Page No.# 1/21 GAHC010046212025 2025:GAU-AS:2271- DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/74/2025 M/S BADRI RAI AND COMPANY STATION ROAD, P.O. DULIAJAN -786602 DISTRICT - DIBRUGARH, ASSAM REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE VERSUS THE STATE OF ASSAM AND ORS REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF ASSAM, ASSAM SECRETARIAT, DISPUR, GUWAHATI 05 2:THE DEPARTMENT OF PWD GOVERNMENT OF ASSAM REPRESENTED BY CHIEF ENGINEER OFFICE OF THE CHIEF ENGINEER PWD BUILDING ASSAM CHANDMARI GUWAHATI 03 3:THE SPL CHIEF ENGINEER DEPARTMENT OF PWD P.W.D. BUILDING (HEALTH AND EDUCATION)ASSAM CHANDMARI GUWAHATI-3 4:TRIBENI CONSTRUCTION LTD TRIBENI COMMERCIAL COMPLEX 2ND FLOOR G.S. ROAD ULUBARI GUWAHATI Page No.# 2/21 781001 ASSA Advocate for the Petitioner : MR. K N CHOUDHURY, MR. S P SHARMA,K AHMED Advocate for the Respondent : SC, PWD, FOR CAVEATOR,MR T DAS,MR. I CHOWDHURY SR ADV BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI ORDER Date : 04.03.2025 (K.R. Surana, J) Heard Mr. K.N. Choudhury, learned senior counsel, assisted by Mr. S.P. Sharma, learned counsel for the appellant. Also heard Mr. P. Sarmah, learned Addl. Senior Govt. Advocate for respondent no.1; Mr. B. Gogoi, learned standing counsel for PWD, representing respondent nos. 2 and 3; and Mr. I. Chowdhury, learned senior counsel, assisted by Mr. T. Das, learned counsel for respondent no.4. 2) By filing this intra-Court appeal, the appellant, who is the writ petitioner has assailed the common judgment and order dated 28.02.2025, passed by the learned Single Judge, thereby (i) allowing Review Petition No. 170/2024 – Tribeni Construction Ltd. v. M/s. Badri Rai And Company & 3 others [arising out of W.P.(C) No. 4034/2024], and (ii) dismissing W.P.(C) 4789/2024 - M/s. Badri Rai And Company v. The State of Assam & 3 others. Preliminary issue on maintainability: 3) The learned senior counsel for the respondent no. 4 has raised preliminary issue of maintainability of one memo of appeal although two Page No.# 3/21 separate and unconnected matters were disposed of by a common judgment and order. 4) The learned senior counsel for the appellant has submitted that upon reading of the judgment and order impugned in this intra-Court appeal, it cannot be easily ascertained as to which part of the judgment is concerning the review petition and which part of the impugned judgment and order concerns the writ petition. 5) In this regard, the Court is of the considered opinion that review petition arises in connection with W.P.(C) 4034/2024. The review petition was filed by the respondent no. 4 in this appeal. Therefore, the appellant should have been well advised to file separate appeals. 6) Nonetheless, instead of dismissing one appeal on technical ground, the Court is of the considered opinion that it would meet the ends of justice to direct the appellant to deposit additional prescribed court fees for appeal in connection with the impugned common judgment and order passed in W.P.(C) No. 4789/2024 within a period of 15 days from the date of this order, failing which such court fees shall be recovered in accordance with law. Submissions of the learned senior counsel for admission of the appeal and in support of the prayer for interim relief: 7) The learned senior counsel for the appellant has submitted that the review petition was filed by the respondent no. 4 on the ground that they were not served with notice in connection with W.P.(C) No. 4034/2024 and by the impugned order, their right was affected. To that extent, he would concede to the order. However, when the order dated 29.08.2024, allowing W.P.(C) No. 4034/2024 was recalled, the direction contained in paragraph 29 of the said Page No.# 4/21 order, by which the appellant was granted liberty to file representation to the Special Chief Engineer, Department of PWD, PWD Building (Health & Education), Assam (respondent no.3) on or before 03.09.2024 and direction to the Technical Bid Evaluation Committee to consider the case of the appellant and to communicate the decision to the petitioner would be deemed to have been recalled. Thus, the resultant minutes dated 09.09.2024, of the Technical Bid Evaluation Committee, wherein it was decided that the appellant cannot be said to have fulfilled the qualifying criteria contained in the bidding document and further deciding that the appellant was not technically qualified and that its financial bid shall remain unopened, could not have been saved. Accordingly, it was submitted that the said part of the impugned judgment is hit by error apparent on the face of the record and thus, liable to be interfered with. 8) It was further submitted that ideally, when the review petition was allowed, the W.P.(C) No. 4034/2024, should have been posted for hearing to as to give an opportunity to the respondent no. 4 of being heard. 9) It was also submitted that there are limited grounds on which review can be entertained. The Court may correct a mistake, but in the name of correction, the decision cannot be reversed by substitution of decision by another one. 10) It was submitted that the learned Single Judge had committed grave error in dismissing W.P.(C) No. 4789/2024 because if the technical bid of the appellant was to be rejected, the PWD authorities ought to have rejected it by way of a single decision. However, in this case, the technical bid of the appellant was first rejected vide minutes dated 01.08.2024. However, after the direction of this Court by order dated 29.08.2024, passed in W.P.(C) No. 4034/2024, the Technical Bid Evaluation Committee had rejected the bid of the Page No.# 5/21 appellant on a different ground. Thus, the manner in which the appellant was technically disqualified, is unheard of and nor sustainable. 11) It was submitted that the bid of the appellant was technically rejected by holding that the documents filed with the bid of the appellant did not disclose that any work that was completed by the appellant was awarded in his own name. However, there is nothing in the bid document wherein it is prescribed that the works must have been completed as a principal contractor. It was submitted that the documents showing that the works which were completed by the appellant were awarded by the principal contractor to the appellant in its own name. Moreover, the documents also demonstrated that the nature of contract work completed by the appellant met the requisite qualification. In other words, it was submitted that in the tender document, there is no mention about principal contractor and sub-contractor, but the requirement was to have completed the works as mentioned in the bid document and in this regard, Note (viii) of Clause 2 of Section-I of the NIT and Instructions to Bidder (ITB for short) was referred to. Hence, it was submitted that the said aspect of the matter was neither visited nor considered by the learned Single Judge. 12) Lastly, it was submitted that the respondent no. 4 had concealed that their business conduct was under investigation by lodging of an FIR by the Central Bureau of Investigation on 04.02.2023, where charge-sheet was submitted against the managerial persons on 26.07.2024. Therefore, the business of the PWD with the respondent no. 4 was liable to be terminated as per the clauses of the BID document and ITB. 13) In support of his submissions, various documents contained in the three volume paper-book were referred to. Moreover, the following cases were Page No.# 6/21 cited, viz., (i) Parison Devi v. Sumitri Devi, (1997) 8 SCC 715; (ii) Lily Thomas v. Union of India, (2000) 6 SCC 224; (iii) Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., (2005) 6 SCC 651; (iv) Inderchand Jain (D) through L.Rs v. Motilal (D) through L.Rs, (2009) 14 SCC 663; (v) Jain Studios v. Shin Satellite Public Co. Ltd., (2006) 5 SCC 501; (vi) Perry Kansagra v. Smriti Madan Kansagra, (2019) 20 SCC 753; and (vii) S. Murali Sundaram v. Respondetn: Jothibai Kannan & Ors., 2023 (3) SCALE 300:MANU/SC/0163/2023. Submissions of the learned senior counsel for the respondent no.4 and standing counsel for respondent nos. 2 and 3: 14) Per contra, the learned senior counsel for the respondent no. 4 was submitted that when the learned Single Judge was hearing W.P.(C) No. 4034/2024, though it was recorded in paragraph 1 of the order dated 29.08.2024 that no one represents the respondent no. 4 in as much as no notice was issued to the respondent no. 4, yet, the writ petition was disposed of by granting liberty to the appellant to submit a representation and further direction was issued to the Technical Bid Evaluation Committee to consider the same. It is only when the said order was being implemented, the respondent no. 4 came to know about it and the review application was filed to apprise this Court that even if all the documents of the appellant was considered, as per the relevant clauses of the bid document and the clauses of the ITB, the appellant was still disqualified for bidding as the appellant did not submit any document showing that it had work experience in “his own name”, which was a mandatory requirement of the bid document. Accordingly, it was submitted that in the absence of notice to the respondent no. 4, the correct state of affairs could not be brought to the notice of the learned Single Judge, which had led the learned Single Judge to proceed as if the experience of the appellant as a sub-contractor Page No.# 7/21 was indeed a qualification for the appellant to bid in response to the NIT, i.e. e- tender for “Construction of Dedicated Training, Monitoring, Administrative Centre “Swasthya Bhawan” (2B+G+8) Storeys at Sixmile, Guwahati (Assam) involving Civil, MEP Works, External Development Works, Ancillary Buildings and including Operation & Maintenance (O&M) - Tender No. CEB(H&E)/MECH/7/2023/ 35. 15) It was also submitted that in course of the proceeding of Review Petition No.170/2024, it was pointed out before the Court that W.P.(C) No. 4789/2024 involved the same tender, both the matters were tagged together and taken up together for analogous disposal without any objection from the appellant’s side. Accordingly, the learned Single Judge, having held that pursuant to the said order dated 29.08.2024, by which W.P.(C) No. 4034/2024 was allowed, and in compliance of the order, not only the appellant had submitted its representation, but the Technical Bid Evaluation Committee had also taken its decision vide minutes dated 09.09.2024, which was assailed by the appellant by filing W.P.(C) 4789/2024, dismissed the said writ petition on merit as the respondent no. 4 could successfully demonstrate that the appellants did not submit any document to show that they had completed any required construction work, as a contractor “in its own name”, for which the appellants were technically disqualified. 16) It was submitted that the bid/tender document did not contain any clause that FIR lodged against a bidder must be disclosed for being adjudged as a technically qualified bidder. Moreover, it was submitted that the last date of submission of bid was 15.03.2024, while supplementary charge- sheet allegedly implicating the respondent no. 4 was submitted before the learned trial court only on 26.07.2024. Page No.# 8/21 17) In support of his submission, the learned senior counsel for the respondent no. 4 has cited the following cases, viz., (i) Tractor & Farm Equipment Ltd. v. Secretary to the Govt. of Assam, Dept. of Agriculture & Ors., 2004 (1) GLT 117, (ii) Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489, and (iii) N.G. Projects Ltd. v. Vinod Kr. Jain, (2022) 6 SCC 127. 18) Per contra, the learned standing counsel for the PWD has adopted the submission made by the learned senior counsel for respondent nos. 2 and 3, and has further submitted that the contract work in question is sponsored by Japan International Cooperation Agency (JICA for short), which is foreign aid to the project and though the bid was opened on 15.03.2024, contract could not be awarded till date and therefore, any delay in implementation of the project would put to risk the project funding by JICA. It is submitted that the building project, when completed, would house all offices of the State’s Health Department, National Health Mission, etc. and therefore, it is a project of great public importance. 19) In support of his submission, the learned standing counsel for the Health Department has cited the following cases, viz., (i) Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, (ii) Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd. & Another, (2016) 16 SCC 818, (iii) Silppi Constructions Contractors v. Union of India & Anr., (2020) 16 SCC 489, and (iv) N.G. Projects Ltd. v. Vinod Kr. Jain, (2022) 6 SCC 127. Case of the appellant: 20) The case of the appellant in W.P.(C) No. 4034/2024, in brief, was that the appellant had substantially complied with the conditions of being an eligible bidder. But from the minutes of Technical Bid Evaluation Committee Page No.# 9/21 meeting held on 03.08.2024, without affording any opportunity to the appellant, disqualified the appellants from participating in the bid. On 05.08.2024, the Price Bid of the remaining three bidders was opened. The appellants claimed that their price bid was substantially lower than other three bidders. Accordingly, W.P.(C) No. 4034/2024 was filed. 21) Pursuant to the order dated 29.08.2024, passed in W.P.(C) No. 4034/2024, the appellant had submitted its representation dated 02.09.2024. The Technical Bid Evaluation Committee, by its minutes dated 09.09.2024, had rejected the bid of the appellant, inter-alia, on the ground that (i) the appellant should have completed similar works in its own name as clause 2 of the qualification criteria stipulates that and that it did not provide for experience in the form of a sub-contractor; and (ii) the appellant should have completed at least one construction of basement work in its own name and not as a sub- contractor. Accordingly, the appellant was held technically not qualified. 22) The subsequent decision vide aforesaid minutes dated 09.09.2024, was put to challenge by the appellant by filing W.P.(C) No. 4789/2024. Affidavit-in-opposition by the PWD; affidavit-in-opposition by respondent no.4; two affidavits-in-reply by the appellant in the writ petition: 23) The Court is of the considered opinion that no point would be served in extracting the contents of the hereinabove referred affidavits. It would suffice to mention that the respondent nos. 2 to 4 had projected that the bid document contained stipulation that the bidder must show completion of similar works done in its own name and not as a sub-contractor. It would also suffice to mention that the appellants had projected in its affidavits-in-reply that the Page No.# 10/21 similar construction works done by them qualified them to be a technically responsive bidder. Decision and Reasons of the learned Single Judge: 24) As indicated hereinbefore, the learned Single Judge had initially allowed W.P.(C) No. 4034/2024, vide order dated 29.08.2024, by giving liberty to the appellant to submit its representation which was submitted by the appellant. Moreover, as per directions issued vide order dated 29.08.2024, the Technical Bid Evaluation Committee had held its meeting on 09.09.2024, and held the appellant to be technically disqualified for reasons as mentioned in paragraph 21 above. 25) However, in connection with Review Petition No. 170/2024, the learned Single Judge held vide impugned judgment and order dated 28.02.2025, passed in common in Review Petition No. 170/2024 and W.P.(C) 4789/2024, that notice was not issued or served to the respondent no. 4 and therefore, the review petition was allowed and recalled the order dated 29.08.2024, allowing W.P.(C) No. 4034/2024. However, having noticed that the said order dated 29.08.2024, was implemented and the Technical Bid Evaluation Committee by meeting minutes dated 09.09.2024, had held the appellant to be technically disqualified, dismissed W.P.(C) No. 4789/2024. 26) In the decision making process, the learned Single Judge is found to have meticulously dealt with all the issues raised before him. 27) The Court has carefully examined the materials available on record and also considered the submissions advanced on behalf of the appellant and the respondent nos. 2, 3 and 4. The cases cited at the Bar has received due consideration. Page No.# 11/21 28) The decision in connection with the Review Petition No.170/2024, was passed after considering the decision of the Supreme Court of India in the case of (i) Parison Devi v. Sumitri Devi, (1997) 8 SCC 715, (ii) Lily Thomas v. Union of India, 92000) 6 SCC 224, (iii) Kerala State Electricity Board v. Hitech Electrothermics & Hydropower Ltd. & Ors., 92005) 6 SCC 651. 29) The learned senior counsel for the appellant has not even ventured to convince the Court that when the order dated 29.08.2024, by which W.P.(C) No. 4034/2024 was allowed, notice was issued and served on the respondent no.4. Therefore, we concur with the decision by the learned Single Judge to recall the order dated 29.08.2024, by which W.P.(C) No. 4034/2024 was allowed. 30) The disposal of W.P.(C) No. 4034/2024, without service of notice is a mistake which a patent error which ex facie appears on the face of record. Therefore, there is no infirmity in that part of the impugned common judgment and order dated 28.02.2025, by which Review Petition No. 170/2024 was allowed and the order dated 29.08.2024, allowing W.P.(C) No. 4034/2024 was recalled. The submissions to the contrary by the learned senior counsel for the appellants are hereby repelled as it is not acceptable for the Courts to decide a matter where rights of a respondent is materially affected, without issuance of notice on the said concerned party. 31) In this regard, the Court is of the considered opinion that all courts in the Country including this Court would have inherent power to correct such fundamental defect which has crept in an order when it is pointed out before the Court that a lis was decided by it without issuing notice on the respondent who might be affected by the final order. None of the cases cited by the learned senior counsel for the appellants has held to negate such inherent Page No.# 12/21 power of the Court and therefore, there is no necessity for discussing the cases submitted by the learned senior counsel for the appellant and to burden this order with avoidable volume. 32) Thus, two following points of determination arise for decision in this intra-court appeal:- i. Whether the learned Single Judge had committed any error in dismissing W.P.(C) No. 4789/2024; and ii. Whether by recalling the order dated 29.08.2024, passed in W.P.(C) No. 4034/2024, the directions contained therein to permit the appellant to submit a representation and to the Technical Bid Evaluation Committee to take a decision thereon, which had culminated in meeting minutes dated 09.09.2024, to come on record becomes redundant and non est in the eyes of law and rendered the minutes dated 09.09.2024 as redundant. 33) The unhesitant answers to both the said points are emphatically in the negative and against the appellants. The reasons therefor are given hereunder. 34) The Court is unable to accept the submissions by the learned senior counsel for the appellant that this is a case where the learned Single Judge, in exercise of review jurisdiction had taken a decision contrary to the view taken vide order dated 29.08.2024, passed in W.P.(C) No. 4034/2024. The learned Single Judge had only recalled the said order. However, essentially by dismissing W.P.(C) No. 4789/2024, the challenge made by the appellant to the minutes dated 09.09.2024, by the Technical Bid Evaluation Committee was dismissed. There is no denying of the fact that there are two distinct Page No.# 13/21 compartmental parts in the common order. One relates to review. The other relates to challenge made in W.P.(C) 4789/2024. 35) The Court is unable to accept that after the order dated 29.08.2024, passed in W.P.(C) No. 4034/2024, has been acted upon and culminated by decision taken in minutes dated 09.09.2024 by the Technical Bid Evaluation Committee, it could be automatically undone when the order dated 29.08.2024, passed in W.P.(C) No. 4034/2024 is recalled. None of the case law cited by the learned senior counsel for the appellant lays down such a legal preposition. 36) It would be relevant to refer to the case of S. Murali Sundaram (supra), cited by the learned senior counsel for the appellant. In that case, a survey report was the matter of consideration and in the said context, it was held by the Supreme Court of India that once the survey report fell for consideration before the High Court while deciding the main writ petition, thereafter the same could not have been considered again by the High Court while deciding the review petition. There is no quarrel with the said well settled principle of law. But on facts, the said decision is distinguishable from the facts of this case because, while deciding the review petition, the learned Single Judge had not re-decided on any matter. As the parties were duly represented when Review Petition No. 170/2024 and W.P.(C) No. 4789/2024 were both heard together, the learned Single Judge, deemed it fit to dismiss the writ petition, where minutes dated 09.09.2024 was assailed. 37) It is not the projected case of the appellants that any prayer was made to adjourn the hearing in W.P.(C) No. 4789/2024 till review petition was decided. Rather, all sides had duly participated in the hearing. Therefore, after the result of hearing turned out to be against the appellant, it not permissible Page No.# 14/21 for the appellant to turn around and assail the decision in W.P.(C) No. 4789/2024, by projecting as if by recalling the order dated 29.08.2024, passed in W.P.(C) No. 4034/2024, directions contained therein, which had culminated in Minutes dated 09.09.2024 by the Technical Bid Evaluation Committee would be rendered non est or redundant in the eye of law. 38) Thus, the challenge to the Minutes dated 09.09.2024 by the Technical Bid Evaluation Committee, being an independent challenge by the appellant by filing W.P.(C) No. 4789/2024, is found to have been dealt with separately by the learned Single Judge, independent of and unconnected with the decision in Review Petition No. 170/2024. 39) Accordingly, the point no. (ii) in paragraph 32 above is answered by holding that by recalling the order dated 29.08.2024, passed in W.P.(C) No. 4034/2024, the directions contained therein to permit the appellant to submit a representation and to the Technical Bid Evaluation Committee to take a decision thereon, which had culminated in the minutes of meeting dated 09.09.2024 of the Technical Bid Evaluation Committee to come on record did not become redundant and non est in the eyes of law, when the minutes dated 09.09.2024 was separately assailed in W.P.(C) No. 4789/2024. That part of the order dated 29.08.2024 had been acted upon. Therefore, the resultant minutes dated 09.09.2024 cannot be held to be illegal. The recalling of the order dated 29.08.2024 would not render the minutes dated 09.09.2024 illegal or void. 40) The point of determination no. (i) is taken up now. 41) The learned Single Judge had held, amongst others, that the tendering authority, who had authored the tender documents are the best judge for interpreting the tender documents. In arriving at the said decision, the Page No.# 15/21 learned Single Judge has referred to the decision of the Supreme Court of India in the case of (i) Ramanna Dayaram Shetty v. The International Airport Authority of India & Ors., (1979) 3 SCC 489, (ii) Vidharbha Irrigation Development Corporation & Ors., v. Anuj Kumar Agarwala & Ors., (2020) 17 SCC 577, (iii) G.J. Fernandez v. State of Karnataka & Ors., (1990) 2 SCC 488, (iv) Silppi Constructions Contractors v. Union of India & Ors., (2020) 16 SCC 489, (v) M/s. N.G. Projects Ltd. v. M/s. Vinod Kumar Jain, (2022) 6 SCC 127. The learned senior counsel for the appellant has not been able to convince the Court as to why and how the reliance on ratio laid down in the said cases by the learned Single Judge was erroneous. Thus, no point would be served in extracting the contents of 32 to 40 of the impugned decision, where these cases have been elaborately discussed. We fully concur with the observations made by the learned Single Judge, based on the well settled legal propositions as laid down in these leading judgments. 42) The Court is also inclined to hold that no illegality or perversity was committed by the learned Single Judge in refusing to interpret the bidding document as regards the clause prescribing “bidder” “in his own name”, which is indeed technical and should be best left to the decision of the concerned author of the ITT/NIT. In this regard, the reliance by the learned Single Judge in the case of JARPAL JPW-DMC v. Union of India, (2024) 0 Supreme(Gau) 1562, also appears to be appropriate, where again it has been held that the authority inviting tender is the best interpreter of the tender. 43) The financial bid of the appellant was never opened. Therefore, it is immaterial whether the price quoted by the appellant was lower than the three other bidders. The fact that the appellant was adjudged to be technically non-responsive vide minutes dated 09.09.2024, is sufficient for the tendering Page No.# 16/21 authority to refuse to open the financial bid of the appellant. Therefore, the learned Single Judge is found to have rightly placed reliance on the decision of the Supreme Court of India in the case of Air India Limited v. Cochin International Airport Ltd. (2000) 2 SCC 617, wherein it has been held by the Supreme Court of India that price need not always be the sole criteria for awarding contracts. 44) Moreover, in the case of Maa Binda Express Carrier & Anr. Vs. North East Frontier Railway & Ors., (2014) 3 SCC 760, it was held by the Supreme Court of India that bidders participating in the tender process cannot insist that their bids/ tenders should be accepted simply because a bid is highest or lowest. 45) Reference may also be made to the case of State of Tripura v. Ramendra Nath Dey, (2000) 3 GLT 214: (2001) 1 GLR 54: (2000) 0 Supreme(Gau) 280, wherein this Court had held that the judgment of the Single Judge should be set aside or quashed only when there is patent error on the face of the record or the judgment is against the established or well settled principle of law. 46) In the case of Starline Agency v. Nabajit Das, 2011 (1) GLT 710: (2011) 5 GLR 186: (2011) 0 Supreme(Gau) 149, this Court has held that if two reasonable and logical views are possible, the view adopted by the Single Judge should normally be allowed to prevail. In this regard, we may also refer to the decision of this Court in the case of Tractor & Farm Equipment Ltd. v. Secretary to the Govt. of Assam, Dept. of Agriculture, 2004 (1) GLT 117, which was followed in the case of North Eastern Regional Institute of Science and Technology v. Prabhanjan Kumar Pranav, (2018) 5 GLR 572: (2017) 0 Supreme(Gau) 1509. Page No.# 17/21 47) In the case of Assam State Electricity Board V. Sri Surya Kanta Roy, (1994) 1 GLR 383: (1993) 0 Supreme(Gau) 190, this Court has held that the appellate Court will not interfere with the discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversity or where the court has ignored the settled principles of law. 48) In the light of the discussions above, the Court is of the well considered opinion that this is not a case where the learned Single Judge has failed to appreciate any pleadings or documents produced before the Court. In spite of lengthy submissions by the learned senior counsel for the appellants, it would not be demonstrated that the discretion exercised by the learned Single Judge was hit by perversity or patent illegality. The decision of the learned Single Judge is not shown to be arbitrary or capricious or that any well settled principles of law was ignored. Thus, the impugned judgment and order is not found to suffer from any patent illegality. 49) Thus, the appellant has failed to demonstrate that the learned Single Judge has committed any perversity in dismissing W.P.(C) 4789/2024, while allowing Review Petition No. 170/2024. 50) Thus, this Appellate Bench is also of the considered opinion that the disqualification of the appellant vide Minutes of Meeting held on 09.09.2024, by the Technical Bid Evaluation Committee was rightly not interfered with by the learned Single Judge. 51) In the case of Sam Built Well (P) Ltd. Vs. Deepak Builders, (2018) 2 SCC 176, the Supreme Court of India has held that not having found mala fides or perversity in the technical experts report, the principle of judicial Page No.# 18/21 restraint kicks in and any appreciation by the Court itself of technical evaluation, best left to technical experts, would be outside its ken. In the said case, it was also held that the learned Single Judge was correct in his reliance on the experts’ reports and the Division Bench, in setting aside the aforesaid judgment, has clearly gone outside the bounds of judicial review. This legal proposition is applicable in this case. 52) It would be apposite to refer to the decision of the Supreme Court of India in the case of N. Ramachandra Reddy v. State of Telengana, (2020) 16 SCC 478: AIR 2019 SC 4182, wherein it was held that while considering intra- court appeal, unless the appellate Bench concludes that the findings of Single Judge is perverse, it shall not disturb the same. 53) In the case of Central Coalfields Ltd. Vs. SLL-SML (Joint Venture), (2016) 8 SCC 622, the Supreme Court of India has held that whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. It was further held that even if the term is essential, the employer has the inherent authority to deviate from it provided deviation is made applicable to all bidders and potential bidders as held in Ramanna Dayaram Shetty (supra). However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. It was held that the lawfulness of the decision can be questioned on very limited grounds and the soundness of the decision cannot be questioned, otherwise the Court would be taking over the function of tender issuing authority, which it cannot. 54) In the case of Jagdish Mandal Vs. State of Orissa, (2007) 14 SCC 517, it was held by the Supreme Court of India that evaluating tenders and awarding contracts are essentially commercial functions and thus, the principles of equity and natural justice stay at a distance. If the decision relating to award Page No.# 19/21 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 succor to thousands and millions and may increase the project cost manifold. 55) In the case of Jagdish Mandal (supra), it was further held that 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 (ii) 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”; and (iii) whether public interest is affected? It was held that if the answers are in the negative, there should be no interference under Article 226 of the Constitution of India. Similar view was also expressed by the Supreme Court of India in the case of National High Speed Rail Corporation Ltd. v. Montecarlo Limited & Anr., (2022) 6 SCC 401. 56) In respect of this contract, the learned standing counsel for the respondent nos. 2 and 3 had submitted that the fund for the project is financed Page No.# 20/21 by JICA. Therefore, public interest is of paramount importance in this case as any delay in implementation of the construction project may jeopardize public interest. 57) In light of the discussions above, the Court is inclined to hold that the appellant has failed to make out a case for interference with the common judgment and order dated 28.02.2025, passed by the learned Single Judge, thereby (i) allowing Review Petition No. 170/2024 – Tribeni Construction Ltd. v. M/s. Badri Rai And Company & 3 others [arising out of W.P.(C) No. 4034/2024], and (ii) dismissing W.P.(C) 4789/2024 - M/s. Badri Rai And Company v. The State of Assam & 3 others. 58) The decision making process which had culminated in minutes dated 09.09.2024, of the Technical Bid Evaluation Committee, was triggered by order dated 29.08.2024, allowing W.P.(C) No. 4034/2024. The decision was taken before W.P.(C) No. 4789/2024 was filed. Therefore, the effect of order dated 29.08.2024, which had culminated in minutes dated 09.09.2024, cannot be undone even if the said order dated 29.08.2024 was recalled. 59) In light of the various cases discussed herein before, the cases cited by the learned senior counsel for the appellants would have no application under the distinguishable facts of this case and therefore, this judgment and order is not being burdened with elaborate discussion thereon. 60) Resultantly, this appeal fails and is hereby dismissed at the admission stage without issuance of notice on the respondents. 61) In the case of Raghubir Singh v. State of Rajasthan, (2019) 17 SCC 408, the Supreme Court of India has held that it was incumbent upon Division Bench to deal with all issues urged and record its finding. Therefore, Page No.# 21/21 before parting with the records, it is clarified that despite the fact that the present appeal has not been admitted for hearing, all the points urged by the learned senior counsel for the appellant had to be considered. 62) In terms of observations made in paragraph 6 above, the appellant shall deposit the requisite Court fees, failing which consequences, as stated, would follow. JUDGE JUDGE Comparing Assistant