1 / 17 CGHC010356492026 2026:CGHC:40325-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 4662 of 2026 M/s Sarvamangla Infrabuild Private Limited A Company Incorporated Under The Companies Act, Having Its Registered/ Official Address At Plot No. 393/A, Indira Commercial And Residential Complex, Transport Nagar, Korba, Chhattisgarh 495677, Through Its Director Shri Deepak Agrawal, S/o Shri S.S. Agrawal Aged 46 Years, R/o Navrang Kunj, Sitamani Main Road, Ward No. 7 Korba Town, Korba District - Korba Chhattisgarh ... Petitioner(s) versus 1 - N T P C Limited A Government Enterprises, Through Its Managing Director, Having Its Registered Office Situated At N T P C Bhawan, Scope Complex, 7, Institutional Area, Lodhi Road, New Delhi 110003 2 - The General Manager (Contract And Materials) Contract Department, Unified Shared Service Centre, C.P.G.-I, Plot No. 87, Sector-24, Atal Nagar, Naya Raipur, Raipur, Chhattisgarh 492101 ... Respondent(s) For Petitioner : Mr. Vikram Sharma, Advocate For Respondents : Mr. Prafull Bharat, Senior Advocate with Mr. Anuroop Panda, Advocate Digitally signed by PRAVEEN KUMAR SINHA Date: 2026.09.21 11:04:13 +0530 2 / 17 D.B. : Hon'ble Shri Justice Parth Prateem Sahu & Ho n'ble Smt. Justice Sushma Sawant Order on Board 15/09/2026 Per Parth Prateem Sahu, J. 1. Petitioner who submitted his application pursuant to Notice Inviting Tender (NIT) in Government E- Market Place (GeM) Portal is aggrieved with the alleged action on the part of respondents of not providing an opportunity of offering the rate matching with L-1 bidder and further to extend the said opportunity to L-3 bidder. 2. Facts relevant for disposal of this writ petition are that, petitioner is a private limited company incorporated under the provision of the Companies Act which is engaged in the business of civil construction, road and highway works, ash transportation and allied work for thermal power plant across country. Respondent No.2 floated tender bearing NIT Bid No. GEM/2026/B/7867052 dated 04.08.2026 for work of “wasteland development of low-lying areas at acquired land of NTPC – Lara using fly ash from Silo-pond ash of Lara STPP”. Value of the tender was approximately Rs.75,81,11,021/- (rupees seventy five crores eighty one lakh eleven thousand and twenty one only) inclusive of goods and service tax. Petitioner submitted his bid along with tender document and upon opening of financial bid, petitioner was declared L-2 bidder. According to the terms/clause of tender, petitioner was entitled to be offered opportunity to match the finalized rate of L-1 bidder so as to be awarded the balance 3 / 17 50% of the work/tender quantity. The opportunity was given to L-3 bidder. Aggrieved with which this writ petition is filed seeking following reliefs: “10.1) That this Hon'ble Court may graciously be pleased to direct the Respondent authorities to accept and give effect to the Petitioner's unequivocal and unconditional communication dated 07.09.2026 (ANNEXURE P/8) and, accordingly, allot to the Petitioner the remaining fifty percent (50%) of the tendered quantity under Bid No.GEM/2026/B/7867052, without treating the Petitioner's failure to respond to the email dated 30.08.2026 by 02.09.2026 as a "deemed refusal", in the interest of justice. 10.2) Any other relief, as this Hon'ble Court may deem just and proper in the facts and circumstances of the case, and in the interest of justice.” 3. Learned counsel for the petitioner submits that petitioner is L-2 bidder and is Medium Scale Enterprise (MSE) and the rate mentioned by the petitioner in the financial bid is falling within L-1 + 15 % range. Petitioner was declared as L-2 bidder upon opening of financial bid. Respondent has proceeded to offer L-3 bidder to match with the L-1 finalized rate, as the petitioner failed to respond to e-mail and considering this as “deemed refusal”, is per se arbitrary and illegal. He contended that neither of the clauses of the tender incorporates the Evaluation Criteria with MSE Preference for Cases with Splitting Clause, prescribing time limit for L-2 bidder’s response or provides that non-response within an administratively fixed period shall amount to refusal. He contended that the procedure adopted by respondent is unfair because petitioner was never informed that failure to respond within the period stated in the e-mail would result in forfeiture of L-2 opportunity nor was any reminder, show cause notice or 4 / 17 opportunity of hearing was given to petitioner by the respondent before proceeding to L-3 bidder. He also contended that the evaluation and splitting criteria requires respondents to first give to L-2 bidder a real and effective opportunity to match the finalized L-1 rate. Respondent also failed to consider that petitioner had earlier conveyed its willingness and immediately after learning of e-mail dated 30.08.2026/coming to its knowledge of the e-mail dated 30.08.2026 submitted its unconditional written acceptance on 07.09.2020. In these circumstances, the purpose of of relevant tender provision stood fully satisfied and respondent could not reject the petitioner’s acceptance merely on technical ground not provided in the tender. Petitioner was regularly visiting their offices and project site in connection with another running contract and had orally informed the concerned official of its L-2 status and willingness to execute the remaining 50% quantity of wok at L-1 rate. He also contended that respondents authority being the public authority ought to have acted only on disclosed tender conditions and apply the same standards fairly to all bidders. By adding an unwritten deadline related consequences after completion of the evaluation process and using it to bypass the petitioner respondents have acted arbitrary and in contravention of the provision under Article 14 of the Constitution of India. He contended that no formal allotment has yet been issued and no third party right has been created in favour of L-3 bidder and therefore respondents could have corrected their decision, and ought to have considered the petitioner’s status without disturbing any concluded contract. He also contended that respondent could have moved to L-3 bidder only when L-2 bidder fails to match the evaluated or negotiated L-1 price. Petitioner expressly and unconditionally 5 / 17 agreed to match the finalized L-1 rate and is willing to execute work at the same finalized rate. 4. Per contra, learned counsel for respondents would oppose the submission of learned counsel fo the petitioner and would submit that the entire tender proceeding have been initiated by the Government E-Market place agency. That agency has not been impleaded as party respondent. He contended that online tender was floated and the contractor have submitted their bids online. According to documents available in GeM portal it is apparent that there is clause under head of Evaluation Criteria with MSE Preference for Cases with Splitting Clause. He submits that petitioner as also L-3 are MSE and therefore as per splitting clause after opening the financial bid, contract has to be finalized among a maximum of two bidders as per the splitting and evaluation criteria forming part of tender document. He contended that according to clause under tender document, L-1 bidder shall be awarded maximum of 50% of the tendered BOQ quantity i.e. another 50% of the tendered quantity shall be awarded to another agency as per modalities mentioned therein. He submits that it is not in dispute that if the top ranked L-2 MSE bidder accepts to match the finalized ‘premium/discount’ of L-1 bidder, preference in ranking shall be provided to the top ranked MSE bidder and they shall be considered for award of 50% of tendered quantity. After opening of financial bid, e-mail was issued by the agency (GEM) to petitioner on 30th August 2026 at about 10:51 am and requested the petitioner to accept or reject proposal by 02.09.2026 of matching with L-1 price/negotiated L-1 price for this bid. Petitioner has not replied or responded to mail within time specified. In GeM portal itself it is mentioned that buyer can request for L-1 price match 6 / 17 with L-2/L-3 sellers and it is to be completed within 3 days time framed from the request date. Petitioner was requested to submit the proposal for accepting L-1 price/negotiated L-1 price but he failed to respond within the specified time. He next contended that upon failure of petitioner to respond to e-mail, the offer made by L-3 has been accepted and finalized. However, no work order is issued to L-3 only because it came to knowledge of respondents that a writ petition is filed by petitioner. He also contended that in para-8.11 of the petition, petitioner himself has pleaded that petitioner discovered that, e- mail inadvertently escaped the attention of staff member entrusted with handling such correspondence. He submits that from the pleading as made in para 8.11 it is apparent that the e-mail was received in the e-mail account of petitioner and therefor he would not be permitted to take benefit of his own wrong. In support of his submission he places reliance upon decision of Hon’ble Supreme Court in case of W.B. State Electricity Board Vs. Patel Engineering Co.Ltd. And Ors. reported in (2001) 2 SCC 451. He also contended that no equity lies in favour of petitioner . Petitioner has not impleaded the agency floated tender i.e. GeM and the L-3 bidder whose offer was accepted, as party respondent. 5. We have heard learned counsel for the parties and also perused the documents available on record. 6. The undisputed facts are that petitioner along with others submitted tender documents and the bid, pursuant to tender notification issued by the GeM (Govt. E-market place). Tender was floated online and undisputedly bids were also submitted online by the parties. In the tender document under the head of “Evaluation Criteria with MSE Preference 7 / 17 for Cases with Splitting Clause” there is mentioned of 6 clauses which reads thus: “(1) The subject destination-based contract will be finalized among a maximum of Two (02) Bidders as per below mentioned splitting and evaluation criteria. (2) The tendered quantity will be split amongst Two (02) Agencies. The L-1 bidder shall be awarded a maximum of 50% of the tendered BOQ quantity i.e., another 50% of the tendered BOQ quantity shall be awarded to another agency as per modalities mentioned below. (3) The Evaluated Bid Price (EBP) of the Bidders would be ranked in ascending order as L-1, L-2, L-3, L4 & so on based on the Total Quoted Amount on Lumpsum Basis, Inclusive of GST. (4) Among all qualified and substantially responsive bids, the Lowest Evaluated Bid Price will be termed as L1 and 50% of the total tendered quantity shall be awarded on the lowest evaluated bidder (L1). (5) In case L1 is an MSE Bidder, then Conditions No. 6.& mentioned below shall NOT be applicable and further MSE purchase preference will not be applicable. Condition stipulated at Point Now (9) will be applicable for such cases, (6) If L1 is Non-MSE Bidder and MSE Bidders are falling in the range of L1+15% then the Order of Preference in Ranking to MSE Bidders shall be given as follows subject to matching of L1 price: a) First Preference to SC/ST & Women MSEs i.e. Women SC-ST MSE. b) Second preference to SC/ST -MSE Only c) Third Preference to Women-MSE only. d) Others MSES. 8 / 17 The above category/classification of MSE Bidder shall be verified through their submitted Udyam Certificate. No other document will be referred to for the same.” 7. It is also not in dispute that after opening of financial bid and finalizing the rate GeM issued e-mail to the petitioner and the other bidders falling as L-3, L-4 etc. E-mail notice talks of information given to petitioner that buyer has shown interest in his submission for bid No. GEM/2026/B/7867052 provided he matches L-1 price/negotiated L-1 price of this bid and it further mentions that petitioner was requested to accept or reject proposal by 02.09.2026 by 10:50 am. This e-mail is dated 30th August 2026 at about 10:51 am. 8. In the writ petition petitioner has categorically pleaded that petitioner has received the e-mail in his e-mail account however it escaped attention of staff member, entrusted with handling such correspondences. 9. From the aforementioned facts pleaded by the petitioner and accepted that e-mail was forwarded by GeM, then the submission of learned counsel for the petitioner that respondent authority or the GeM has not acted fairly is misconceived and not sustainable. Petitioner has not offered in writing, but in pleading it only mentioned that petitioner has orally conveyed its willingness. Unconditional written acceptance was submitted only on 07.09.2026. However, period by which the acceptance is to be submitted is till 02.09.2026 only, as specifically mentioned in e-mail forwarded to petitioner and others. 10. Law with regard to interference in the tender proceeding is well settled by Hon’ble Supreme Court in case of Tata Cellular Vs. Union of India 9 / 17 reported in (1994) 6 SCC 651, wherein Hon’ble Supreme Court has held thus: “77. The duty of the court is to confine itself to the question of legality. Its concern should be: 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696] , Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court 10 / 17 should, “consider whether something has gone wrong of a nature and degree which requires its intervention”. 11. In case of Michigan Rubber (India) Ltd. Vs. State of Karnataka and Ors reported in (2012) 8 SCC 216 , Hon’ble Supreme Court has held thus: “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 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; 11 / 17 (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.” 12. In case at hand, procedure adopted by GeM for offering their acceptance to match L-1 rates/L-1 finalized premium /discount is not specifically questioned by petitioner. However, during course of argument learned counsel for the petitioner made an attempt to submit that respondents have acted arbitrary in issuing letter not only to L-2 bidder ie. petitioner but also to L-3 bidder and according to the clauses of tender document, first opportunity is to be given to L-2 bidder. When Court posed specific question to learned counsel for the petitioner as to in which clause of tender document it is mentioned that first letter is to be issued /information is to be given only to L-2 bidder to match L-1 finalized premium/discount rate, he could not able to point out such clause. In absence of any specific clause in this regard the only consideration would be that even if the e-mail is sent to others including L-2 bidder then preference is to be given to L-2 bidder subject to his acceptance of the proposal to match L-1 price/negotiated L-1 price. When petitioner failed to submit its acceptance or rejection to proposal by the time specified then in the opinion of this Court, decision taken by competent authority that 12 / 17 petitioner is not interested, and accepted the acceptance forwarded by L-3 bidder after time prescribed, cannot be said to be arbitrary or unfairness on the part of respondent or that agency who floated tender document . The action adopted by the agency floated tender is fair and not arbitrary. 13. In case of Patel Engineering Co. Ltd. (supra), Hon’ble Supreme Court, while considering the argument that the mistakes or errors occurred due to fault of computer are unintentional, has observed thus: “23. The mistakes/errors in question, it is stated, are unintentional and occurred due to the fault of computer termed as “a repetitive systematic computer typographical transmission failure”. It is difficult to accept this contention. A mistake may be unilateral or mutual but it is always unintentional. If it is intentional it ceases to be a mistake. Here the mistakes may be unintentional but it was not beyond the control of Respondents 1 to 4 to correct the same before submission of the bid. Had they been vigilant in checking the bid documents before their submission, the mistakes would have been avoided. Further, correction of such mistakes after one-and-a-half months of opening of the bids will also be violative of clauses 24.1, 24.3 and 29.1 of the ITB.” 14. Hon’ble Supreme Court in case of AGMATEL India Pvt. Ltd. vs. Resoursys Telecom and Ors. reported in (2022) 5 SCC 362 while considering argument raised on interpretation of the tender document has held as under : 13 / 17 “24. The scope of judicial review in contractual matters, and particularly in relation to the process of interpretation of tender document, has been the subject-matter of discussion in various decisions of this Court. We need not multiply the authorities on the subject, as suffice it would be refer to the three-Judge Bench decision of this Court in Galaxy Transport Agencies [Galaxy Transport Agencies v. New J.K. Roadways, Fleet Owners & Transport Contractors, (2021) 16 SCC 808 : 2020 SCC OnLine SC 1035] wherein, among others, the said decision in Afcons Infrastructure [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] has also been considered; and this Court has disapproved the interference by the High Court in the interpretation by the tender inviting authority of the eligibility term relating to the category of vehicles required to be held by the bidders, in the tender floated for supply of vehicles for the carriage of troops and equipment. 25. This Court referred to various decisions on the subject and stated the legal principles as follows : (Galaxy Transport Agencies case [Galaxy Transport Agencies v. New J.K. Roadways, Fleet Owners & Transport Contractors, (2021) 16 SCC 808 : 2020 SCC OnLine SC 1035] , SCC paras 14-20) “14. In a series of judgments, this Court has held that the authority that authors the tender document is the best person to understand and appreciate its requirements, and thus, its interpretation should not be second- guessed by a court in judicial review proceedings. In Afcons Infrastructure Ltd. 14 / 17 v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] , this Court held : (SCC p. 825, para 15) ‘15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.’ x x x 16. Further, in the recent judgment in Silppi Constructions Contractors v. Union of India [Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489] , this Court held as follows : (SCC pp. 501-02, para 20) ‘20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, 15 / 17 therefore, the court's interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted . The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.’ 15. In case of Jagdish Mandal v. State of Orissa (2007) 14 SCC 517, Hon’ble Supreme Court observed as under: “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award 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 16 / 17 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 succour to thousands and millions and may increase the project cost manifold. Therefore, 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 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.” 16. Hon’ble Supreme Court in case of Shilpi Constructions Contractors Vs. Union of India and Anr. reported in (2020) 16 SCC 489 observed that the essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public 17 / 17 interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. 17. In the case at hand, the facts pleaded and argued by parties show that procedure was followed, to give petitioner an opportunity to submit acceptance and offer to match L-1 rate within prescribed time. E-mail sent in this regard was received in e-mail account of petitioner and therefore in the opinion of this Court, petitioner failed to make out a case of arbitrariness, unfairness, or malafide. 18. In the aforementioned facts and circumstances of the case, decision of Hon’ble Supreme Court as referred to above, we are of the considered view that petitioner could not make out a case for interference in the subject tender proceedings. 19. Before parting with the case, we also want to point out that petitioner has also not impleaded GeM or L-3 bidder as party respondent, who were necessary party in the facts of the case. 20. For the foregoing discussions, writ petition being sans merit is liable to be and is accordingly dismissed. S Sd/- Sd/- /- (Parth Prateem Sahu) (Sushma Sawant) Judge Judge Praveen