Page No.# 1/25 GAHC040013932025 2025:GAU-AP:1184 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/386/2025 M/s T R Enterprises a sole proprietorship concern, represented by tis proprietor Shri Tokar Rigia, resident of Rigia Village, PO and PS Taliha, Upper Subansiri District, Arunachal Pradesh. VERSUS The State of AP and 5 Ors represented by the Secretary, Rural Development, Govt of Arunachal Pradesh, Itanagar 791111 2:The Director Age: 0 Occupation : Rural Development Govt of Arunachal Pradesh Itanagar 791111 3:The Joint Director Age: 0 Occupation : Rural Development Govt of Arunachal Pradesh Itanagar 791111 4:The Chairman Age: 0 Occupation : Tender Evolution Committee Daporijo Upper Subansiri District Arunachal Pradesh. 791122 Page No.# 2/25 5:The Project Director Age: 0 Occupation : DRDA Daporijo Upper Subansiri District Govt of Arunachal Pradesh. 791122 6:M/s RGM Enterprise Age: 0 Occupation : a sole proprietorship concern represented by Shri Raju Ging Maling resident of Pakpu Maling PO and PS Taliha Upper Subansiri District Arunachal Pradesh 79112 Advocate for the Petitioner : Ojing Pada, Dada Pangu,A Dhar Advocate for the Respondent : GA (AP), Karmu Chotton,K Gao,Nani Kuru,Honi Tana Tara,H Rahman,Parswajyoti Das Nair,Nikita Danggen :::BEFORE::: HON’BLE MR. JUSTICE KARDAK ETE JUDGMENT (ORAL) 28.10.2025 Heard Mr. O. Pada, learned counsel for the petitioner. Also heard Mr. N. Ratan, learned Additional Advocate General for State respondent Nos. 1 to 5 and Ms. N. Danggen, learned counsel for the private respondent No. 6. 2. By filing this writ petition, the petitioner has put to challenge the Letter of Intent (‘LOI’ for short) dated 06.06.2025, issued by the Joint Director, Rural Development Department in favour of the respondent No. 6, namely, M/s RGM Page No.# 3/25 Enterprise, for procurement of materials under MGNREGA 2025-26 in respect of CD Block Payeng, Upper Subansiri District, pursuant to the NIT dated 11.04.2025 for an estimated cost of Rs. 3,55,15,701.00/- (Rupees three crores fifty five lakhs fifteen thousand seven hundred one) only on the ground that the respondent No. 6 is not eligible to participate in the tender on being not fulfilling the requirements/terms of tender. 3. The Department of Rural Development, Government of Arunachal Pradesh, issued a Notice Inviting Tender dated 11.04.2025, inviting supply item rate tender from eligible and registered contractors from APPWD/CPWD/BRO/GREF/APWD of appropriate categories of Class-II, domiciled within the jurisdiction of Assembly Constituency, which shall be governed by the Arunachal Pradesh District Based Entrepreneurs and Professions (Incentives, Development and Promotional) (Amendment) Act, 2020 (hereinafter referred to as the Entrepreneurs Act, 2020 in short) for supply of materials under MGNREGA 2025-26 in respect of Package-IX, CD Block Payeng in the District of Upper Subansiri. 4. Pursuant thereto, the petitioner submitted his tender documents by quoting a bid amount of Rs. 3,27,58,958.51 (Rupees three crore twenty seven lakhs fifty eight thousand nine hundred fifty eight and fifty one paise) only. The petitioner claims to be a domicile of the concerned Assembly Constituency under Payeng CD Block and a registered Class-II (B&R) Contractor under the Civil Category, duly enlisted under Arunachal Pradesh Enlistment of Contractors in Works Department Rules, 2008 (hereinafter referred to as the AP Enlistment Rules, 2008 in short). 5. Along with the petitioner, 2 (two) other firms, namely, M/s RGM Enterprise (respondent No. 6 herein) and M/s LY Enterprise, have participated in the said Page No.# 4/25 tender process. On evaluation of the technical bids, the bid of M/s LY Enterprise was rejected on 30.04.2025, leaving the petitioner and respondent No. 6 as the only eligible bidders for the financial bid. On evaluation of the financial bids, the petitioner was found to have quoted an amount of Rs. 3,27,58,958.51 (Rupees three crore twenty seven lakhs fifty eight thousand nine hundred fifty eight and fifty one paise) only, which is -7.76% below the estimated cost put to tender, while the respondent No. 6 quoted an amount of Rs. 3,27,58,253.27 (Rupees three crores twenty seven lakhs fifty eight thousand two hundred fifty three and twenty seven paise) only, which is also stated to be -7.76% below the estimated cost put to tender. 6. It is the contention of the petitioner that despite both the petitioner and respondent No. 6 having quoted the same amount, which is -7.76% below the estimated cost put to tender, the respondent authorities have arbitrarily approved the rate quoted by respondent No. 6. Consequently, the impugned LOI dated 06.06.2025 was issued in favour of respondent No. 6 for procurement of materials under MGNREGA 2025-26 in respect of CD Block Payeng, Upper Subansiri District. The petitioner contends that respondent No. 6 has not fulfilled the mandatory eligibility criteria to participate in the tender process inasmuch as the respondent No. 6 is not a registered/enlisted contractor under the AP Enlistment Rules, 2008, which violates the provisions of Arunachal Pradesh District Based Entrepreneurs and Professional (Incentives, Development and Promotional) Rules, 2015 (hereinafter referred to as the AP Entrepreneurs Rules, 2015 in short). The respondent No. 6 is a Class-II Contractor registered under Assam Public Works Department, Government of Assam, where the maximum bidding capacity for a Class-II Category Contractor is limited to Rs. 100 Lakhs. However, the estimated cost put to tender in the present NIT is Rs. Page No.# 5/25 3,55,15,701.00/- (Rupees three crores fifty five lakhs fifteen thousand seven hundred one) only, which far exceeds the permissible limit. 7. The petitioner further contends that as per Clause 13 of the Special Conditions of the tender, every tenderer is required to furnish a Solvency Certificate issued by a Nationalized Bank for an amount not less than 50% of the tender value. However, in contravention of this mandatory condition, the respondent No. 6 submitted a Solvency Certificate dated 25.04.2025 issued by ICICI Bank Limited, which is not a Nationalized Bank. Therefore, since the respondent No. 6 is neither an enlisted contractor under the AP Enlistment Rules, 2008 nor has complied with the requirements of submitting a Solvency Certificate from a Nationalized Bank as mandated under Clause 13 of the Special Conditions of Tender and the Rules of 2015, the bid of the respondent No. 6 ought to have been rejected by the respondent authorities. 8. Mr. O. Pada, learned counsel for the petitioner, submits that the NIT clearly invited tenders from eligible and registered contractors from APPWD/CPWD/BRO/GREF/APWD of appropriate Class-II category, domiciled within the jurisdiction of concerned Assembly Constituency, which shall be governed by the Entrepreneurs Act, 2020. He submits that Clause 13 of the Special Conditions of Tender clearly provides that every tenderer must produce/submit a Solvency Certificate issued by a Nationalized Bank. However, respondent No. 6, being a Class-II Contractor registered under Assam Public Works Department and not enlisted under the AP Enlistment Rules, 2008, submitted a Solvency Certificate dated 25.04.2025 issued by ICICI Bank Limited, which is not a Nationalized Bank, and as such, the respondent No. 6 has not fulfilled the essential conditions prescribed in the NIT and the Special Conditions of Tender. Therefore, he submits that the issuance of LOI dated 06.06.2025 in Page No.# 6/25 favour of respondent No. 6 is illegal and unsustainable in law, as the respondent No. 6 is not eligible to participate in the tender process and has not fulfilled the mandatory terms of the tender. Hence, he prays that the impugned LOI be set aside and quashed. 9. Mr. O. Pada, learned counsel for the petitioner, submits that since the petitioner has quoted a bid amount of Rs. 3,27,58,958.51 (Rupees three crores twenty seven lakhs fifty eight thousand nine hundred fifty eight and fifty one paise) only, which is -7.76% below the estimated cost put to tender and he being an enlisted eligible contractor having fulfilled all the requirements of the NIT and the Special Conditions of Tender, the respondent authorities may be directed to award the said work for supply of materials under MGNREGA 2025- 26 in respect of CD Block Payeng, Upper Subansiri District in favour of the petitioner. 10. In support of his submissions, Mr. O. Pada, learned counsel for the petitioner, has relied on the judgment of the Division Bench of this Court in D.D.L. Enterprise (M/S) Vs. Sedi Allied Agency (M/S) & Ors., reported in 2020 (5) GLT 258, and the Hon’ble Supreme Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors., reported in (1979) 3 SCC 489. 11. Mr. N. Ratan, learned Additional Advocate General for State respondents, submits that the bid of the respondent No. 6 was accepted as it was found to be the lowest and most responsive. During scrutiny of the Technical Bids on 30.04.2025, both the petitioner and the private respondent were both found responsive. Thereafter, at the time of opening of the Financial Bid on 01.05.2025, it was found that the petitioner quoted bid price of Rs. 3,27,58,958.51/- (Rupees three crores twenty seven lakhs fifty eight thousand Page No.# 7/25 nine hundred fifty eight and fifty one paise) only, while M/s RGM Enterprises (Respondent No. 6) had quoted the amount of Rs. 3,27,58,253.27/- (Rupees three crores twenty seven lakhs fifty eight thousand two hundred fifty three and twenty seven paise) only. He submits that although the rate quoted by the respondent No. 6 was less than the petitioner's bid in the comparative statement, the tendering authority at the District level wrongly declared both the petitioner and the respondent No. 6 as L1 bidders by stating in the evaluation report as well as in the BOQ Summary details dated 01.05.2025 that the petitioner has quoted Rs. 3,27,58,958.51/- (Rupees three crores twenty seven lakhs fifty eight thousand nine hundred fifty eight and fifty one paise) only which is -7.76% than the tender cost, and M/s RGM Enterprises (respondent No. 6) has quoted bid price of Rs. 3,27,58,253.27/- (Rupees three crores twenty seven lakhs fifty eight thousand two hundred fifty three and twenty seven paise) only which is also -7.76% below the tender cost. However, since the justified rate of Payeng Block has been approved @ 7.76% below the BOQ amount vide order dated 21.04.2025, further scrutiny was undertaken in terms of Clause 14 (ii) of the Special Conditions of Tender. Upon such scrutiny by the office of the Joint Director, Rural Development, the respondent No. 6 was declared as L1, while the petitioner was placed as L2. Consequently, the Letter of Intent (LOI) was issued in favour of the respondent No. 6. 12. He submits that since the NIT dated 11.04.2025 has invited bids from APPWD/CPWD/BRO/GREF/APWD Class-II Contractors domiciled within the jurisdiction of the Assembly Constituency, the contention regarding non- adherence to Clause 4(II)(a) of the Entrepreneurs Act, 2020 and the AP Entrepreneurs Rules, 2015 is wholly misconceived and irrelevant. He submits that the Entrepreneurs Act, 2020 and its Rules, 2015 was enacted with the Page No.# 8/25 objective of providing incentives to ensure greater participation of district based entrepreneurs and professionals as a part of the Government’s policy to facilitate decentralization of developmental activities and to promote inclusive growth by encouraging participation from all corners of the State, so as to achieve a society with uniform social and economic status. Thus, the objective of the AP Entrepreneurs Act, 2015 is to give preference to persons domiciled within the relevant Assembly Constituency where the work is to be executed. In the present case, the respondent No. 6 is a Class-II contractor duly registered under APWD and is a domicile of Taliha, District Upper Subansiri, which is the very constituency where the NIT in question has been floated. 13. Mr. Ratan, learned Additional Advocate General, submits that the respondent No. 6 is a registered Class-II contractor under the Assam Public Works Department (APWD). However, he fairly submits that under the APWD norms, the maximum bidding capacity of a Class-II contractor is limited to Rs. 1 Crore. Nonetheless, the said issue was duly examined by the competent departmental authority, which, upon consideration, took the view that what is material is the class of registration and not the financial ceiling prescribed in another State. It was observed that the limit of bidding capacity varies from State to State, and in the State of Arunachal Pradesh, the bidding capacity of a Class-II Contractor extends up to Rs. 5 Crore. Therefore, when the respondent No. 6 participates in a tender process within the State of Arunachal Pradesh, his bidding capacity cannot be restricted to Rs. 1 Crore as per the permissible limit applicable in Assam. 14. He further submits that the NIT dated 11.04.2025, in its various clauses including Clause 9 and Clause 11 of the CPWD Manual, which forms a part of the NIT, clearly permits the submission of Bid Security, Earnest Money Deposit Page No.# 9/25 (EMD), and Performance Security in the form of Demand Draft, Fixed Deposit Receipt, or Bank Guarantee issued by any Scheduled Commercial Bank. As per Rules 170 and 171 of the General Financial Rules (GFR), 2017, which govern all public procurements across India, such financial instruments from any Scheduled Commercial Bank are permissible and valid. The said Rules nowhere restrict such instruments to be issued exclusively by nationalized banks. Therefore, according to the learned Additional Advocate General, the private respondent No. 6, M/s RGM Enterprise, by furnishing the requisite financial instrument from a Scheduled Commercial Bank, has fully complied with the tender conditions and the applicable GFR provisions. Thus, he submits that the interpretation advanced by the petitioner is misleading and factually baseless. In any case, the purpose of requiring Bid Security, Earnest Money, and Performance Security is to ensure the financial capability of the bidder, which has been duly satisfied in the present case. 15. Mr. N. Ratan, learned Additional Advocate General, while distinguishing the decisions relied on by the learned counsel for the petitioner, submits that the case of D.D.L. Enterprise (supra) relates to a tender process that specifically invited bids from contractors registered under Arunachal Pradesh Public Works Department (APPWD) alone and in the present case, the authorities have invited not only from the contractors registered under Arunachal Pradesh Public Works Department, but also from contractors registered under CPWD, BRO, GREF and APWD of appropriate categories of Class-II, provided that they are domiciled within the jurisdiction of the relevant Assembly Constituency. Therefore, the case relied on by the learned counsel for the petitioner in the case of D.D.L. Enterprise (supra) is not applicable in the present case. As regards the reliance placed on the Ramana Dayaram Shetty (supra), the learned Advocate Page No.# 10/25 General submits that same is a settled proposition of law, which cannot be pressed into in the different factual matrix of the present case. 16. Ms. N. Danggen, learned counsel for the respondent No. 6, while endorsing the submissions of learned Addl. Advocate General, submits that the bid of the respondent No. 6 was accepted as it was the lowest and most responsive. She submits that although the rate quoted by the respondent No. 6 was lower than that of the petitioner, the tendering authority at the District level erroneously declared both the petitioner and the respondent No.6 as L1 in the evaluation report, as well as in the BOQ Summary details dated 01.05.2025. This mistake was subsequently rectified upon further scrutiny by the Joint Director, RE, as per Clause 14(ii) of the Special Conditions of Tender. Therefore, the respondent No. 6 has been correctly declared as L1, and the petitioner as L2. Consequently, the tender was awarded in favour of respondent No. 6, and the Letter of Intent (LOI) was issued vide communication dated 06.06.2025. 17. Ms. N. Danggen, learned counsel, submits that the NIT dated 11.04.2025 invited bids from APPWD/CPWD/BRO/ GREF/APWD contractors of Class-II category domiciled within the jurisdiction of the relevant Assembly Constituency. Hence, the question of non-adherence to Clause 4(ii)(a) of the AP Entrepreneurs Act, 2015, does not arise, as the said Act has been enacted primarily to ensure preference to persons domiciled within a particular Assembly Constituency, with the objective of facilitating participation of local entrepreneurs in developmental activities. Therefore, the essential requirement under the Act is that the person or proprietor must be domiciled within the relevant Assembly Constituency. In the instant case, the respondent No. 6 is a Class-II contractor/firm registered under the APWD and is a domicile of Taliha, District Upper Subansiri, which is the area where the present NIT has been floated. Page No.# 11/25 18. Further, Ms. N. Danggen, denies the contention that the bidding capacity limit of Rs. 1 crore prescribed for Class-II contractors in the State of Assam would be applicable to the State of Arunachal Pradesh. She submits that the bidding capacity varies from State to State, and in the State of Arunachal Pradesh, the bidding capacity of a Class-II contractor extends up to Rs. 5 crore. Therefore, when the respondent No. 6 participates in a tender process within the State of Arunachal Pradesh, his bidding capacity cannot be restricted to Rs. 1 crore. She submits that the nature of work under the impugned tender is not of a specialized work like construction etc., but is primarily of a vendor nature, involving only the supply of materials to be utilized by job card holders under the MGNREGA scheme. Therefore, she submits the objection raised by the petitioner on this ground is wholly frivolous and untenable in law. 19. Ms. N. Danggen, learned counsel, submits that as per Clauses 9 and 11 of the CPWD Manual, which forms an integral part of the NIT dated 11.04.2025, the Bid Security, Earnest Money Deposit (EMD), and Performance Security may be furnished in the form of a Demand Draft, Fixed Deposit, or Bank Guarantee issued by any Scheduled Commercial Bank. Rules 170 and 171 of the General Financial Rules (GFR), 2017, which are binding on all public procurements across India, also permit the acceptance of such financial instruments from any Scheduled Commercial Bank. Hence, there exists no rule or restriction confining such submissions exclusively to Nationalized Banks. In any case, the requirement for submission of Bid Security, Earnest Money, and Performance Security is primarily to ensure the financial capability of the bidder, and therefore, there is no legal impediment to the respondent No. 6 for using financial instruments issued by a Scheduled Commercial Bank. 20. She submits that the petitioner firm is already engaged in 3 (three) Page No.# 12/25 separate works at the relevant point of time, namely, (i) Infrastructural Development of GHSS Kodak (Upper Subansiri District) under SASCI 2024-25 under the RWD Department, (ii) Construction of CC Drain and CC Pavement Road from BRTF Road to Tikrinka HQ under Jaring Circle, Upper Subansiri District under the PWD Department, and (iii) Construction of Road from Taliha- Tato Road to Payeng Circle HQ, Upper Subansiri District under the PWD Department. The said fact was already in knowledge of the respondent No. 6 as the respondent No. 6 had also participated in the tender process for the aforesaid works but was unsuccessful, having lost out to the petitioner firm. Therefore, she submits that as per Rule 4(ii)(e) of the Act of 2015, a firm already engaged in more than two works is not eligible to be awarded any further tender. The petitioner, however, concealed this material fact and filed a false affidavit declaring that it was not engaged in more than two works, which itself is illegal. Consequently, vide Order dated 05.06.2025, appropriate action was taken, and the tender was awarded in favour of the respondent No. 6 and the Letter of Intent (LOI) was thereafter issued. 21. In support of her submissions, Ms. Danggen, learned counsel, has relied on following judgments of the Hon’ble Supreme Court: (i) Central Coalfields Limited & Anr. Vs. SLL-SML (Joint Venture Consortium) & Ors., reported in (2016) 8 SCC 622, (ii) Tata Motors Limited Vs. The Brihan Mumbai Electric Supply & Transport Undertaking (Best) & Ors., reported in 2023 0 Supreme(SC) 547, and (iii) Galaxy Transport Agencies, Contractors, Traders, Transports and Suppliers Vs. New J.K. Roadways, Fleet Owners and Page No.# 13/25 Transport Contractors & Ors., reported in (2021) 16 SCC 808. 22. Due consideration has been extended to the submissions of the learned counsel for the parties and also perused the materials available on record. 23. Pursuant to an NIT dated 11.04.2025, issued by the Joint Director (RE), Department of Rural Development, Government of Arunachal Pradesh, inviting supply item rate tender from eligible and registered contractors from APPWD/CPWD/BRO/GREF/ APWD of appropriate categories of Class-II, domiciled within the jurisdiction of Assembly Constituency, which shall be governed by the Arunachal Pradesh Entrepreneurs (Amended) Act, 2020 for supply of materials under MGNREGA 2025-26 in respect of Package-IX, CD Block Payeng in the District of Upper Subansiri, 3 (three) firms, namely, M/s T. R. Enterprises, the petitioner herein, M/s RGM Enterprise, the respondent No. 6 herein and one M/s LY Enterprise have participated in the tender process. After the technical evaluation, the bids of the petitioner and the respondent No. 6, having been found eligible for financial bid, were recommended for evaluation of the financial bid. The bid of M/s LY Enterprise was rejected on being found not responsive in the technical evaluation. 24. The petitioner is found to have quoted an amount of Rs. Rs. 3,27,58,958.51/- (Rupees three crores twenty seven lakhs fifty eight thousand nine hundred fifty eight and fifty one paise) only and the respondent No. 6 quoted an amount of Rs. 3,27,58,253.27/- (Rupees three crores twenty seven lakhs fifty eight thousand two hundred fifty three and twenty seven paise) only. Although the Financial Evaluation Bid Committee in the District level has found that both the petitioner and the respondent No. 6 equally quoted -7.76% below the estimated cost put to tender, bare perusal of the bid quoted by the Page No.# 14/25 petitioner and respondent No. 6, reflects that the respondent No. 6 has quoted less than the bid quoted by the petitioner, which admittedly the respondent 6 would be L1 and of course, the same was rectified subsequently by the appropriate authority in terms of the tender. 25. The respondent authorities vide an order dated 05.06.2025, after scrutinizing of the tender documents, headed by the Joint Director (RE), Rural Development Department, as per Section 20 (20.4.3.1) of the CPWD Work Manual, 2014, has stated that the petitioner has already 3 (three) works in hand and enclosed acceptance letters issued by the Executive Engineer, PWD and RWD Division, Daporijo. Perusal of the above, indicates that as per the AP Entrepreneurs Act, 2015, amended in 2020, and the Rules framed thereunder, a bidder should be allowed to have 2 (two) works in hand in any department at the time of submission of the bid. Records reveals that the petitioner has already 3 (three) works in hand at the time when the bid was submitted which is also not denied by the petitioner. 26. The primary thrust of the argument and the grounds projected by the petitioner are that the respondent No. 6 has not fulfilled the mandatory eligibility criteria and not complied with the terms of the tender to participate in the tender process as the respondent No. 6 is not a registered/enlisted contractor under the AP Enlistment Rules, 2008, which violates the provision of the AP Entrepreneurs Act, 2015. The respondent No. 6 is a Class-II Contractor registered under the Assam Public Works Department, Government of Assam, where the maximum bid capacity for Class-II category Contractor is limited to Rs. 100 Lakhs and the estimated cost put to tender in the present case is Rs. 3,55,15,701.00/- (Rupees three crores fifty five lakhs fifteen thousand seven hundred one) only. Further, the respondent No. 6 has not submitted the Page No.# 15/25 Solvency Certificate issued by a Nationalized Bank for an amount not less than 50% of the tender value as Clause 13 of the Special Conditions of Tender requires that the tenderer must furnish a Solvency Certificate from a Nationalized Bank, whereas the respondent No. 6 has submitted the Solvency Certificate from ICICI Bank Ltd, which is not a Nationalized Bank. The NIT required that the tender process shall be govern by the Entrepreneurs Act, 2020, which provides, inter-alia, that the contractor must be duly registered under the AP Enlistment Rules, 2008 in the appropriate class of category and the registration must be valid on the date of participation of the tender and a copy of which must be submitted to the tendering authority. Since, the respondent No. 6 has not been enlisted under the said Rules, 2008, he is not eligible to participate in the tender process. 27. For better appreciation, it would be apposite to extract the contents of the NIT dated 11.04.2025, Clause 13 of Special Condition of Tender and the relevant provisions of Rule 4(ii)(a) & (e) of the AP Entrepreneurs Rules, 2015, which are as follows:- Contents of the NIT dated 11.04.2025 “The Project Director RD, Upper Subansiri District AP, on behalf of Governor of Arunachal Pradesh invites Supply item Rate Tender from eligible and registered APPWD/CPWD/BRO/GREF/APWD on appropriate categories of class II, domiciled within the jurisdiction of Assembly Constituency shall be governed by Arunachal Pradesh District based Entrepreneurs and Professionals (Incentives. Development and Promotional) (Amendment) (Act No. 7 of 2020).” Clause 13 of Special Condition of Tender “13. The Tenderer must produce the following documents and furnish the original copy of documents. while submitting tender papers and during opening of tender. ……….. Page No.# 16/25 IX. Solvency Certificate from any nationalized bank not less than 50% of Tender amount.” Rule 4(ii)(a) & (e) of Arunachal Pradesh District Based Entrepreneurs Rules, 2015 “4. Above 3.00 crore and upto 5.00 crore- All registered contractors in Class II categories domiciled within the territorial jurisdiction of Assembly Constituency. (ii) The Contractors/Entrepreneurs before participating in the tenders must satisfy the following conditions: (a). The District Based Entrepreneurs and Professionals must be duly registered under the Arunachal Pradesh contractors Enlistment Rules, 2008 in the appropriate class of category and that the Registration is must be valid on the date of participation of tender, a copy of which must be in the appropriate class of category and that the submitted to the tendering authority. …………… (e) In the larger interest of the public and for equitable distribution of developmental works amongst eligible contractors and also to ensure effective management and quality of works, a' contractor shall be allowed to have only 2 (two) works in hand in any of departments under Government of Arunachal Pradesh at a time and for which he shall make a declaration to be executed in an Affidavit that he is not engaged in more than two any tenders works under the State Government. He shall also, for participation in any tender be required to submit completion certificate issued by the Engineer-in charge, duly counter signed by the concerned Superintending Engineer and Chief Engineer.” 28. Bare reading of the NIT shows that the authorities have invited supply item rates from eligible and registered contractors from APPWD/CPWD/BRO/ GREF/APWD of appropriate categories of Class-II, domiciled within the jurisdiction of Assembly Constituency, which shall be governed by the Arunachal Pradesh Entrepreneurs (Amended) Act, 2020. Clause 13 of the Special Conditions of Tender clearly reflects that the tenderer must produce and furnish Page No.# 17/25 the original copy of the documents, inter alia, Solvency Certificate from any Nationalized Bank not less than 50% of tender value while submitting tender papers and during the opening of tender. The provisions of Arunachal Pradesh District Based Entrepreneurs Rules, 2015 shows that the contractors must be registered under the AP Enlistment Rules, 2008 in an appropriate class of category and registration must be valid on the date of participation of the tender, for which a copy must be submitted to the tendering authority. It also provides that a contractor shall be allowed to have only 2 (two) works in hand in any of the departments under Government of Arunachal Pradesh at a time and for which he shall make a declaration to be executed in an Affidavit that he is not engaged in more than two tender works under the State Government. Thus, there is no gainsaying that the provisions of the Arunachal Pradesh Entrepreneurs Act, 2015 (as amended in 2020) and the Rules framed thereunder, would apply in the present tender. 29. The respondent No. 6 admittedly is not enlisted contractor under the AP Enlistment Rules, 2008 as the respondent No. 6 is a registered Class-II Contractor under the Assam Public Works Department, Government of Assam and domicile of the Assembly Constituency of Taliha, Upper Subansiri District. Therefore, ordinarily, the respondent No. 6 cannot be said to be eligible to participate in the present tender for the reason that the bidders are required to be registered under the AP Enlistment Rules, 2008 in an appropriate class of category and registration must be valid on the date of participation of the tender, for which a copy must be submitted to the tendering authority. 30. It is also an admitted position that the respondent No. 6 has submitted the Solvency Certificate from ICICI Bank Limited, which is not a Nationalized Bank whereas the requirement is that the Solvency Certificate should be from the Page No.# 18/25 Nationalized Bank not less than 50% of the tender value. Thus, non-submission of Solvency Certificate from a Nationalized Bank may amount to non-fulfilment of the Clause 13 (ix) of the Special Condition of Tender. However, since the respondent No. 6 has submitted the Solvency Certificate and Bank Certificate clearly showing the financial health of the respondent No. 6, although not from Nationalized Bank, same may be a non-essential condition of tender, which the respondent authorities, perhaps, would have the power to accept the same as the deviation may be permissible for a non-essential condition. 31. Non-enlistment of respondent No. 6 under the AP Enlistment Rules, 2008, ordinarily, would amounts to non-fulfilment of the requirement of the NIT. In the present case the NIT clearly stipulates that the registered contractors of Class-II category shall be govern by the Entrepreneurs Act, 2020. The rules framed thereunder provides that the contractors must be registered under the Arunachal Pradesh Enlistment of Contractors Rules, 2008 in an appropriate class of category and registration must be valid on the date of participation of the tender. However, the respondent No. 6 being registered contractor of Assam Public Works Department, it may not be mandatory to register and enlisted under the Arunachal Pradesh Enlistment of Contractors Rules, 2008. The respondent No. 6 is a domicile within the Assembly Constituency of Taliha in which Payeng CD Block falls. Thus, not registering/enlisting by the respondent under the Arunachal Pradesh Enlistment of Contractors Rules, 2008, may not be a ground to reject the tender of the respondent No. 6 being ineligible in view of the fact that the respondents have invited the supply item rates from the eligible contractors of class-II category from Assam PWD, BRO/GREF and CPWD apart from Arunachal Pradesh PWD. 32. Regard being had to the bidding capacity of the respondent No. 6, no Page No.# 19/25 doubt, the respondent No. 6, being the Class-II category contractor, the bidding capacity is limited to Rs. 100 Lakhs in the State of Assam. However, the requirements as provided under the Acts and Rules in the State of Arunachal Pradesh is that a bidder must be domicile of the concerned Assembly Constituency and the Class-II category contractor, can bid up to Rs. 5 Crores, and since, the respondent No. 6 is a Class-II category contractor, although registered under Assam PWD, he would have a bidding capacity in the present tender. 33. Having considered above, although ordinarily, the respondent No. 6 may appear to be not fulfilled certain requirements in the present tender process, such requirements having been found by the tendering authority to be non- essential conditions and ancillary, it would not be appropriate to conclude that the respondent No. 6 is not eligible and qualified to participate in the present tender process. 34. Coming to the petitioner, the petitioner, admittedly, quoted higher bid amount than the respondent No. 6, i.e. the petitioner quoted Rs. 3,27,58,958.51 (Rupees three crores twenty seven lakhs fifty eight thousand nine hundred fifty eight and fifty one paise) only, while the respondent No. 6 quoted bid amount of Rs. 3,27,58,253.27 (Rupees three crores twenty seven lakhs fifty eight thousand two hundred fifty three and twenty seven paise) only. Therefore, the petitioner could not be considered as L1, rather it is the respondent No. 6 who is L1. The petitioner admittedly has 3 (three) works in hand at the time when the bid was scrutinized by the authority, which would made the petitioner not entitled for award of the work as Rule 4(ii)(e) provides that tenderer must not have more than 2 (two) works in hand in any of the departments under Government of Arunachal Pradesh at a time. Thus, obviously, the petitioner would not be Page No.# 20/25 entitled to be awarded the work. 35. In tender matters, the Hon’ble Supreme Court in catena of cases, has time and again, observed that Court should exercise restraint and caution, and the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities. The courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable. The court does not sit like a court of appeal over the appropriate authority, the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. 36. It has also held that the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. 37. In Ramana Dayaram Shetty (supra) it is held that the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. Equally, in Tata Cellular Vs. Union of India, reported in (1994) 6 SCC 651, it has been held that there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or Page No.# 21/25 intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached”. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 38. A Division Bench of this Court in D.D.L. Enterprise (M/S) (supra) noticing that when the writ petition was filed questioning the eligibility of the parties/private respondents therein, they did not take the plea that they were eligible but took the plea that they were the most qualified, technically and financially. They claimed to be eligible as per the corrigendum issued and the NIT did not specifically mention that the contractors have to be registered under the 2008 Enlistment Rules, it has been observed that such a plea is not tenable for the reason that even if the NIT does not specifically mention as to the requirements of registration under the 2008 Enlistment Rules, it has to be read into it in as much as there could not be any tender issued in violation and contravention of the 2015 Rules and the statute i.e. 2015 Act governing the field. The fact that the appellant is not registered as a contractor under Arunachal Pradesh Contractors Enlistment Rules, 2008 being not disputed and also having admitted that he is registered with the Public Works Department of Govt. of Assam, which is not in consonance with the 2015 Rules. Obviously, Page No.# 22/25 even if the aforesaid requirement of enlistment under the Arunachal Pradesh Contractors Enlistment Rules, 2008 is not specifically mentioned in the tender, same will not confer any benefit to the bidder as regards eligibility. If the bidder is not eligible under the 2015 Rules, he is not entitled to participate in the tender process. Perusal of the case shows that same was observed on a context in which tender was issued from the eligible contractors of Arunachal Pradesh PWD and not from other contractors, which in my view would not apply in the contextual facts of the present case. It is true that even if the NIT does not specifically mention as to the requirements of registration under the 2008 Enlistment Rules, it has to be read into it in as much as there could not be any tender issued in violation and contravention Acts and Rules. 39. In Central Coalfields Limited (Supra), it has been held, which is reproduced herein below: ”48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 49. Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that “Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive.” Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL the GTC has been impermissibly re-written by the High Court. 40. In Galaxy Transport Agencies, Contractors, Traders, Transports Page No.# 23/25 and Suppliers, (Supra), it has been held that in a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second-guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., 2016 (16) SCC 818, this Court held: “15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” It has been held that in Silppi Constructions Contractors v. Union of India, reported 2019 SCC OnLine SC 1133, this Court held as follows: “20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” (emphasis supplied) 41. In Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC 517, it has been held as under:- “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 Page No.# 24/25 “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: (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”; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 42. Reverting back to the present case, although the respondent No. 6, ordinarily, appears to have not fulfilled certain requirements, such as submission of Solvency Certificate not from Nationalised Bank but from scheduled commercial Bank like ICICI Bank Limited, same having been considered as not an essential condition of tender by the tendering authority, due deference has to be given. The non-enlistment/registration under the Arunachal Pradesh Page No.# 25/25 Enlistment of Contractors Rules, 2008 by the respondent No. 6 also having been interpreted by the respondent authorities to the effect that in view of the fact that the respondents have invited the supply item rates from the eligible contractors of Class-II category from Assam PWD, BRO/GREF and CPWD apart from Arunachal Pradesh PWD, no registration is required under the said Rules, 2008 as the respondent No. 6 is a registered class-II contractor under the Assam PWD, the decision which equally have be respected. Thus, not registering/enlisting by the respondent No. 6 under the Arunachal Pradesh Enlistment of Contractors Rules, 2008, may not be a ground to reject the tender of the respondent No. 6 being ineligible in the facts of the present case. 43. The petitioner, admittedly, having quoted the bid amount higher than the respondent No. 6 and having 3(three) works in hand under Government of Arunachal Pradesh which violates Rule 4(ii)(e), the decision making process of the respondent authorities appears to be in accordance with the terms of the tender and the relevant principle of law laid down by the Courts. 44. In view of what has been discussed herein above and the reasons thereof, this Court is of the considered view that there is no infirmity in the decision making process and issuance of Letter of Intent dated 06.06.2025 to the respondent No. 6. Thus, I find no merit in the present writ petition. 45. Accordingly, writ petition stands dismissed. Cost(s) made easy. JUDGE Comparing Assistant