Page No.# 1/15 GAHC040011992025 2025:GAU-AP:1173 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/326/2025 M/s Badri Rai and Company represented by its Managing Partner and PoA Holder Shri Arun Kumar Rai and through its duly authorized representative Shri Kali Yomcha, resident of Village Yomcha, PO Yomcha, PS Yomcha, West Siang District, Arunachal Pradesh. VERSUS The State of AP and 5 Ors represented by the Commissioner, PWD, Govt of Arunachal Pradesh, Itanagar. 2:The Chief Engineer (Western Zone) Age: 0 Occupation : PWD Govt of Arunachal Pradesh Pasighat East Siang District Arunachal Pradesh. 3:The Superintending Engineer Age: 0 Occupation : Aalo Civil Circle PWD West Siang District Arunachal Pradesh. 4:The Executive Engineer Age: 0 Occupation : PWD Yomcha Division West Siang District Page No.# 2/15 Arunachal Pradesh. 5:Doge Nyigyor Age: 0 Occupation : presently serving as Executive Engineer PWD Yomcha Division West Siang District Arunachal Pradesh. 6:Mebom Ete Age: 0 Occupation : presently serving as Assistant Engineer PWD Yomcha Division West Siang District Arunachal Pradesh Advocate for the Petitioner : Marto Kato, Liya Keche,Tony Meto,Kamin Teri,Yasmin Gao,Mepe Ete,Nyali Sora,Jumge Karbak Advocate for the Respondent : GA (AP), Tenzin Tsowang,Omor Panggam,Chatung Tajo,Tokge Darin,Doge Lona,Marge Doji,Daina Tamuk,Dicky Panging :::BEFORE::: HON’BLE MR. JUSTICE KARDAK ETE JUDGMENT 24.10.2025 Heard Mr. M. Kato, learned counsel for the petitioner. Also heard Mr. R. H. Nabam, learned Additional Advocate General for the State respondent Nos. 1 to 4 and Mr. D. Panging, learned counsel for the private respondent Nos. 5 & 6. 2. By filing this writ petition, the petitioner has put to challenge the tender Page No.# 3/15 process initiated vide Notice Inviting e-Tender (NIeT) dated 30.06.2025, issued by the Executive Engineer, PWD Yomcha Division, for the work “Upgradation of Yomcha Additional Deputy Commissioner HQ to Liromoba EAC HQ road under (CMCSRDP-II)” on the ground that the time specified for obtaining bid documents, processing fee and submission of Earnest Money Deposit (EMD) was too short and the absence of Executive Engineer on the date specified for processing fees and submission of EMD debarred the petitioner from participating in the tender process. 3. The case projected, in brief, is that the petitioner is a registered Class-1(A) contractor under the Assam Public Works (Building) Department, Government of Assam, having the contractor registration No. RF/DIB/163/B/35 of 2012-2013 represented by its Managing Partner and Power of Attorney holder Shri Arun Kumar Rai and through its duly authorized representative, Shri Kali Yomcha. A Notice Inviting e-Tender (‘NIeT’ in short) vide No. YCAD/CMCSRDP-II/WS- 31/2025-26/647, dated 30.06.2025, was issued by the Executive Engineer, Yomcha Division, PWD, Arunachal Pradesh, inviting online item rate e-tendering in Double bid system from registered and eligible contractor in Class-1/1A/1AA (B&R) Category in APPWD and other state PWD, CPWD, MES, BRO & Railway for an estimated cost of Rs. 2970.00 Lakh. 4. As per the NIeT, the period of availability of online bid/date and time of online bid submission and date and time of opening of the bids are – for availability of tenders online from bidders from 30.06.2025 (1630 Hrs) to 14.07.2025 (1600 Hrs). Start and end date and time for online submission of bids are from 01.07.2025 (1000 Hrs) to 14.07.2025 (1600 Hrs) and date and time of opening bid is 15.07.2025 (1030 Hrs). The bids can be deposited before Page No.# 4/15 the time specified by paying the cost of bid documents (non-refundable) in cash of Rs. 10,000/- (Rupees ten thousand) only along with the EMD and other original documents to the Executive Engineer, Yomcha Division, PWD, Arunachal Pradesh from 30.06.2025 to 05.07.2025 during office hours. Before submission of online bids, the bidders must ensure that the scanned copy of all the necessary documents have been attached with the bids. The details of the cost of documents and the Bid Security specified in the tender document should be same as submitted online (Scanned copies), otherwise will be summarily rejected. The department does not take any responsibility for delay caused due to non-availability or slow internet connection or network, traffic jam etc for online bids. 5. It is the contention of the petitioner that although the period of availability of bidding documents was scheduled from 30.06.2025 to 14.07.2025, an additional and unreasonable condition was incorporated in the tender notice requiring physical submission of the original Earnest Money Deposit (EMD), tender processing fee and other original tender related documents to the office of the Executive Engineer, Yomcha Division, strictly within a short window between 30.06.2025 to 05.07.2025. The said requirement, given the geographical and logistical limitations of the location, rendered the submission of such documents highly impractical and exclusionary and thereby adversely affects fair participation in bidding process. 6. The Executive Engineer issued an office order dated 30.06.2025 authorized several subordinate officials under his division to receive the physical submission of original tender documents including the Earnest Money Deposit (EMD), tender processing fee and other requisite documents from the intending Page No.# 5/15 bidders within the stipulated period. This said endorsement was purportedly made to facilitate smooth and timely receipt of documents as per the terms of the NIeT. 7. It is contended that since the last date for submission of the original documents, processing fees and EMD was 05.07.2025, the petitioner has visited the office of the Executive Engineer, Yomcha Division from 02.07.2025 to 05.07.2026 with a valid bank draft of Rs. 10,000/- as processing fee. However, the subordinate officials, despite being endorsed to receive the documents, unofficially acknowledge the tender documents and kept in the office room without initiating the official procedure, citing strict verbal instructions from the Executive Engineer not to act, as a result of which the processing fee could not be received. It is alleged that the Executive Engineer remained unavailable during this crucial period due to which the petitioner was arbitrarily denied a fair opportunity to participate in the tender process. The petitioner submitted a series of representation before the concerned authorities requesting immediate intervention for modification or cancellation of the tender process. However, the representation remain unresponded. 8. It is contended that despite repeated personal approaches and verbal request, the authorized subordinate officers of the department expressed their helplessness and by an official recording in writing that they were unable to initiate the process of receiving the documents and processing fees by clearly stating that same was not possible due to the continuous non-availability of the Executive Engineer, who is the competent authority to accept and process such documents. The officers further clarified that ever since the initiation of the tender process, the Executive Engineer had remained absent from duty thereby Page No.# 6/15 causing procedural hindrance resulting in denial of opportunity to eligible intending bidders like the petitioner. 9. Ultimately, the Superintendent Engineer, Aalo Circle, PWD, Arunachal Pradesh has issued a corrigendum dated 04.07.2025 whereby extended the last date for submission of original documents and processing fees to 10.07.2025 in response to the representations of the petitioner. 10. It is the case of the petitioner that after the said corrigendum, the petitioner again visited the office of the Executive Engineer to submit the documents and processing fee. However, the Executive Engineer was still not available in his official chamber. Owing to continuous absence and inaction of the Executive Engineer, despite repeated approaches and official correspondences, the petitioner was compelled to lodge an F.I.R. against the said Executive Engineer. Accordingly, the Officer-In-Charge, Police Station Yomcha, issued a Summon to the Executive Engineer directing the Executive Engineer to appear. Apprehending manipulation of the tender documents, the petitioner has also requested the authorities to keep the tender documents under the safe custody. Accordingly, the Additional Deputy Commissioner, Yomcha issued an order directing the Superintending Engineer, PWD Aalo and the Superintendent of Police, West Siang District, to ensure that the tender documents be transported under police escort and was safely kept in the office of the Superintending Engineer. 11. It is contended that despite the above, the Executive Engineer remains missing throughout the extended period and caused the deadline to lapse Page No.# 7/15 without allowing the petitioner to participate in the tender process, for which the petitioner has sought for a departmental enquiry against the Executive Engineer for gross misconduct and procedural lapses and to review of the tender process to ensure transparency and prevent future misuse of administrative power. Despite above, it is contended that the Executive Engineer has issued an order dated 14.07.2025 constituting a board for opening of the tender scheduled on 15.07.2025 at 10.30 a.m. at the office of the Superintending Engineer. It is contended that the petitioner has already submitted the complete set of tender documents fulfilling all the required terms and conditions before the office of the Executive Engineer. However, due to inaction and non-initiation on the part of the Executive Engineer in formally accepting the tender documents, the petitioner has been prevented from uploading or resubmitting the bid online, thereby depriving him from participation in the tender process. 12. Mr. Kato, learned counsel for the petitioner, submits that although the tender process was conducted through online bidding, the uploading of the necessary tender documents on the departmental portal was only possible upon issuance of the receipt of the processing fee by the office of the Executive Engineer. However, the Executive Engineer, who was duty bound to facilitate the same, deliberately remained absent from the office during the relevant period thereby intentionally avoiding issuance of the said receipt. As a result, the petitioner was denied an opportunity to participate in the bidding process, despite being otherwise eligible and willing. He submits that the petitioner came to learned that during the period 30.06.2025 to 05.07.2025, while the tender process was on, two bidders had already submitted their bids and were officially accepted by the authority, which is done in complete disregard to the Page No.# 8/15 transparency and fairness. The petitioner, despite being fully qualified and ready to participate, was deliberately deprived. Therefore, the entire tender process is vitiated and as such, Mr. Kato, learned counsel, essentially prayed for setting aside of impugned NIeT dated 30.06.2025 and to initiate fresh tender process and to direct initiation of departmental enquiry against the Executive Engineer and the Assistant Engineer, PWD Yomcha Division. 13. The respondent No. 4, by filing affidavit-in-opposition, has narrated the entire factum of the case thereby rebutting the claim of the petitioner that the petitioner was debarred from participation in the said tender process. 14. Mr. R. H. Nabam, learned Additional Advocate General, referring to the affidavit-in-opposition filed on behalf of the respondent No. 4, submits that the office of the Executive Engineer, PWD Yomcha Division had specifically mentioned 30.06.2025 to 05.07.2025 as the date for submission of processing fees and for production of bidders original documents like PAN Card, Aadhar Card, Contractor Registration etc. as per Additional Special Conditions of the bid document under Clause 26. The said Clause is not unreasonable as it is well established within all the existing norms and rules. The claim of the petitioner that the time for submission of all the mandated documents was short due to this particular clause is totally unwarranted as any bidder participating in the NIeT will mandatorily have to fulfill all the laid down norms and requirements. He submits that the Executive Engineer has issued an order to several subordinate officers under his division directing and authorizing them to receive the original tender documents including the Earnest Money Deposit (EMD), tender processing fees and other requisite documents from the intending bidders within the stipulated period. Page No.# 9/15 15. Mr. Nabam, learned Additional Advocate General, submits that altogether 4 (four) bidders, namely, M/s HB Enterprises, M/s T.J. Enterprises, M/s Rinya Yangfo Enterprises and M/s Badri Rai & Co., submitted their documents through their authorized representatives/ signatories. The documents submitted by only 4 (four) bidders were duly accepted. However, out of the total 4 (four) bidders, documents of only 2 (two) bidders, namely, M/s T. J. Enterprises and M/s HB Enterprises, were found to be correct and in accordance with the requirements and as such, their documents including the processing fees and EMD were accepted. The documents of other 2 (two) bidders, namely, M/s Rinya Yangfo Enterprises and the petitioner, did not fulfill the criteria under Section 3, condition of contract and Additional Special Conditions at the time of submission/collection of processing fees and hence, were found not eligible for further processing. He submits that the same was informed and communicated to M/s Rinya Yangfo Enterprises and the petitioner through their authorized signatories on the same day of submission of the documents, i.e. on 04.07.2025 and 03.07.2025, by the office of the Executive Engineer. 16. Mr. R. H. Nabam, learned Additional Advocate General, has categorically denied the allegation of absence of the Executive Engineer from office and the submissions made by the petitioner in that regard. He submits that the documents relied upon by the petitioner, including the note purportedly written by a Junior Engineer stating that due to the absence of the concerned authority the application and processing fee could not be received, are not correct. It is further submitted that the process of submission of tender documents, including the receipt of processing fee and Earnest Money Deposit (EMD), was duly carried out as per the terms and conditions of the NIeT and the other intending bidders were able to comply with the same within the stipulated period. Page No.# 10/15 Therefore, he submits that the petitioner was duly intimated through the authorized signatory one Shri Kali Yomcha with regard to non-fulfillment of Section 3, condition of contract under Additional Special Condition clearly informing the participation of the petitioner in the bidding process in the said NIeT at the time of submission/collection of the process fee as required in the terms of the NIeT. Accordingly, the cases of the petitioner and one M/s Rinya Yangfo Enterprise were found to be non-responsive for further process. Therefore, the petitioner is estopped from claiming for initiation of fresh tender as the petitioner did not fulfill the terms of the tender as per Clause 26 of the Additional Special Conditions of the tender and as such writ petition is liable to be dismissed. 17. Mr. D. Panging, learned counsel for the respondent Nos. 5 & 6, while subscribing to the submissions of the learned Additional Advocate General, Mr. R. H. Nabam, submits that the petitioner has not submitted the required documents as per Clause 5 of the NIeT and Clause 26 of Additional Special Condition of tender. The petitioner failed to submit Contractor Registration, Aadhar Card, PAN Card and did not produce any original documents. The representative of the petitioner has not submitted any original documents mentioned above and produced the same on 03.07.2025. One M/s Rinya Yangfo Enterprise represented by one Shri Karpe Yomcha also did not submit the required documents and produced the original on 04.07.2025, which is clearly reflected from the record that the petitioner and the said M/s Rinya Yangfo Enterprises have not produced the original documents, although the tender documents were received by the officials entrusted in the office of the Executive Engineer. Therefore, since the petitioner has not fulfilled the required terms of the tender, he cannot agitate that the time specified for submission and Page No.# 11/15 collection of documents including processing fee and EMD etc. to be short and since the petitioner has not been found eligible to be further processed in terms of the Clause 26 of the Additional Special Condition of tender, there is no merit in the writ petition. He further submits that despite communication of rejection, the claim for not allow him to participate in the tender process amounts to suppression of material facts. Therefore, the writ petition is liable to be dismissed. 18. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record. 19. The petitioner, a Class-1(A) contractor under Assam Public Works (Building) Department, Government of Assam, appears to have intended to participate in the tender process pursuant to the NIeT dated 30.06.2025, issued by the Executive Engineer, PWD Yomcha Division for the work of “Upgradation of Yomcha Additional Deputy Commissioner HQ to Liromoba EAC HQ road under (CMCSRDP-II)”. 20. Essentially, the case projected by the petitioner is that providing 5 (five) days time from 03.06.2025 to 05.07.2025 for paying the cost of the bidding documents along with EMD and other original documents to the Executive Engineer is too short and due to continuous absence of the Executive Engineer in those specified days from the office has deprived the petitioner from participation in the said tender process. 21. The relevant terms of the tender are provided under Clause 5 of NIeT and Clause 26 of Additional Special Condition of tender. For a proper appreciation, Page No.# 12/15 Clause 5 of NIeT and Clause 26 of Additional Special Condition of tender, are extracted herein below: Clause 5 of NIeT “5. The bids can be deposited before the time specified by paying the cost of the bidding documents (non-refundable) in Cash of Rs. 10,000/- (Rupees Ten Thousand) only along with the EMD and other original documents to the "Executive Engineer, Yomcha Division, PWD, A.P." from 30/06/25 to 05/07/2025 during office Hrs at the specified opening place for the work listed in the tender, Before submission of online bids, the bidders must ensure that the scanned copy of all the necessary documents have been attached with the Bids. The details of the cost of documents and the Bid Security specified in the tender document should be same as submitted online (Scanned copies), otherwise will be summarily rejected. The department does not take any responsibility for delay caused due to non-availability or slow internet connection or network, traffic jam etc for online bids. Clause 26 of Additional Special Condition of tender. “26. Processing Fee shall be collected from the Division Office, PWD Yomcha from the assigned person and duly counter signed by Assistant Engineer, Yomcha PWD Sub- Division by the bidder/authorized representative on production of bidders original identify proof viz: Pan Card, Aadhar Card, Contract Registration certificate on 30/06/2025 to 05/07/2025, failing which no processing fee shall be received or processing fee receipt not in order shall be summarily rejected. 22. Perusal of the above clauses show that the processing fee shall be collected from the Division Office, PWD Yomcha from the assigned person and duly countersigned by Assistant Engineer, Yomcha PWD Sub-Division by the bidder/authorized representative on production of bidders original identity proof, i.e. PAN Card, Aadhar Card and Contractor Registration Certificate on 30.06.2025, failing which no processing fee shall be received or processing fee receipt not in order shall be summarily rejected. 23. Record clearly reveals that on 03.07.2025, the petitioner, through its authorized representative one Shri Kali Yomcha, has submitted the required Page No.# 13/15 documents which were duly received. However, no original documents were produced before the authorities as required under Clause 5 of NIeT and Clause 26 of Additional Special Condition of tender. It appears that the petitioner through his authorized representative has submitted his bids on 03.07.2025 without furnishing the required documents or without production of the original documents such as PAN Card, Aadhar Card and Contractors Registration Certificate on the said date which amounts to non-fulfillment of the Clause 26 of the Additional Special Condition of the tender. Therefore, the contention of the petitioner that due to short period of time for submission of tender and the continuous absence of Executive Engineer from the office during the period for obtaining processing fee and submission of tender bids from 13.06.2025 to 05.07.2025 cannot be accepted. 24. Record also reveals that the respondent authorities have communicated on 03.07.2025 specifically addressed to the authorized representative of the petitioner informing that the participation in the bidding process at the time of submission/collection of the processing fee, the petitioner has not fulfilled the requirements stipulated under Section 3 of the conditions of contract under Additional Special Conditions and therefore, the case of the petitioner was treated as non-responsive, which in my considered view, appears to be in accordance with the terms of the tender as non submission and production of the original documents as required would entail rejection of the bids summarily. 25. The petitioner, although in its affidavit-in-reply, stated that the communication dated 03.07.2025 by the Executive Engineer informing that the petitioner has not fulfilled Section 3 of the conditions of the contract under Additional Special Condition, particularly Clause 26, and therefore treated to be Page No.# 14/15 non-responsive, has not been received by the petitioner, in view of the specific communication dated 03.07.2025 addressed to the authorized representative Mr. Kali Yomcha, such mere denial is unbelievable and unacceptable. More so, even after extension of time for submission of bids, the petitioner has failed to resubmit his bids despite an opportunity available to the petitioner and rather insisted that due to very short period of 5 (five) days in collection of processing fee and production of original documents and due to continuous absence of Executive Engineer he has been deprived of fair participation in tender process, which in my view is nothing but appears to be an excuse to overcome the valid rejection of his bid in terms of Clause 26 of the Additional Special Condition. It is noted that the petitioner has decided not to challenge the rejection then and even now despite the knowledge of the same. 26. It is a settled position of law that acceptance and rejection of a bid of the 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. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision that no responsible authority acting reasonable and in accordance with relevant law could have reached. Whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. An employer would be confronted with difficulties if each and every tenderer furnishes documents not in the prescribed format, but in their own way as in that event, it would involve scrutiny of documents which in turn would put avoidable and undue burden. It has also been also held that every bidder is obligated to adhere to the prescribed terms of the tender and failure to abide by shall be a sufficient reason for rejection of the bid. Page No.# 15/15 27. The Hon’ble Supreme court, very recently, in the case of Prakash Asphaltings and Toll Highways (India) Ltd. Vs. Mandeepa Enterprises and others, reported in 2025 SCC Online SC 1959, once again reinforced and reaffirmed the principles that tender conditions must be strictly adhered to. In other words, it must be punctiliously followed. The terms of tender must be given full effect and Courts should defer to the interpretation of tendering authority. 28. In the present case, as noted above, it is clearly provided under Clause 3 of conditions of contract under Additional Special Conditions of the tender that the bidders/authorized representative shall produce the original identity proof, i.e. PAN Card, Aadhar Card, Contract Registration Certificate on the stipulated date failing which no processing fee shall be received or processing fee received not in order shall be summarily rejected. Admittedly, as per the records, the petitioner has not fulfilled the said terms and conditions as the petitioner has failed to submit the original documents as required under the above conditions. Thus, in my view, the rejection of the petitioner is in accordance with the terms of the tender and claim of the petitioner to the effect that he has been deprived from participation in the said tender on account of short period of time and absence of the Executive Engineer falls flat and is rejected. 29. In view of discussion made herein above, I find no merit in the writ petition. Accordingly, writ petition stands dismissed and disposed of. Interim order passed stands vacated. Cost(s) made easy. JUDGE Comparing Assistant