Gauhati High Court
Page No.# 1/19 vs The Union Of India And 3 Ors on 22 December, 2022
Page No.# 1/19
GAHC010158922021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5193/2021
M/S BN INFRAPROJECTS LLP AND 3 ORS.
A LTD. LIABILITY PARTNERSHIP FIRM HAVING ITS REGD. OFFICE AT
AMBAGAN ROAD, BYE LANE, NEAR MADHUBAN FACTORY, TEZPUR-
784001, DIST. SONITPUR, ASSAM AND REP. BY ITS DESIGNATED PARTNER
SRI BABUL NATH, S/O. SRI MANORANJAN NATH, R/O. VILL. POLICE LINE,
TEZPUR, SONITPUR,-784001
2: BABUL NATH
S/O. SHRI MANORANJAN NATH
VILL. POLICE LINE
TEZPUR
SONITPUR-784001
ASSAM.
3: SHARMISTHA NATH
D/O. ROMEN DEV NATH
R/O. TEZPUR TOWN
WARD NO.12
SONITPUR.
4: PRANAB NATH
S/O. MANORANJAN NATH
VILL. EX-POLICE LINE
TEZPUR-784001
SONITPUR
ASSAM
VERSUS
THE UNION OF INDIA AND 3 ORS.
REP. BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
GUWAHATI-781011.
2:THE CHIEF ENGINEER/CON-3
Page No.# 2/19
N.F. RAILWAY
MALIGAON
GUWAHATI-781011.
3:THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER
N.F. RAILWAY
MALIGAON
GUWAHATI-781011.
4:M.K GUPTA AND COMPANY
REP. BY AUTHORISED SIGNATORY MR. M K GUPTA
CARE OF M.K. GUPTA AND CO.
SEWAK ROAD
SILIGURI
WEST BANGAL
PIN-734001
Advocate for the Petitioner : MR. M BISWAS
Advocate for the Respondent : SC, NF RLY
Linked Case : WP(C)/5905/2021
M/S B N INFRAPROJECTS LLP AND 3 ORS
A LIMITED LIABILITY PARTNERSHIP FIRM HAVING ITS REGISTERED
OFFICE AT AMBAGAN ROAD
BYE LANE
NEAR MADHUBAN FACTORY
TEZPUR-784001 IN THE DISTRICT OF SONITPUR
ASSAM AND REPRESENTED BY ITS DESIGNATED PARTNER SHRI BABUL
NATH
S/O SRI SHRI MANORANJAN NATH
R/O VILL- POLICE LINE
TEZPUR
SONITPUR-784001
2: BABUL NATH
S/O SHRI MANORANJAN NATH
R/O VILL-POLICE LINE
TEZPUR
SONITPUR-784001
Page No.# 3/19
ASSAM
3: MS. SHARMISTHA NATH
D/O ROMEN DEV NATH
R/O TEZPUR TOWN
WARD NO. 12
SONITPUR
ASSAM
4: PRANAB NATH
S/O MANORANJAN NATH
R/O VILL- EX-POLICE LINE
TEZPUR-784001
SONITPUR
ASSAM
VERSUS
THE UNION OF INDIA AND 3 ORS
REPRESENTED BY THE GENERAL MANAGER
N.F. RAILWAY
MALIGAON
GUWAHATI-781011
2:THE CHIEF ENGINEER/CON-3
N.F. RAILWAY
MALIGAON
GUWAHATI-781011
3:THE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER
N.F. RAILWAY
MALIGAON
GUWAHATI-781011
4:M/S M.K. PUSPHAS SHIVAM (JV)
M.K. ENGINEERING
WEST MALIGAON
GUWAHATI-781011
ASSAM
------------
Advocate for : MR. M K CHOUDHURY
Advocate for : SC
NF RLY appearing for THE UNION OF INDIA AND 3 ORS
Linked Case : WP(C)/5189/2021
M/S BN INFRAPROJECTS LLP AND 3 ORS.
A LTD. LIABILITY PARTNERSHIP FIRM HAVING ITS REGD. OFFICE AT
AMBAGAN ROAD
Page No.# 4/19
BYE LANE
NEAR MADHUBAN FACTORY
TEZPUR-784001
DIST. SONITPUR
ASSAM AND REP. BY ITS DESIGNATED PARTNER SRI BABUL NATH
S/O. SRI MANORANJAN NATH
R/O. VILL. POLICE LINE
TEZPUR
SONITPUR
-784001.
2: BABUL NATH
S/O. SHRI MANORANJAN NATH
VILL. POLICE LINE
TEZPUR
SONITPUR-784001
ASSAM.
3: SHARMISTHA NATH
D/O. ROMEN DEV NATH
R/O. TEZPUR TOWN
WARD NO.12
SONITPUR.
4: PRANAB NATH
S/O. MANORANJAN NATH
VILL. EX-POLICE LINE
TEZPUR-784001
SONITPUR
ASSAM.
VERSUS
THE UNION OF INDIA AND 3 ORS.
REP. BY THE GENERAL MANAGER
N.F. RAILWAY
MALIGAON
GUWAHATI-781011.
2:THE CHIEF ENGINEER/CON-3
N.F. RAILWAY
MALIGAON
GUWAHATI-781011.
3:TJE FINANCIAL ADVISOR AND CHIEF ACCOUNTS OFFICER
N.F. RAILWAY
MALIGAON
GUWAHATI-781011.
Page No.# 5/19
4:M/S MKG SUBHADRA JV
REP. BY AUTHORISED SIGNATORY MR. M K GUPTA
CARE OF M.K. GUPTA AND CO.
SEWAK ROAD
SILIGURI
WEST BANGAL
PIN-734001.
------------
BEFORE
Hon'ble MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT & ORDER
Advocate for the petitioners : Shri M.K. Choudhury, Sr. Advocate
Shri M. Biswas, Advocate.
Advocates for the respondents: Shri B. Sharma, SC, NF Railways,
Shri G. Goswami, SC, NF Railways.
Date of hearing : 28.11.2021, 01.12.2022 & 05.12.2022.
Date of judgment : 22.12.2022.
1. Imposition of conditions in a Notice Inviting Tender or the interpretation
thereof are subject matters exclusively within the domain of the owner. Unless
the aforesaid conditions are wholly opposed to public policy or are accentuated
by malice so as to favour a vested interested party to the exclusion of other
bidders, such conditions are not to be interfered with. That is the general
Page No.# 6/19
interpretation of the law holding the field as held by the Hon'ble Supreme Court
in a catena of decisions starting from Tata Cellular Vs. Union of India reported
in (1994) 6 SCC 651 and reiterated in the latest cases of Michigan Rubber
(India) Ltd. vs. State of Karnataka reported in (2012) 8 SCC 216, Central
Coal Fields Limited vs. SLL-SML (Joint Venture Consortium & Ors.) reported
in (2016) 8 SCC 622, Caretel Infotech Limited vs. Hindustan Petroleum
Corporation Limited & Ors. reported in 2019 (6) SCALE 70 and Silppi
Constructions Contractors vs. Union of India and Anr. reported in (2019)
SCC Online 1133.
2. With that backdrop, the present issue is required to be examined. In fact a
common issue has arisen in these three writ petitions which were taken up for
an analogous hearing and being disposed of by this common judgment and
order.
3. Before going to the issue involved which has called for adjudication, the
brief facts of the cases may be noted in the following manner. The petitioners in
all the three cases are the same. While the petitioner no. 1 is a limited liability
partnership firm, the other petitioners are the partners of the same. The
petitioner no. 1 had submitted its bid in response to certain NIT's floated by the
Railways involving three different works. However, the bid was rejected on the
technical ground itself of not meeting the eligibility criteria. The petitioners
contend that the rejection has been done by misinterpreting the tender
conditions by holding the petitioner no. 1 to be ineligible for such bidding. The
further case of the petitioners is that the price quoted by the petitioners is less
than the price of the private respondent who was purported to be selected and
Page No.# 7/19
therefore, the element of public interest also comes in.
4. As regards, the respondent no. 4 (private respondent), the Lawazima Court
vide order dated 07.06.2022 has held that service is complete in spite of which
the said respondent has chosen not to appear and contest the writ petition.
5. According to the petitioners, certain more facts would be necessary to bring
home the case projected. The petitioner was earlier a sole proprietorship firm
namely M/s Babul Nath and had carried out various construction works under
the Railways for a long period of time. On 03.04.2017, an LLP agreement was
executed between the petitioner no. 2 and the petitioner no. 3 and the same
was incorporated on 09.04.2017. On 13.02.2020, the LLP was recognized by the
Railways.
6. The issue on which the petitioner no. 1 has been held to be ineligible is
mainly with regard to the past experience.
7. In these three writ petitions, three works are connected, the details of
which are given below:
"(i) Earthwork in filling to form embankment including blanketing,
construction of minor bridges (8 Nos.), RUB (11 Nos.), trolley refuges, drains,
protection work, approach road, diversion road, toe wall and other ancillary
works from field Ch. 50.60 Km to Ch. 58.50 Km between Kaliaganj and Bibiganj
excluding Ch. 55.30 Km to 56.10 Km (Teragachh Halt) and approaches of major
bridges (50m both sides) in connection with construction of new BG line from
Arariya to Galgalia to N.F. Railway (Construction).
Page No.# 8/19
Tender value: Rs.61089963.60/-
Completion period: 15(Fifteen) months
(ii) Earthwork in filling to form embankment including blanketing,
construction of minor bridges (10 Nos.), RUB (14 Nos.), trolley refuges, drain,
protection work, approach road, diversion road, toe wall and other ancillary
works from Ch. 39.10 Km to Ch. 49.60 Km between Bardha Halt and Kaliaganj
Station excluding approaches of major bridges (50m both side) in connection
with construction of new BG line from Arariya to Galgalia to N.F. Railway
(Construction).
Tender value: Rs.693160701.75/-
Completion period: 12(Twelve) months
(iii) Earthwork in formation for making Railway embankment, construction of
minor bridge, blanketing work as per RDSO's specification and construction of
substructure and superstructure of Major bridges on pile foundation: Bride No.
513 (6x12.2m PSC slab), 516 (5x12.2m PSC slab), 517 (2x9.15+3x6.1m PSC
slab), 518 (2x12.2m PSC slab), 519 (2x12.2m PSC slab), 520 (3x6.10m PSC
slab),521 (4x30.5m OWT+ 2x6.1m PSC slab), 523 (2x9.15m PSC slab), 524
(1x12.2m PSC slab), 525 (9.15m+12.2m+9.15m PSC slab), 527 (3x12.2m PSC
slab), 531 (3x12.2m PSC slab) and 532 (2x12.2m PSC slab) including steel
girder launching of Bridge No. 521 (4x30.5m OWT) and all ancillary works in
between station Rangiya to Agthori Km 362/0 to Km 395/0 in connection with
double line work of New Bongaigaon -Agthori project.
Tender value: Rs.1682769366.67/-
Completion period: 18(Eighteen) months"
Page No.# 9/19
8. The eligibility criteria were to be under Technical Criteria, Financial Criteria
and Bid Capacity. It is only after being technically qualified, the Financial Bid of
the tenderer would be open.
9. The present dispute is with regard to the Eligibility Criteria concerning the
Bid Capacity. The relevant parts of tender document are extracted herein below
for proper appreciation of the issue involved.
"(C) Bid Capacity:
(i) The tender / technical bid will be evaluated based on bid capacity formula
detailed as Annexure VI and proforma-II failing which offer shall be considered
as incomplete and will be rejected summarily. (Applicable for works consting
more than Rs. 20.00 crore).
3. In case of newly formed partnership firm, the credentials of individual
partners from previous propriety firm(s) or dissolved previous partnership
firm(s) or split previous partnership firm(s), shall be considered only to the
extent of their share in previous entity on the date of dissolution / split and their
share in newly formed partnership firm. For example, a partner A had 30%
share in previous entity and his share in present partnership firm is 20%. In the
present tender under consideration, the credentials of partner A will be
considered to the extent of 0.3*0.2* value of the work done in the previous
entity. For this purpose, the tenderer shall submit along with his bid all the
relevant documents which include copy of previous partnership deed(s),
dissolution deed(s) and proof of surrender of PAN No.(s) in case of dissolution
of partnership firm(s) etc.
Page No.# 10/19
9. In a partnership firm "AB" and A&B partners, in case A also works as
propriety firm "P" or partner in some other partnership firm "AX", credentials of
A in propriety firm "P" or in other partnership firm "AX" earned after the date of
becoming a partner of the firm AB shall not be added in partnership firm AB.
10. In case a tenderer is LLP, the credentials of tenderer shall be worked out
on above lines similar to a partnership firm."
10. The mode of calculation was as per Annexure-6 and proforma-II. As per
Clause 2 (c) such capacity was to be evaluated. In Clause 3, it has been
explained that for newly formed partnership firm, the credentials of the
individual partners from previous proprietory firms or dissolved previous
partnership firm etc shall be considered only to the extent of their share in
previous entity on the date of dissolution / split and their share in the newly
formed partnership, an example has also been cited in the said Clause. In
Clause 9, a further illustration has been given in case of a partnership firm and
Clause 10 clarifies that the same criteria would also be applicable for a tenderer
which is a LLP.
11. As stated above, while evaluating the Bid Capacity, according to the
petitioners, the evaluation has not been done in a proper manner as a result of
which, the bid of the petitioner no. 1 has been found to be ineligible. It is this
decision which is the subject matter of challenge in these writ petitions.
12. I have heard Shri M.K. Choudhury, learned Senior Counsel for the
petitioners assisted by Shri M. Biswas and Ms. M. Das, the learned counsel. I
Page No.# 11/19
have also heard Shri B. Sharma, learned Standing Counsel, Railways who
appears for the contesting respondents in WP(C)/5189/2021 and 5193/2021
whereas in WP(C)/5905/2021, the Railways are represented by Shri G.
Goswami. In WP(C)/5189/2021 and WP(C)/5193/2021, the Railways have also
filed IAs for vacating the interim order directing maintenance of status quo.
13. Shri M.K. Choudhury, learned Senior Counsel for the petitioners has
submitted that though it was the prerogative of the employer to interpret the
various clauses of the Notice Inviting Tender, such interpretation has to be
reasonable and with proper application of mind. The learned Senior Counsel
submits that the Clauses of the tender document which have been laid down for
evaluation has to be done so as to achieve the objective and not to defeat the
same. In the instant case, the issue centers around the evaluation of Bid
Capacity. According to the petitioners, there are two glaring errors committed by
the Railways in evaluation of the bids of the petitioner no. 1. Firstly, while
applying Clause 3 to evaluate the Bid Capacity, the Railways lost sight of the fact
that the petitioner no. 1 which is a LLP was earlier a sole proprietorship firm
known as M/s Babul Nath of which Shri Babul Nath (the petitioner no. 2) was
the sole proprietor. The aforesaid proprietorship firm has now constituted a LLP
with the petitioner nos. 2, 3 & 4. In the example cited is that of a partner "A"
who had 30% share in the previous entity and 20% share in the present
partnership firm. The credentials of partner-A will be considered to the extent
0.3*0.2*. According to the learned Senior Counsel, the evaluation in this regard
has been wrongly done.
14. Secondly, the date of taking the credentials is also wrongly done by which
Page No.# 12/19
prejudice has been caused to the petitioner no. 1. It is contended on behalf of
the petitioners that though there is no dispute that the date of incorporation of
the LLP is 09.04.2017, the recognition of the LLP by the Railways is on
13.02.2020, the learned Senior counsel accordingly submits that while
interpreting Clause 9, instead of treating 13.02.2020 as the effective date, the
date of incorporation of 09.04.2017 has been taken and in the meantime from
09.04.2017 and 13.02.2020, M/s Babul Nath, the sole proprietorship firm had
executed a number of other works with the Railways which are necessarily
required to be taken into consideration for evaluating the Bid Capacity. That
apart, the learned Senior Counsel submits that so far as another work is
concerned namely the work pertaining to Nalbari, Kaithalkuchi, Tihu and
Nizsariha, with the same credentials, the petitioner no. 1 was granted Letter of
Acceptance on 31.03.2021 and therefore, the impugned decision is wholly
inconsistent and requires intervention.
15. In support of the submissions, the petitioner had relied upon the following
case laws:-
1. Satya Jain vs Anis Ahmed Rushdie & Ors. [(2013) 8 SCC 131)]
2. Central Inland water transport Ltd vs. Brojo Nath Ganguly [ (1986) 3 SCC 156]
3. Mahavir Auto Stores & Ors. vs. Indian Oil Corporation & Ors. [(1990) 3 SCC
752]
4. LIC of India & Anr vs. Consumer Education & Research Centre [(1995) 5 SCC
482]
5. Balmer Lawrie & Company Ltd & Ors. vs. Partha Sarathi Sen Roy & Ors.
[ (2013) 8 SCC 345]
Page No.# 13/19
6. Ashok Transport Agency vs. Awadhesh Kumar [(1998) 5 SCC 567]
7. Jai Bholenath Construction vs. The Chief Executive Officer Zilla Parishad,
nanded & Ors.
16. The case of Satya Jain (supra) has been cited to bring in the theory of
business efficacy in interpreting clauses of contract.
17. The cases of Brojo Nath Ganguly (supra), Mahavir Auto Stores (supra), LIC of
India (supra) and Balmer Lawrie (supra) have been cited to highlight the
situation of unconscionable / unfair / unreasonable clauses in a contract where
there is unequal bargaining power.
18. The case of Ashok Transport (supra) has been cited to explain that a
proprietory concern and proprietor are not separate entity.
19. In Jai Bholenath Construction, the Hon'ble Supreme Court has itself carved
out an exception to the case of M/s N.G. Projects Ltd. vs. M/s Vinod Kumar
Jain reported in 2022 (5) SCALE 105.
20. Per contra, both Shri B. Sharma and Shri G. Goswami, learned Standing
Counsel, Railways have strenuously opposed the writ petitions. From the side of
the Railways, it is submitted that the petitioners participated in the process by
submitting the bid knowing fully well the terms and conditions. Having
submitted the bid, it is not available for the petitioner to challenge any condition
on the allegation that the same has caused prejudice to them.
Page No.# 14/19
21. It is further submitted that the interpretation sought to be given on clause
- C regarding evaluation of Bid Capacity by the petitioners is not correct as such
interpretation has to be left to the Railways as they are the owner of the
document. As regards, the date regarding taking into account the earlier
credentials, both the Counsel for the Railways submits that it is the date of
incorporation of the LLP which is crucial and not the date of recognition by the
Railways. It is clarified that the LLP agreement was signed on 03.04.2017 and
the LLP was incorporated on 09.04.2017 which should be the crucial date.
Therefore, according to the Railways, any works done after 09.04.2017 by the
proprietorship firm of M/s Babul Nath will not be taken into account while
evaluating the credentials of the LLP. It is further submitted that on 13.02.2020,
only the change of name of the petitioner no. 1 was recognized. It is further
submitted that though orders of status quo have been passed in
WP(C)/5189/2021 and WP(C)/5193/2021, in the meantime, the work was
already handed over to the private respondents who is continuing and is rather
pressing for urgent release of the bills for the works done.
22. Shri G. Goswami, learned Counsel for the Railways however submits that in
so far as WP(C)/5905/2021 is concerned pertaining to the Rangia Sector, there
is no kind of any interim order operating and the work is proceeding through a
third party.
23. Both the learned counsel for the Railways submit that the works in
question are of immense public importance and therefore, the same be
permitted to be done by dismissing the writ petitions. It is further submitted
that in absence of allegation of any mala fide action in treating the bid of the
Page No.# 15/19
petitioner no. 1, the scope for interference would be absolutely limited.
24. In support of their submission, the Railways have placed reliance upon the
following case laws:
1. The Silppi Constructions Contractors vs. Union of India and Anr. reported
in(2019) SCC Online 1133.
2. National High Speed Rail Corporation Limited vs Montecarlo Limited &
Anr. reported in 2022 0 SC 76.
3. The Bharat Coking Coal Ltd. & Ors. vs. AMR Dev Prabha & Ors. reported in
(2020) 16 SCC 759.
25. The case of Silppi Constructions (supra) has been cited to bring home the
argument that in contracts involving technical issues, the Court should be more
reluctant as it involves necessary expertise which is beyond the scope of judicial
review. The Hon'ble Supreme Court had also reiterated that the authority which
floats the contract or tender and has authored the tender documents is the best
judge as to how the same should be interpreted.
26. In the case of Montecarlo Limited (supra), the Hon'ble Supreme Court has
given an embargo of passing interim orders in matters of public importance. It
has been reiterated that there should be judicial restraint as a Court does not sit
as a Court of appeal and merely reviews the matter regarding the decision
making process.
27. In the case of Bharat Coking Coal (supra) the restraint to be followed in
interfering with contractual matters have been reiterated. It has been stated
Page No.# 16/19
that conscious restrain is also necessary because judicial intervention by itself
has effects of time and money which if unchecked, would have problematic
ramifications on the administrative system.
28. The rival contentions advanced on behalf of the contesting parties have
been duly considered and the materials placed before this Court have been
carefully examined. The parameters laid down by various judicial
pronouncements in entering into a contractual dispute have already been
observed above. Under those restricted parameters of scrutinizing the decision
making process in contractual matters, the present dispute is required to be
adjudicated and the issues arising are required to be answered.
29. The dispute, as have been elaborated above hinges upon the evaluation of
Bid Capacity by interpretation of Clause 2 (C) (i), 3, 9 & 10. The formula which
has been adopted for making the said evaluation is not under challenge and
perhaps cannot be a matter of challenge also as it is within the exclusive
domain of the owner. However, the application of the facts and circumstances
on the said formula can be looked into as it forms a part of the decision making
process and more so, when in the instant case the specific allegation is of an
incorrect application. For the same, the veil will have to be lifted. Clause 3
makes it clear that in case of a newly formed entity, the credentials of one of
the constituents in an earlier entity would be to the extent of his share on the
date of dissolution and his share in the newly formed entity. In the instant case,
however the earlier entity was M/s Babul Nath which was a proprietorship firm
and there is no manner of dispute that the sole proprietor is one Shri Babul
Nath. It is the said individual who had later formed the LLP which is the
Page No.# 17/19
petitioner no. 1 - bidder in the instant cases is an LLP of which M/s Babul Nath,
the proprietorship firm is one of the constituents. In that view of the matter, so
far as the credentials of M/s Babul Nath is concerned, there being only one
proprietor, the entire credentials till forming of the LLP has to be taken into
consideration along with its share in the newly formed LLP.
30. The second dispute is with regard to the date of taking the credentials
while interpreting Clauses 9 & 10. As per the said clauses, credentials of the
earlier entity attained after formation of the new entity which is the bidder shall
not be taken into consideration. To resolve the dispute, certain dates are crucial
namely the date of signing of the LLP which is 03.04.2017, incorporation of the
LLP which is 09.04.2017 and recognition of the LLP by the Railways which is
13.02.2020. Though the learned counsel for the Railways may be right in
contending that the crucial date is the date of incorporation i.e. 09.04.2017,
what is of relevance is the date when the LLP was recognized by the Railways
and there is no manner of doubt that it is only by the communication dated
13.02.2020 that the LLP was recognized and the change in the name and style
was sanctioned. It is absolutely clear that prior to such sanction, the LLP as an
entity could not have bided for any tender floated by the Railways.
31. The question which arises is as to whether the credentials achieved by M/s
Babul Nath as a proprietorship firm prior to 13.02.2020 has to be taken into
consideration or prior to 09.04.2017, i.e. the date of incorporation of the LLP.
Though the LLP became a legal entity on the date of incorporation i.e.
09.04.2017, unless the sanction was granted on 13.02.2020, the LLP could not
have submitted its bid in the Railways. Therefore, if the credentials achieved in
Page No.# 18/19
the interregnum between 09.04.2017 till 13.02.2020 is ignored / over looked,
immense prejudice would be caused to the party and there would be no
justification for the same. Therefore, interest of justice would demand that the
credentials of the proprietorship firm has to be taken into consideration till
13.02.2020 when the LLP was recognized by sanction of its name by the
Railways. Further, a bare perusal of the communication dated 13.02.2020 would
show that copies were marked to all the relevant sections connected with the
work contracts to be floated by the Railways including the petitioner no. 1.
32. The contention of the petitioners is that the rejection of the petitioners in
the technical evaluation is only because in the bid evaluation, incorrect
parameters of the earlier entity have been taken to make the assessment. The
petitioners have also submitted that the prices offered by the petitioners are
much less than the prices which have been offered by the private respondents.
Further, holding the petitioner no. 1 eligible in another similar work in which
LOA dated 31.03.2021 was granted in favour of the petitioner no. 1 is also a
relevant fact.
33. In view of the aforesaid facts and circumstances and also taking into
account the public interest involved, the instant writ petitions are allowed by
directing the respondent - Railways to redo the exercise of evaluation of the bid
capacity of the petitioner no. 1 in the manner indicated above and by taking the
antecedents of the proprietorship firm properly and till 13.02.2020. Since it is
contended by the petitioners that in such a case, the petitioner no. 1 would
meet the Bid Capacity, if the aforesaid contention turns out to be correct, the
work /remaining part of the same be handed over to the petitioner No. 1 in
Page No.# 19/19
accordance with law, if the price quoted by the petitioner no. 1 is found to be
lesser.
34. It is made clear that since the cases are pending coupled with the fact that
the private respondents have chosen not to contest the same, the question of
affording further opportunity before formally offloading the work from the
private respondents would not arise.
35. No order as to cost.
JUDGE
Comparing Assistant
