1 2025:CGHC:47954-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 4843 of 2025 Surface Engineering Pvt. Ltd Having its Registered Office at 5th Floor, Orange Hive, Mowa, Raipur, Chhattisgarh. Through Authorized Signatory Mr. Abhay Bafna-Director, S/o Suraj Mal Bafna, aged about 63 years, R/o Near Jain Temple, Raja Para Kanker, District- Kanker, Chhattisgarh. ... Petitioner versus 1 - Union of India Through Its Secretary, Ministry of Road Transport and Highways, Transport Bhawan, New Delhi – 110001. 2 - Chief Engineer National Highway Zone, Public Works Department, Raipur (C.G.) 3 - Finance Controller Office of the Engineer-In-Chief, Public Works Department, Nava Raipur, Atal Nagar, District- Raipur (C.G.) 4 - Superintending Engineer NH Circle, Public Works Department, Raipur (C.G.) 5 - Executive Engineer NH Divisiona, Public Works Department, Kondagaon, District- Kondagaon (C.G.) 6 - State of Chhattisgarh Through The Principal Secretary, Public Works Department, Mantralaya, Nava Raipur, Atal Nagar, District- Raipur (C.G.) ... Respondents For Petitioner : Mr. Kishore Bhaduri, Senior Advocate assisted by Mr. Khilesh Sahu, Advocate For Respondent-UOI : Mr. Ramakant Mishra, Dy. Solicitor General along with Ms. Shweta Rai, Advocate ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA 2 For Respondent-State : Mr. Prafull N. Bharat, Advocate General along with Mr. Sangharsh Pandey, Govt. Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru , Judge Order on Board Per Ramesh Sinha , Chief Justice 18 . 09 .202 5 1. Heard Mr. Kishore Bhaduri, learned Senior Advocate assisted by Mr. Khilesh Sahu, learned counsel for the petitioner. Also heard Mr. Ramakant Mishra, learned Deputy Solicitor General along with Ms. Shweta Rai, learned counsel appearing for the respondent- UOI and Mr. Prafull N. Bharat, learned Advocate General along with Mr. Sangharsh Pandey, learned Government Advocate appearing for respondent-State. 2. The present writ petition has been filed by the petitioner under Article 226 of the Constitution of India, with the following prayers: “I. Quash and set aside the impugned order dated 06.09.2025 (Memo No. 1149/CE/NH/TC/2025) passed by the Office of the Chief Engineer, National Highway Zone, PWD, Raipur, whereby the technical bid of the petitioner has been disqualified; II. Direct the respondents to reconsider and evaluate the technical bid submitted by the petitioner for the tender works of NH-130D PKG-4 in accordance with law and without treating the clerical error in the Power of Attorney as disqualification; III. Issue an appropriate writ, order or direction to permit the petitioner to participate in the financial bid opening scheduled for 12.09.2025 or in any subsequent rescheduled financial bid process, if already conducted, 3 by treating the petitioner as technically responsive; IV. one financial bid be kept sealed subject to outcome of this petition. V. Pass any other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case, in the interest of justice.” 3. Mr. Kishore Bhaduri, learned Senior Advocate, appearing for the petitioner would submit that the impugned order dated 06.09.2025, disqualifying the petitioner’s technical bid is arbitrary, illegal and violative of Article 14 and 19(1)(g) of the Constitution of India. The rejection has been made solely on account of a clerical error in the e-stamp description of the Power of Attorney, which does not affect the substance or validity of the authorization already executed and submitted. He further submitted that the error pointed out by the respondent is purely technical and curable in nature. The tender conditions nowhere prescribe that a clerical mistake in the description of parties on the e-stamp would render the Power of Attorney invalid. The General Power of Attorney duly executed in favor of the petitioner's Director was already submitted along with the bid, establishing authority beyond doubt. He also submitted that the bids can be only rejected on the ground of non- fulfillment of essential conditions and the defect pointed out in the instant case, is non-essential condition, which can be rectified. He contended that though Clause 23.4 (ii) specifically provides that after receipt of confirmation of the bid security, the bidder will be asked in writing (usually within 10 days of opening of the Technical 4 Bid) to clarify or modify his technical bid, if necessary with respect to any rectifiable defects, but before disqualifying the petitioner’s technical bid no opportunity of hearing or clarification was given, which is violative of principles of natural justice. The petitioner had immediately represented on 07.09.2025, pointing out that the error was inadvertent and curable, yet the same was not considered. In support of his contention, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Banshidhar Construction Pvt. Ltd. Vs. Bharat Coking Coal Limited and Others (Civil Appeal No. 11005 of 2024 @ Special Leave Petition (Civil) No. 17383/2024) decided on 04.10.2024. 4. On the other hand, Mr. Prafull N. Bharat, learned Advocate General opposed the aforesaid submission and submitted that e- Stamp has been purchased by “Surface Engineering Private Limited” and same has been executed by “M/s Surface Engineering Private Limited” and there is no where mentioned in the alleged Power of Attorney that who was signed the same and who has given this Power of Attorney. He further submitted that Section 2 of the Power of Attorney Act clearly says that “the donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the 5 signature and seal, of the donor thereof”, but in the alleged Power of Attorney, there is no where mentioned in the alleged Power of Attorney that who was signed the same and who has given the said Power of Attorney, as such, there is no illegality in rejecting the Technical Bid of the petitioner. 5. Mr. Ramakant Mishra, learned Deputy Solicitor General, appearing for the respondent-UOI submitted that the Power of Attorney supplied by the petitioner is neither properly stamped nor executed in lawful manner and thus, it cannot be treated as valid and legally enforceable instrument, and accordingly the petitioner has been considered as non-responsive due to non-fulfillment of requirement of Clause 4.2(iv) and 4.3(a) of SBD. 6. We have heard learned counsel for the parties and perused the impugned order and the material available on record. 7. Section 2 of the Power of Attorney Act deals with execution under power-of-attorney, which reads as under : “2. Execution under power-of-attorney.—The donee of a power-of-attorney may, if he thinks fit, execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof. This section applies to powers-of-attorney created by instruments executed either before or after this Act comes into force.” 6 8. From perusal of the impugned order, it transpires that the meeting of Evaluation Committee was held on 16.07.2025, 22.08.2025 and 06.09.2025 and during evaluation it was observed by the Technical Evaluation Committee that the 1st party bears the name of “Surface Engineering Private Limited” and 2nd party as “the Chief Engineer NH Zone Raipur” hence the e-stamp does not co- relate with the content of Power of Attorney. Further from perusal of the e-Stamp (Annexure-P/4), it transpires that the same has been purchased by “Surface Engineering Private Limited” and same has been executed by “M/s Surface Engineering Private Limited” and there is no where mentioned in the alleged Power of Attorney the name or address of any person that who has signed the same and who has given this Power of Attorney, which is complete in violation of Section 2 of the Power of Attorney Act. Moreover, the same has not been properly stamped and therefore, it cannot be treated as valid and legally enforceable instrument. The case law relied upon by the petitioner is distinguishable of the facts and circumstances of the instant case. 9. The law with respect to interference in tender matters is limited to certain extent as has been considered by the Hon'ble Supreme Court in large number of cases including in the case of Tata Motors Limited vs Brihan Mumbai Electric Supply & Transport Undertaking (BEST) and others1 wherein the Hon’ble Supreme Court has considered the factum of interference in the tender matters and has held as under: 1 2023 SCC OnLine SC 671 7 "48. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. The courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and ublic sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer." 10. Recently, the Hon’ble Supreme Court, in the matter of Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Ltd. & Others, {Civil Appeal No. 11005 OF 2024, decided on 04.10.2024}, taking note of the decisions rendered in various other celebrated judgments, observed as under: “21. There cannot be any disagreement to the legal proposition propounded in catena of decisions of this 8 Court relied upon by the learned counsels for the Respondents to the effect that the Court does not sit as a Court of Appeal in the matter of award of contracts and it merely reviews the manner in which the decision was made; and that the Government and its instrumentalities must have a freedom of entering into the contracts. However, it is equally well settled that the decision of the government/ its instrumentalities must be free from arbitrariness and must not be affected by any bias or actuated by malafides. Government bodies being public authorities are expected to uphold fairness, equality and public interest even while dealing with contractual matters. Right to equality under Article 14 abhors arbitrariness. Public authorities have to ensure that no bias, favouritism or arbitrariness are shown during the bidding process and that the entire bidding process is carried out in absolutely transparent manner. 11. 22. At this juncture, we may reiterate the well- established tenets of law pertaining to the scope of judicial intervention in Government Contracts. 23. In Sterling Computers Limited vs. M/s. M & N Publications Limited and Others2, this Court while dealing with the scope of judicial review of award of contracts held: - “18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the “decision making process”. In this connection reference may be made to the case of Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] where it was said that: (p. 144a) “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.” By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any 2 (1993) 1 SCC 445 9 such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141] the courts can certainly examine whether “decision-making process” was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution.” 24. In Tata Cellular vs. Union of India3, this Court had laid down certain priniciples for the judicial review of administrative action. “94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.” 3 (1994) 6 SCC 651 10 25. It has also been held in ABL International Limited and Another vs. Export Credit Guarantee Corporation of India Limited and Others4, as under: - “53. From the above, it is clear that when an instrumentality of the State acts contrary to public good and public interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations, it really acts contrary to the constitutional guarantee found in Article 14 of the Constitution.” 26. In Jagdish Mandal vs. State of Orissa and Others5, this Court after discussing number of judgments laid down two tests to determine the extent of judicial interference in tender matters. They are: - “22. (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.” 27. In Mihan India Ltd. vs. GMR Airports Ltd. and Others6, while observing that the government contracts granted by the government bodies must uphold fairness, equality and rule of law while dealing with the contractual matters, it was observed in Para 50 as under: - “50. In view of the above, it is apparent that in government contracts, if granted by the government bodies, it is expected to uphold fairness, equality and rule of law while dealing with contractual matters. Right to equality under Article 14 of the Constitution of India abhors arbitrariness. The 4 (2004) 3 SCC 553 5 (2007) 14 SCC 517 6 (2022) SCC OnLine SC 574 11 transparent bidding process is favoured by the Court to ensure that constitutional requirements are satisfied. It is said that the constitutional guarantee as provided under Article 14 of the Constitution of India demands the State to act in a fair and reasonable manner unless public interest demands otherwise. It is expedient that the degree of compromise of any private legitimate interest must correspond proportionately to the public interest.” 28. It was sought to be submitted by the learned Counsels for the Respondents relying upon the observations made in Central Coalfields Limited and Another vs. SLL-SML (Joint Venture Consortium) and Others7, that whether a term of NIT is essential or not is a decision taken by the employer which should be respected. However, in the said judgment also it is observed that if the employer has exercised the inherent authority to deviate from the essential term, such deviation has to be made applicable to all the bidders and potential bidders. It was observed in Para 47 and 48 as under:- “47. The result of this discussion is that the issue of 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 alsofrom the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651] 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 intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 7 (2016) 8 SCC 622 12 517] followed in Michigan Rubber [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216]. 48. Therefore, whether a term of 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 [Ramana Dayaram Shetty v.International Airport Authority of India, (1979) 3 SCC 489] . However, if the term is held by the employer to be ancillary or subsidiary, even thatdecision 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.” 12. Considering the submissions made by learned counsel appearing for the parties and applying the principle of law laid down by the Hon’ble Supreme Court in the above-stated judgments (supra), we do not find any scope for interference in the instant petition. 13. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. No cost(s). Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice Chandra