Page No.# 1/18 GAHC010226392025 2026:GAU-AS:12168 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6864/2025 ASHAJYOT MERCANTILE PRIVATE LIMITED AND ANR A PRIVATE LIMITED COMPANY WITHIN THE MEANING OF COMPANIES ACT 1956 / 2013 HAVING ITS REGISTERED OFFICE AT FLAT NO 2 BLOCK A FIRST FLOOR AIDUN BUILDING JOHN CASTRO LANE DHOBI TALAO J S SHETH ROAD MUMBAI- 400002 REPRESENTED BY ITS AUTHORISED REPRESENTATIVE ASHUTOSH PANDEY SON OF RAJENDRA PRASHAD BADAGAON NIBHAPUR P.O. NIBHAPUR DIST. JAUNPUR PIN- 222204 UTTAR PRADESH. 2: NOVITATE PARTNERS LLP A LIMITED LIABILITY PARTNERSHIP WITHIN THE MEANING OF LIMITED LIABILITY PARTNERSHIP ACT 2008 HAVING ITS REGISTERED OFFICE AT 4TH FLOOR MANU MANSION 16 SHAHID BHAGAT SINGH ROAD FORT MUMBAI 400001 REPRESENTED BY ITS AUTHORISED REPRESENTATIVE ASHUTOSH PANDEY SON OF RAJENDRA PRASHAD BADAGAON NIBHAPUR P.O. NIBHAPUR DIST. JAUNPUR PIN- 222204 UTTAR PRADESH. Page No.# 2/18 VERSUS THE ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD. (AIDC LTD.) AND 2 ORS. HAVING OFFICE AT R G BARUAH ROAD GUWAHATI-781024 REPRESENTED BY ITS MANAGING DIRECTOR. 2:MSTC LIMITED A GOVERNMENT OF INDIA ENTERPRISE HAVING ITS BRANCH OFFICE AT BSNL EXCHANGE BUILDING BELTOLA- BAISISTHA ROAD WIRELESS RANI BAGAN GUWAHATI- 781028 REPRESENTED BY ITS BRANCH MANAGER. 3:EDIFICE ENGINEERING HAVING ITS REGISTERED OFFICE AT 123 124 NEW APOLLO INDUSTRIAL ESTATE PREMISES CHSL AWADH NARAYAN TIWARI MARG MUMBAI- 400069 REPRESENTED BY ITS DIRECTOR SRI JIGAR K CHHEDA SON OF KANTI CHHEDA RESIDENT OF 2/64 VARMA NAGAR OLD NAGARDAS ROAD ANDHERI-EAST MUMBAI IN THE DISTRICT OF MUMBAI MAHARASHTRA PIN- 400069. ------------ Advocate for the Appellant :Mr. D. Das, Sr. Advocate. Mr. S. Das Advocate for the respondents :Mr. D. Saikia, Advocate. General, Mr. D. Deka, S/C, AIDC. Mr. A. Kakoty, Advocate Ms. G. Goswami, Sr. Advocate for Respondent No.3. Date on which judgment was reserved : 02.06.2026 Date of pronouncement of judgment : 25.08.2026 Page No.# 3/18 Whether the pronouncement is of the : NA operative part of the judgment? Whether the full judgment has been : Yes pronounced? BEFORE HONOURABLE MR. JUSTICE ANJAN MONI KALITA JUDGMENT & ORDER (CAV) Heard Mr. D. Das, learned Senior Counsel, assisted by Mr.S. Das, learned Counsel for the Petitioners. Also heard Mr. D. Saikia, learned Advocate General assisted by Mr. D. Deka, learned Standing Counsel, AIDC, for Respondent No. 1; Mr. A. Kataki for Respondent No. 2 and Ms. G. Goswami, learned Senior Counsel, assisted by Mr. R. Das for Respondent No. 3. 2. The Petitioner No. 1 is an existing company and Petitioner No. 2 is a Limited Liability Partnership (LLP).Petitioner Nos. 1 and 2 are both entities owned and controlled by a group having commonmanagement and therefore, the instant writ petition has been filed by Petitioner Nos. 1 and 2 jointly, agitating the same issue. 3. The Summary of the facts leading to filing of the instant writ petition are as follows: 3.1. A tender was floated by Respondents, being Auction No. MSTC/GHY/Assam Industrial Development Corporation Limited/5/Guwahati/25-26/25321, published by Detailed Auction Page No.# 4/18 Catalogue dated 07.08.2025 for demolition and disposal of plant and machinery and other structures of the defunct Cachar Paper Mill (CPM), located in the Cachar District of Assam. The Petitioners, being desirous of participating in the said auction process and having satisfied all requirements but without the OHSAS Certificate, possession of which is a pre-qualification, on 03.09.2025, Petitioner No. 1, through one of its directors, namely, Shri Chirag Ashok Nawal, who is also a partner in Petitioner No. 2 LLP, made a written representation before the Respondents requesting the Respondents to permit the entities under the SR Group, which otherwise fulfilled the eligibility criteria, to participate in the auction. The Petitioner No. 1, in the aforesaid representation, mentioned that the entities under the SR Group had:(a) Average Annual Financial Turnover of more than ₹30 Crores and (b) Experience in demolition and dismantling of plants of more than ₹100 Crores. So, Petitioner No. 1 and 2, through its common director/partner, in unequivocal terms, stated that there is no requirement of any OHSAS certification for any tender concerning dismantling jobs. However, Petitioner No. 1, in the said representation, also provided an undertaking that if the Petitioners were awarded the contract, the Petitioners would undertake the dismantling work only by a contractor who possesses an OHSAS certificate. 3.2. As per the e-auction catalogue, the Respondents were to respond to the queries till 03.09.2025 before 5:00 PM. Thereafter, the prospective bidders were required to submit Page No.# 5/18 documents along with EMD on or before the scheduled date for commencement of the e-auction at 10:00 AM, with a closing time at 15:30 PM on the same date. The Petitioners on 03.09.2025 itself, about 5:27 PM, made a query in the form of a representation to the Respondents, but the same remained unanswered. As the Respondents did not respond to Petitioners' queries, the Petitioner No. 1, on 13.09.2025 again reminded the Respondents and requested for a response. However, the same reminder also did not get any response from the Respondents. 3.3. The Petitioners came to learn that one writ petition being WP(C) No. 5859 of 2025 has been filed by one of the bidders, wherein, by an order dated 21.11.2025, this Court raised a query to examine the sanctity attached to the Minutes of the Meeting dated 24.09.2025. It transpired that till date, the tender has not been awarded to the H-1 bidder. Accordingly, the Petitioners have decided to challenge the sanctity of the entire auction process being Auction No. MSTC/GHY/Assam Industrial Development Corporation Limited/5/Guwahati/25-26/25321and the arbitrary requirement of the OHSAS certificate, which has now been replaced by ISO 45001:2018 certificate (OHSAS certificate). 4. The Petitioners, by filing the instant writ petition, amongst others, prayed for issuance of a declaration that the requirement of OHSAS certificate, as stipulated in the pre-qualification eligibility criteria for Auction No. MSTC/Guwahati/GHO/Assam Industrial Page No.# 6/18 Development Corporation Limited/5/Guwahati/25-26/25321 is arbitrary, unreasonableand violative of Article 14 of the Constitution of India and hence, liable to be set aside. It has also prayed for setting aside of the entire tender process of Auction No.MSTC/Guwahati/GHO/Assam Industrial Development Corporation Limited/5/Guwahati/25-26/25321; It has prayed for a direction to commence the auction process de novo by issuing a fresh auction notice for auction of plant and machinery, demolition, disposal and clearing of all the buildings and machinery of Cachar Paper Mill. 5. The Respondent No. 1 has contested the writ petition by filing an Affidavit-in-Opposition, wherein a stand has been taken on behalf of the Respondent No.1 that the writ petition having been filed on 01.12.2025, i.e. after one and half monthsof the tender process been finalized on 13.10.2025, the Writ Petitioners would be barred from questioning the tender conditions, more so, when they have not participated in the tender process and has remained fence-sitters. It is contended by the Respondent No.1 that Writ Petitioners not having challenged the tender conditions during the tender process or at the very inception of the same process, they would be estopped from challenging the same at a belated stage due to the fact that tender process was initiated on 07.08.2025 and the same had already been concluded by 13.10.2025. It is contended by the Respondent No.1 that the Petitioners by their own admission stated that they did not meet the eligibility criterion of having a valid OHSAS certificate on the date of closure of submission of bids. Page No.# 7/18 6. It is contended that the Petitioners did not participate in the tender process and a representation dated 03.09.2025 was filed after the query lines were closed as per the NIT conditions at 5:00 PM on 03.09.2025. Therefore, the Respondent No.1 is not obliged to answer any query after the closure of the query lines on 03.09.2025. It is contended that none of the pre-qualification eligibility criteria was tailor-made as alleged by the Petitioners. With regard to OHSAS certificate, it is stated that OHSAS certificate, ISO-45001:2018 and OHSMS certificate of safety forming the same genus, the Respondents have allowed the bidders who possessed either of the certificates to participate. The Respondent No. 1 contended that there was no arbitrary tailor-made condition which is opposed to the state policy as alleged by the Petitioners. It is contended that the instant tender process has been conducted, evaluated, and completed in compliance with the prescribed procedure. The Petitioners, being a non-participant and fence-sitters, cannot be permitted to derail the completed auction. 7. An Affidavit-in-Reply to the Affidavit-in-Opposition of Respondent No.1 has been filed by the Petitioners, wherein, the Petitioners have reiterated the statements and submissions made in the Writ Petition. The Petitioners reiterated that due to the lack of clarity in the pre- qualification eligibility criteria and lack of clarity with regards to the OHSAS Certificate, prevented the Petitioners from participating in the tender process initiated by NIT dated 07.08.2025. It is also contended that the Respondent No.3 has also failed to meet the pre-qualification criterion as they cannot be in possession of OHSAS certificate as the Page No.# 8/18 same has become obsolete, though, they might possess the OHSMS certificate, which is not required in terms of the pre-qualification criterion mentioned in the Auction Document. 8. Mr. D. Das, learned Senior Counsel appearing for the Petitioners submits that the Auction Catalogue reveals that the auction is a highvalue auction, however, the eligibility criteria stipulated in the auction, transpired that the auction contained very stringent eligibility criteria which have excluded many experienced and qualified bidders from participating in the auction process. He submits that Petitioners are into the business of demolition and disposal of plant and machinery and other structures for several decades, but only due to the stringent condition of safety requirement, i.e. the requirement of OHSAS certificate, the Petitioners are deprived of participating in the auction process. He submits that in spite of not possessing the required certificate as contemplated in the Auction Document, the Petitioners had written and submitted a representation on 03.09.2025 to the Respondent no. 1, however, the same remained un-responded. He submits that the Petitioners are part of a large group and they are capable of performing the scope of work as mentioned in the Auction Document engaging some contractors who shall have the required OHSAS certificate. He submits that the action of theRespondent No. 1 in not responding to the query which has been made by the Petitioners through its representation dated 03.09.2025, only because it was submitted 27 (Twenty Seven) minutes after the closure of the query line, is not at all legal and the action is arbitrary and whimsical on the part of Respondent No. 1. He submits that the object of the Page No.# 9/18 tender is to have the participation of maximum bidders, so that, the State Exchequer can gain from the commercial contract. However, in the instant contract, he submits that the Respondent No.1 failed to understand and appreciate the object of the auction and thereby, curtailed the participation of many eligible bidders.He submits that there is no requirement of any OHSAS certificate for any such tender concerning dismantling jobs. He submits that the Petitioners are otherwise qualified in all respects but due to the non-possession of OHSAS certificate, they could not participate in the bid. He submits that the pre-qualification criterion of requirement of OHSAS certificate is very stringent and has been tailor-made to favour only certain bidders. Accordingly, he submits that the pre-qualification condition is stringent, vague and does not have any rational nexus with the object of the auction and therefore, the instant tender process should be cancelled and a new process for the auction should be initiated by the Respondent No. 1. He submits that the conditions of the Auction Document being restrictive in nature, the same should be set aside and a new bid document should be issued by Respondent No.1 for processing a new auction. In support of his submission, the learned Senior Counsel has referred to the case of Vinishma Technologies Pvt. Ltd.-vs-State of Chattisgarh and Another; reported in 2025 SCC OnLine SC 2119, wherein the Hon’ble Apex Court held that the State while enjoys the freedom to prescribe the conditions in the tender, cannot exercise that power in a manner that infringes upon the constitutional guarantees, by closing the market to outsiders without just cause. The Doctrine of Level Playing Field requires that Page No.# 10/18 gates of competition be open to all who are equally placed. Paragraph 20 of the aforesaid judgment being relevant is quoted herein below: “20 Such a restriction, therefore, cannot be justified as reasonable within the meaning of 19(6) of the Constitution of India. The State while it enjoys the freedom to prescribe the conditions in the tender, cannot exercise that power in a manner that infringes upon constitutional guarantees, by closing the market to outsiders without just cause. The doctrine of level playing field requires that gates of competition be opened to all who are equally placed. The impugned tender condition excludes the competent and experienced suppliers, who may have executed contracts of far greater magnitude in other States or for the Central Government departments, from participating in the tender and has the impact of promoting cartelisation. The impugned condition operates as a closed door to outsiders and restricts the wider participation of bidders and restricts competition. The impugned tender condition, therefore, is violative of Article 14 and also offends Article 19 (1) (g) of the Constitution of India”. 9. On the other hand, Mr. D. Saikia, learned Advocate General appearing for Respondent No.1 submits that there is no stringent condition in the Auction Document. He submits that the pre- qualification criterion has been included by Respondent No.1 after looking into the scope of the work which contains hazardous nature of work and safety being the ultimate concern, a bidder is required to possess experience in handling such works and therefore, a certification to that extent is required. He submits that this condition is applicable to all the bidders and sufficient numbers of bidders Page No.# 11/18 possessing the same have participated in the bid process. He submits that the Petitioners have not participated in the bidding process and they have no rights, whatsoever, to challenge the conditions of the auction at a belated stage when the auction has already been completed. Accordingly, he submits that the instant writ petition should be dismissed at once. 10. Ms. G. Goswami, learned Senior Counsel appearing for Respondent No.3 has supported the submissions made by the learned Advocate General and has submitted that the Petitioners do not have any locus standi to challenge the auction process as they did not participate in the auction at the first place. 11. It is seen that thePetitioners were nowhere in the picture in the whole auction process until 03.09.2025, whereon at 17:27 Hours, one Mr. Chirag Nawal of SR Group (Petitioners’ Group) wrote an e-mail to the Respondent No. 1. It is seen from the e-mail that they have mentioned that they are in the business of dismantling, demolition, and disposal of plant and machinery since the last 50 years and have completed more than 30 projects worth over Rs. 600 crores in the last two decades, which includes two projects having value more than Rs. 100 crores. It was mentioned that they fulfilled the eligibility criteria of: (i) Average annual financial turnover and (ii) Experience in demolition and dismantling of more than Rs. 100 crores. However, they do not have OHSAS certificate as it is not required in their field and even 1,000+ tenders of same nature of work do not require it, including tenders of Central Government, State Government, PSUs, Page No.# 12/18 etc. Therefore, they requested the Respondent No. 1 to allow them to participate in the auction. It was also mentioned that if they are declared H-1, they will dismantle the plant and machinery only with a contractor who has OHSAS certificate. Therefore, admittedly, the Petitioners did not possess any OHSAS certificate even at the time of writing the aforesaid e-mail dated 03.09.2025. It is also seen that in terms of the auction document, the query line has been closed at 17:00 Hours on 03.09.2025. Therefore, the e-mail/representation sent by the Petitioners did not reach the Respondent No. 1 within the stipulated time as mentioned in the Auction Document. It is the stand of the Respondent No. 1 that in view of non-receipt of the query/e- mail/representation of the Petitioners within the stipulated time, the Respondent No. 1 could not have responded to that, as the same would have violated the terms and conditions of the Auction Document. 12. It is seen that the Petitioners have not participated in the auction process. They remained inactive until one and a half months of conclusion of the auction process by evaluation of the price bids. They have approached this Court, admittedly, on realizing the fact that one of the bidders had approached this Court and the whole auction process is sub-judice; and no one has been allotted the work till date. So, the Petitioners are taking a chance to cancel the whole auction process and thereby, trying their luck to get an opportunity to participate in the auction process if the instant auction process is cancelled. Page No.# 13/18 13. The Hon’ble Apex Court, in the caseof National Highways Authority of India vs. Gwalior-Jhansi Expressway Limited, reported in (2018) 8 SCC 243, has categorically held that a non- participant in a tender process cannot be allowed to challenge the validity of the tender documents. Paragraph 20 of the aforesaid case being relevant, the same is extracted hereinbelow: “20 While considering the relief claimed by the respondent (claimant), the same should have been tested on the touchstone of the principle governing the tender process, especially when the validity of the tender document has not been put in issue or challenged before any competent forum. Going by the terms and conditions in the tender documents, as already alluded to in para 10 above, there is no tittle of doubt that the right of the claimant (respondent) to match the bid of L-1 or to exercise ROFR would come into play only if the respondent was to participate in the tender process pursuant to the notice inviting tenders from the interested parties. The objective of tender process is not only to adhere to a transparent mechanism but to encourage competition and give equal opportunity to all tenderers with the end result of getting a fair offer or value for money. The plain wording of the eligibility clause in the tender documents and the incidental stipulations make it explicit that the respondent was required to participate in Page No.# 14/18 the tender process by submitting its sealed bid (technical and financial). The fact that a deeming clause has been provided in the tender document that if the respondent was to participate in the bidding process, it shall be deemed to fulfil all the requirements of the tender Clauses 3 to 6 of RFP, being the existing concessionaire of the project, does not exempt the respondent from participating in the tender process; rather the tenor of the terms of the documents made it obligatory for the respondent to participate in the tender process to be considered as a responsive bidder, along with others. Having failed to participate in the tender process and, more so, despite the express terms in the tender documents, validity whereof has not been challenged, the respondent cannot be heard to contend that it had acquired any right whatsoever. Only the entities who participate in the tender process pursuant to a tender notice can be allowed to make grievances about the non- fulfilment or breach of any of the terms and conditions of the tender documents concerned. The respondent who chose to stay away from the tender process, cannot be heard to whittle down, in any manner, the rights of the eligible bidders who had participated in the tender process on the basis of the written and express terms and conditions. At the culmination of the tender process, if the respondent had not participated, in law, the offer Page No.# 15/18 submitted by the eligible bidders is required to be considered on the basis of the stated terms and conditions. Thus, if the claim of the respondent was to be strictly adjudged on the basis of the terms and conditions specified in the subject tender document, the respondent has no case whatsoever”. 14. The law regarding Government contracts or auctions and nature and scope of judicial review is well settled in a string of judgements by Hon’ble Apex Court. In the case of M/s Michigan Rubber (I) Ltd-vs-State of Karnataka and Ors, reported in (2012) 8 SCC 216, the Hon’ble Apex Court held as follows: "23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or Page No.# 16/18 unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government”. 15. Similarly, in the case of Tata Cellular-vs-Union of India, reported in (1994) 6SCC 651, the Hon’ble Apex Court emphasised the need to find a right balance between administrative discretion to decide the matters on the one hand, and the need to remedy any unfairness on the other, and observed as follows: “94.(1) The modern trend points to judicial restraint in Page No.# 17/18 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. (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." 16. In view of the aforesaid settled laws by the Hon’ble Apex Court, this Court does not feel any need of going deeper into the facts and issues of the writ petition. This Court is of the considered opinion that Page No.# 18/18 the Petitioners being non-participants in the auction process and having approached this Court in a belated manner, cannot be allowed to agitate about the pre-qualification condition mentioned in the Auction Document and other terms and conditions, at this stage. 17. Accordingly, the instant writ petition is found to be bereft of any merit and the same is dismissed. 18. No order as to costs. JUDGE Comparing Assistant