Page No.# 1/7 GAHC010241622025 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : I.A.(Civil)/3462/2025 SPS CONSTRUCTION INDIA PRIVATE LIMITED THROUGH ITS AUTHORIZED REPRESENTATIVE MR. MADHAV SINGLA, AGE 30 YEARS. HAVING REGISTERED OFFICE AT 1006-1007, 10TH FLOOR, PEARIS BEST HEIGHT-1, PITAMPURA, NEW DELHI-110034 VERSUS UNION OF INDIA AND ANR THROUGH MINISTRY OF RAILWAYS HAVING ITS OFFICE AT 256 A, RAISINA ROAD, RAJPATH AREA CENTRAL SECRETARIAT, NEW DELHI- 110001 2:NORTHEAST FRONTIER RAILWAY THROUGH CHIEF ENGINEER HAVING ITS OFFICE AT CONSTRUCTION OFFICE MALIGAON GUWAHATI BEFORE HON’BLE MR. JUSTICE RAJESH MAZUMDAR Advocate for the petitioner(s) : Mr K. N. Choudhury, Sr. Adv. Mr V. Puhuja. Advocate for the respondent(s): Mr K. Gogoi, R-1 and R-2 Date of Order : 31.10.2025 Page No.# 2/7 ORDER (Rajesh Mazumdar, J.) 1. Heard Mr. K. N Choudhury, Learned Senior Advocate assisted by assisted by Mr. A. Wadhwa, Mr. A. Mittal and Mr. V. Pahuja, learned counsel for the petitioner. Mr. K. Gogoi, learned Standing Counsel, representing the respondent Railways authorities has appeared on advance notice. Since all the parties are represented, urgency has been expressed and Mr. K Gogoi has submitted that he is prepared to argue the matter, the interlocutory application has been taken up for consideration with the consent of the parties. 2. This interlocutory application has been filed by the writ petitioner during the pendency of WP(C) No. 5051 of 2025, which we are informed is directed to be listed again on 12th of November, 2025. 3. By order dated 01.09.2025, passed in WP(C) 5051 of 2025, this Court had directed that the respondents shall consider the bids of the petitioner, subject to further order of the Court. By the same order, it was reflected that the respondents were permitted to file their affidavits so that an attempt could be made to dispose of the matter on the next date. The next date being fixed as 08.09.2025, the learned counsel appearing for the respondents had submitted that the scrutiny of the bids would take considerable time and therefore, he may be permitted to file a detailed affidavit-in-opposition. Accordingly, the matter was directed to be listed on 17.10.2025. On 17.10.2025, the respondents were directed to file the affidavit by 03.11.2025, and the matter was required to be listed again on 12.11.2025. Due to subsequent events, this interlocutory application has been filed before the fixed date of hearing. 4. During the pendency of the writ petition, the respondents have completed the scrutinization of the technical bid and by a noting published on 28.10.2025 in the official website, the technical bid of the petitioner had been rejected being non-responsive as per Page No.# 3/7 Clause 2.2.2.2 and Clause 2.2.2.4 (iii) (ii) (2) of RFP. 5. Mr. K. N. Choudhury, learned Senior Counsel, assisted by Mr. V. Puhuja, has submitted that the opening of the bids by the respondent authorities and consequential declaration of the petitioner’s bid as non-responsive was in contravention of the order dated 01.09.2025, passed by this Court in the writ petition. It has been submitted that by not considering the bid of the petitioner for the tender, the respondents have contravened the specific directions, by not allowing the petitioner to be considered for evaluation of the financial bid. The learned Senior Counsel has further submitted that since Clause 2.2.2.4.iii.ii.2 of RFP is itself under challenge in the writ petition, it was not open for the respondents to have rejected the bid of the petitioner by referring to the said clause. By referring to the rejection under Clause 2.2.2.2, the learned Senior Counsel submits that it is a misconceived attempt by the respondents to grant legitimacy to its otherwise pre- meditated decision to prevent the petitioner from participating in the tender. The learned Senior Counsel has also raised contentions against the two entities, who have been held to be eligible. The learned Senior Counsel has submitted, without disclosing the figures to maintain secrecy, that the bid of the petitioner is substantially below the bids offered by the bidders found to be eligible. The learned Senior Counsel has further submitted that the applicant/writ petitioner has a strong prima facie case in his favour, that the respondents would not suffer any prejudice in case the relief prayed for in the application is granted and further allowing the respondents to create third party rights at this juncture, by allowing them to proceed with the tender would cause irreparable loss and injury to the petitioner which cannot be compensated in terms of money. He has, therefore, prayed that the respondents be restrained from proceeding further with the tender process, including issuance of letter of award, signing of contracts or executing any document in favour of the third parties, stay the operation of the result of the evaluation of bids as released by the respondents and also to restrain the respondents from taking any steps which would create any third party rights or interests in the tender. Page No.# 4/7 6. Mr. K. Gogoi, learned CGC and Standing Counsel, Railway, appearing for the respondent Nos. 1 and 2, has vehemently opposed the prayers made in the application. Mr. Gogoi has submitted that the cause of the petitioner already stands protected by way of the interim orders passed on 01.09.2025, since the rejection of the bid of the petitioner would be subject to the outcome of the writ petition. He has submitted that the prayers made in the present application, if allowed, would stall the entire process initiated by the respondents and prayers for such restraints would not be tenable in view of the settled position of law. 7. Mr. Gogoi has drawn the attention of this Court to the orders passed by the Apex Court in the case of A.P. SRTC & Others -vs- G. Srinivas Reddy & Others; reported in (2006) 3 SCC 674, wherein it was held that when the Court without recording any findings or without expressing any views, merely directs the authority to consider the matter, the authority is required to consider the matter in accordance with law with reference to the facts and circumstances of the case, and such power to consider will not be circumscribed by any observation or finding of the Court. 8. 8. He has, thereafter, referred the case of Bharat Coking Coal Limited & Others -Vs- AMR Dev Prabha & Others; reported in (2020) 16 SCC 759, to impress upon the Court that in tender matters, an approach to the writ Court can be made when a party seeks to hold the state to its duty of treating all persons equally or prohibit it from acting arbitrarily or when executive actions or legislative instruments are challenged. He has submitted that even minor deviations from the terms of the NIT would not be sufficient by itself, in the absence of malafide for Courts to set aside a tender at the behest of an unsuccessful bidder. 9. He has also referred to the Judgment of the Apex Court rendered in the case of Jagdish Mandal –Vs- State of Orissa & Others; reported in (2007) 14 SCC 517, to impress that in exercising judicial review in matters relating to tenders or award of contracts, principles of equity and natural justice stay at a distance. He has submitted Page No.# 5/7 that the power of judicial review is not required to be exercised to protect private interest at the cost of public interest or to decide contractual disputes, since the contractor or tenderer with a grievance can always seek damages in a civil Court. He has submitted that before exercise of powers, a Court has to pose itself the question as to (i) whether the process adopted or decision made by the authority is malafide or intended to favour someone or whether it is arbitrary and irrational and (ii) whether public interest is affected. He has also relied upon a decision rendered by the Apex Court in the case of N G Projects Limited –Vs- Vinod Kumar Jain & Others; reported in (2022) 6 SCC 127, to submit that in cases of infrastructure project, a writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of the tenderer. He has also relied upon the order dated 11.08.2025, passed in WP(C) No. 4543 of 2025, to impress that it would not be in the interest of justice to interfere as an interim measure, unless a strong case is made out to stay the tendering process, which would lead to delay in completing a project of national importance. He has accordingly prayed that the prayers made in the instant writ petition do not require further consideration of this Court. 10. Mr. Choudhury, learned senior advocate, has, in reply to the submissions made by Mr. Gogoi, learned counsel, has placed reliance on the case of Banshidhar Construction Pvt. Limited vs Bharat Coking Coal Limited and others, reported as 2024 INSC 757 to emphasize that in appropriate cases, such as the present one, the Courts would be required to pass orders protecting the interests of parties before it even if infrastructure projects of national importance were involved. He has further submitted that since it has been asserted that the bid offered by the petitioner is substantially lower than the bidder who has been announced to be the L1 bidder, public interest would be better served in the event the respondents are restrained from proceeding further with the tender process awaiting adjudication of the writ petition. 11. The submissions made on behalf of the contesting parties have received Page No.# 6/7 consideration of this Court. The facts as emerging therefrom are that the petitioner had approached this Court by preferring the writ petition assailing the inclusion of a condition in the NIT which the petitioner contended to be arbitrary. After considering the arguments placed before the Court, the respondents were not restrained from proceeding with the tender, rather they were required to consider the bid offered by the petitioner also, subject to further orders that may be passed by the Court. The respondents have admittedly considered the bid of the petitioner and have found the bid non-responsive on two counts, the first related to the issue of non-furnishing of the undertaking, which is pending adjudication in the writ petition and the other reason is wholly unconnected to the issue in the writ petition. 12. This Court cannot agree to the submission made today that the respondents acted in contravention of the order dated 01.09.2025 passed in the writ petition since they did not consider the case of the petitioner; on the contrary, it appears that the bid of the petitioner has been considered but found unresponsive on two grounds. The question of legality of one of the grounds is sub-judice before this Court. The other ground is not an issue before this Court, at least not in this round of litigation. The result of the consideration is already made subject to further orders of this Court. The writ petition is fixed on 12.11.2025. True it is, mentioned in the course of arguments, that heavens would not fall if the respondents are restrained for the time being, it is equally true that in the event the writ petition fails, a infrastructure project of national importance would suffer setback when the execution of the project would be delayed. Moreover, in the event the respondents proceed with the tender process now to create third party rights and later the writ petition succeeds, it will be upon the respondents to deal with the consequences and perils of such success of the petitioner. 13. As things stand today, according to the materials available on record, the technical bid of the petitioner suffered not only on the ground apprehended in the writ petition but also on another ground, which is not a subject matter of the present lis. Page No.# 7/7 14. The case law relied upon on behalf of the petitioner i.e. Banshidhar Construction Pvt. Limited (Supra) dealt with a situation where the entire process has been interfered with. There is no doubt that appropriate directions would follow even in this litigation during final adjudication of the writ. 15. In view of all the above, this Court does not deem it appropriate to agree to impose restraints on the respondents as prayed for in the interlocutory application. It is however clarified that since this Court by order dated 1.9.2025 has already observed that the consideration of the bid of the petitioner would be subject to further orders to be passed by this Court, the finding of the respondents that the bid of the petitioner is non- responsive would also be subject to further orders that may be passed in the writ petition. 16. Interlocutory application is accordingly disposed of. The observations made in this order are limited to the adjudication of the interlocutory application only and would not have affect on the final adjudication of the writ petition. JUDGE Comparing Assistant