Page No.# 1/11 GAHC040003072025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/11/2025 M/s Aasray Foods Pvt Ltd and Anr having its office at 22, Amarabathi Path, 1st Floor, Christian Basti, G.S. Road, Guwahati 781101, Kamrup(M), Assam. represented by its Director Shri Amrit Deorah 2: Amrit Deorah Age: Occupation : Son of Late Ashok Kr Deorah resident of Flat No. C801-C3802 Spanish Garden Zoo Road PO Dispur Guwahati 781005 District Kamrup (M) Assa VERSUS The State of AP and 3 Ors through the Secretary, Govt of Arunachal Pradesh, Women and Child Development Department, Itanagar Capital Complex, Itanagar 791111 2:The Director Age: 0 Occupation : Directorate of Women and Child Development Itanagar Capital Complex Itanagar 791111 3:M/s Rausheena Udyog Limited Age: 0 Occupation : having its office at Mahamaya Road Dibrugarh Assam 786001 being represented by its Director Shri Saroj Kr Agarwal. Page No.# 2/11 4:M/s Continental Milkose (India) Limited Age: 0 Occupation : having its office at Flat No.5D Priyanka Apartment SC Goswami Road Panbazar Guwahati Kamrup (M) Assam 781001 being represented by its Director Shri Shyam Sundar Agarwa Advocate for the Petitioner : Irmala Das, S Dutta,P Sengupta,1 I Lahiri Advocate for the Respondent : GA (AP), Linked Case : WA/6/2025 M/s Orion Health Foods Private Limited Age: 0 Occupation : Address:1st Floor Juhar Market AC Lane Near UCCO Bank Shillong 793001 Meghalaya India represented by Shri Ankur Jhunjhunwala Son of Uttam Jhunjhunwala resident of 1st Floor Juhar Market AC Lane Near UCO Bank Shillong 793001 Meghalaya India VERSUS The State of AP and 6 Ors Age: 0 Occupation : Address:represented by its Secretary Women and Child Development Department Govt of Arunachal Pradesh Page No.# 3/11 C Sector Itanagar Arunachal Pradesh 791111 2:The Secretary Women and Child Development Department Age: 0 Occupation : Address:Govt of Arunachal Pradesh C Sector Itanagar Arunachal Pradesh 791111 3:The Director of Women and Child Development Department Age: 0 Occupation : Address:Govt of Arunachal Pradesh C Sector Itanagar Arunachal Pradesh 791111 4:The Joint Director Age: 0 Occupation : Address:Women and Child Development Department Govt of Arunachal Pradesh C Sector Itanagar Arunachal Pradesh 791111 5:M/s Aasray Foods Pvt Ltd Age: 0 Occupation : Address:having its office at 22 Amarabathi Path 1st Floor Christian Basti G.S. Road Guwahati 781101 Kamrup(M) Assam. represented by its Director Shri Amrit Deorah Son of Late Ashok Kr Deorah resident of Flat No CC801-C3802 Spanish Garden Zoo Road PO Dispur Guwahati Kamrup(M) Assam 781005 Page No.# 4/11 6:M/s Rausheena Udyog Limited Age: 0 Occupation : Address:represented by its Director Shri Saroj Kr Agarwal and having its office at Mahalaya Road Dibrugarh Assam 786001 7:M/s Continental Milkose (India) Limited Age: 0 Occupation : Address:represented by its Director Shri Shyam Sunda having its office at Flat No.5D Priyanka Apartment GC Goswami Road Panbazaar Guwahati Assam 781001 ------------ Advocate for : A K Sahewalla Advocate for : GA (AP) appearing for The State of AP and 6 Ors: Advocate , Linked Case : WA/12/2025 M/s Aasray Foods Private Ltd and Anr Age: 0 Occupation : Address:having its office at 22 Amarabathi Path 1st Floor Christian Basti G.S. Road Guwahati 781101 Kamrup(M) Assam. represented by its Director Shri Amrit Deorah 2: Amrit Deorah Age: 38 Occupation : Address:Son of Late Ashok Kr Deorah resident of Flat No. C801-C3802 Spanish Garden Zoo Road PO Dispur Guwahati 781005 District Kamrup (M) Assam VERSUS Page No.# 5/11 The State of AP and Anr Age: 0 Occupation : Address:through the Secretary Govt of Arunachal Pradesh Women and Child Development Department Itanagar Capital Complex Itanagar 791111 2:The Director Age: 0 Occupation : Address:Directorate of Women and Child Development Itanagar Capital Complex Itanagar 791111 ------------ Advocate for : Irmala Das Advocate for : GA (AP) appearing for The State of AP and Anr: Advocate , appearing for 2, respectively. BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA HONOURABLE MR. JUSTICE BUDI HABUNG For the Appellants : Mr. S. Dutta. : Ms. N. Anju. : Mr. A. K. Sahewalla For the Respondent Nos. 1 &2: Mr. R. H. Nabam Date of hearing : 25.03.2025. Date of Judgment : 30.04.2025. Judgment & Order (CAV) (Budi Habung,J) Heard Mr. S. Dutta, learned Senior counsel assisted by Ms. N. Anju, learned counselsfor the appellants in WA/11 (AP) 2025 and WA/12(AP)2025 and Mr. A. K. Sahewalla, learned counsel for the appellant in WA/6(AP)2025. Also Page No.# 6/11 heard Mr. R. H. Nabam, learned Additional Advocate General appearing for the State respondent Nos. 1 and 2. 2. Since the present batches of writ appeals involve similar factual backgrounds and legal issues, they are being heard together and are disposed of by this common order. 3. The appellants in WA/11(AP)2025 are the petitioners in WP(C)/93/2024; the appellants in WA/12(AP)2015 are the petitioners in WP(C)/227/2024; and the appellants in WA/06(AP)2025 are the petitioners in WP(C)/115/2024. Among other reliefs, the prayers in WP(C)/93/2024 and WP(C)/115/2024 are for setting aside and quashing the NIT dated 20.02.2024, as well as clauses 5 and 8 of Annexure-B thereto, which prescribe qualification points based on the SS Technical Bid of the bidders. The prayer in WP(C)/227/2024, among other reliefs, is for setting aside and quashing the corrigendum dated 10.03.2024. 4. The learned Single Judge, by the impugned common judgment and order dated 03.01.2025, dismissed all the writ petitions as being devoid of merit. 5. Aggrieved by the dismissal of WP(C)/93/2024, an appeal has been registered as WA/11(AP)2025; against the dismissal of WP(C)/227/2024, an appeal is WA/12(AP)2015; and against the dismissal of WP(C)/115/2024, an appeal is WA/06(AP)2025. 6. The appellants challenged the common judgment and order dated 03.01.2025, passed in WP(C) Nos. 93, 227, and 115 of 2024, on the grounds that clauses 21(l), 21(n), and 21(q), along with the qualification points specified in Annexure-B to the NIeT dated 20.02.2024, reflect irreconcilable inconsistencies. These issues were further compounded by the corrigendum dated 10.03.2024. Despite recording these concerns in paragraph 38 of the Page No.# 7/11 judgment and noting that the qualification points in Annexure-B appeared not to be rational, the learned Single Judge erred in not interfering with the impugned terms and conditions. Consequently, the selection of the private respondent based on these conditions is challenged as improper. 7. The learned senior counsel for the appellants submitted that the learned Single Judge overlooked the fact that the corrigendum dated 10.03.2024 was stayed by an order dated 07.06.2024 in WP(C) No. 227/2024, and this stay was continued until the disposal of the writ petitions by an order dated 21.11.2024 in WP(C) Nos. 93, 115, and 227 of 2024. Therefore, the selection of the private respondent as the successful bidder, based on the tender summary report dated 24.07.2024, was without jurisdiction and thus improper. 8. The learned senior counsel further argued that the learned Single Judge failed to consider that, although WP(C) Nos. 93 and 115 of 2024 were amended to challenge the selection of the private respondents, no affidavits were filed by any respondents thereafter. As a result, the petitioners’ contentions remained uncontroverted. Under these circumstances, the finding that the authorities sufficiently explained and interpreted the terms without ambiguity is unfounded. 9. For the reasons stated above, it is submitted that the common judgment and order dated 03.01.2025 should be interfered with. 10. By an order dated 09.01.2025, passed in IA(C)/76 of 2025 and IA(C)/77 of 2025, this Court stayed the operation of the impugned common judgment and order dated 03.01.2025, in respect of WP(C)/115/2024, WP(C)/93/2024, WP(C)/105/2024, and WP(C)/227/2024. Consequently, the interim orders passed on 04.03.2024 in WP(C)/93/2024 and on 13.03.2024 in WP(C)/115/2024 were restored. This order also briefly summarized the case. The relevant Page No.# 8/11 paragraphs are reproduced bellow: “…4) In view of the issues raised in both the connected intra Court appeals, the Court is inclined to issue notice which is made returnable on 10.02.2025. Accordingly, the applicants are directed to take steps within 10.01.2025 for service of notice on the respondents nos. 3 and 4 in I.A.(C) No. 76/2025 by registered post with A/D. Extra copies of this application be served upon the learned Senior Govt. Advocate within 10.01.2025. 5) The common applicants in both this interlocutory applications have prayed for stay/ suspension of the operation of the common judgement and order dated 03.01.2025, in so far as it relates to WP(C) No.93/2024 and WP(C) No.227/2024. 6) The prayer is opposed by the learned Senior Govt. Advocate on the ground that the tender was for supply of ready to food items fortified with minerals and vitamins which are intended for being supplied under the various nutrition schemes under the Women and Child Development Department, Govt. of Arunachal Pradesh and accordingly, public interest would suffer if the operation of the judgment and order, impugned in the connected two appeals are stayed/ suspended. 7) Pursuant to the earlier tender process for which NIT dated 13.09.2021 was issued, the applicant no.1 was selected as one of the successful bidders pursuant to supply order dated 10.02.2022, issued by respondent no.2, the applicants had supplied rice and pulse based energy food to the State respondents and accordingly, the respondent no.2 is stated have issued a completion certificate dated 06.07.2023 to the respondent no.1. It is projected that the term of the contract was extended by order dated 29.05.2023 till finalisation of the next tender process. The fresh NIT was issued on 20.02.2024. The said NIT has been assailed by the applicants, amongst others, on the ground that clause 5 and 8 of annexure-B to the NIT by which qualifying points were incorporated in the NIT, was unreasonable, irrational and arbitrary and incorporated for extraneous reasons with a view to accommodate and give advantage to only few bidders and to give them an unfair advantage. 8) By order dated 04.03.2024, passed in WP(C) No.93/2024, the learned Single Judge had issued an interim direction that the respondent authorities shall receive the bids in pursuance to the NIT dated 19.02.2024 and shall process the same on its own merits, however, the award of work shall not be effected without leave of the Court. By order dated 07.06.2024, passed in Page No.# 9/11 WP(C) No.227/2024, the learned Single Judge had passed an interim order and thereby the operation of the impugned corrigendum dated 10.03.2024 was stayed till the next date of listing. 9) The learned senior Counsel for the applicants has been able to prima facie demonstrate that the applicant no.1, otherwise has the eligibility qualifications to participate in the tender process. However, under Claus 5 and 8 of the corrigendum, impugned in WP(C) No.227/2024, certain additional qualification points were added for supplying in more than one state and for a higher net worth. The learned senior counsel for the applicants has also been able to prima facie show that the learned Single Judge in paragraph no.38 of the impugned judgement has arrived at a conclusion that the qualification points at annexure-B to the clauses in the NIT is not rational. The learned senior counsel for the applicants has also been able to demonstrate that although no affidavit-in-opposition has been filed by the State in the proceedings of WP(C) No.227/2024, in paragraph no.38 of the impugned judgment it has been recorded that “on consideration of the materials on record reveals that the respondent authority have explained sufficiently and interpreted the terms without any scope of ambiguity”, which is prima facie contrary to the records. 10) The learned senior counsel for the applicants has submitted that specific time was taken that the bid submitted by the applicant no.1 was more competitive than the bid of the respondent no.3 and 4 in W.A. No.7/2025 in respect of item no. 1,2 and 3 of the NIT. It is further submitted that for reasons not disclosed by the State respondents by the comparative chart of bid was never produced in the writ proceedings. It is also submitted that by order dated 26.11.2024, the learned Single Judge has recorded that the oral arguments are concluded and thereupon, the learned Addl. Advocate General was directed to produce the relevant records. It is further submitted that the impugned judgement and order dated 03.01.2025 does not disclose that the relevant records were produced before the learned Single Judge by the State. Moreover, it is submitted that assuming that the records were produced after conclusion of hearing, the learned Single Judge has perused the records without the same being brought to the notice of the counsel appearing for the appellants and therefore the contents of such records are not in the knowledge of the applicants or the learned Counsel. 11) In the said context, upon a query of the Court, the learned Senior Govt. Advocate has submitted that he has no instructions as to whether and affidavit-in-opposition was filed by the State respondents in WP(C) No.227/2024 and as nothing has been recorded in the impugned judgment Page No.# 10/11 and order, without instructions he is unable to take a stand that an affidavit- inopposition was filed by the State respondents in connection with the said writ proceeding and it is also clearly submitted that in absence of any observation in the impugned judgment that the Addl. Advocate General for the State had produced any record as directed by order dated 26.11.2024 passed in WP(C) No.93/2024, he has no instruction as to whether the records of the tender process was produced before the learned Single Judge. 12) In view of above discussions and in light of the finding and conclusion recorded by the learned Single Judge in paragraph no.38 of impugned judgment and order to the effect that the “qualification points at Annexure-B to the Clauses in the NIeT appears not rational”, the Court is inclined to stay the operation of the common judgement and order dated 03.01.2025, passed in WP(C) No. 115/2024, WP(C) No.93/2024, WP(C) No.105/2024 and WP(C) No.227/2024, till the next date of listing. Resultantly, the interim order passed on 04.03.2024 by the learned Single Judge in WP(C) No.93/2024 stands restored with effect from the date when certified copy of this order is served on the office of the Director, Directorate of Women and Child Development, Govt. of Arunachal Pradesh. 13) List on 10.02.2025, on which date the interim order passed shall be revisited.” 11. However, Mr. S. Dutta, the learned senior counsel for the appellants, submitted that, without delving into the merits in detail, his limited submission at this stage is that the common judgment and order dated 03.01.2025 should be interfered with, and the state may be allowed to decide on the matter in accordance with law. Meanwhile, the appellants should continue supplying under the existing system as per the order dated 29.05.2023 issued by the Joint Secretary, Women and Child Development Department. 12. In light of this, while agreeing with the proposal of the learned counsel for the appellants, the State respondents contended that they may be given liberty to float a new tender, which the appellants’ counsel also agreed to. 13. Considering the facts and circumstances, and the consensus reached by the parties, the impugned judgment and order dated 03.01.2025 are set aside. The Page No.# 11/11 conditions of the NIeT dated 20.02.2024 and the corrigendum dated 10.03.2024 are also interfered with. However, the State shall be at liberty to issue a new NIeT and finalize the same in accordance with law. It is further provided that until the new tender is finalized, the existing system of supply, as ordered on 29.05.2023, by the Joint Secretary, Women and Child Development Department shall continue. 14. With these observations, the writ appeals are disposed of. JUDGE Comparing Assistant