W.P.(C) No. 6142/2024 and W.P.(C) No. 738/2025 are heard and decided on its own merit, without being influenced by this order. 40. This intra-court is conditionally disposed of on terms and to the extent as indicated above. 41. The parties are left to bear their own cost. JUDGE JUDGE Comparing Assistant