Gauhati High Court
Page No.# 1/15 vs The Union Of India And 7 Ors on 24 October, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Manish Choudhury
Page No.# 1/15
GAHC010106952025
2025:GAU-AS:14154-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/161/2025
SHREE GAUTAM CONSTRUCTION COMPANY LIMITED
A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS
REGISTERED OFFICE AT 4TH FLOOR, AMAZE TOWER, A.T. RAOD,
OPPOSITE PAN BAZAR OVER BRIDGE, BEAT NO. 14, PALTAN BAZAR,
GUWAHATI-781001, ASSAM AND IS REP. BY ONE OF ITS DIRECTOR SHRI
SANDEEP SINGHI, S/O. SHRI UMED KUMAR SINGHI, R/O. OF HOUSE NO.
24, BYE LANE NO. 6, TARUN NAGAR, DISPUR-781005, GUWAHATI IN THE
DISTRICT OF KAMRUP (M), ASSAM.
VERSUS
THE UNION OF INDIA AND 7 ORS.
REP. BY THE SECRETARY, MINISTRY OF JAL SHAKTI, DEPARTMENT OF
WATER RESOURCES, RD AND GR, BRAHMAPUTRA BOARD, MAJULI
DIVISION, KAMALABARI, MAJULI.
2:THE BRAHMAPUTRA BOARD
REP. BY THE GENERAL MANAGER
SHRI ABHAY KUMAR
BRAHAMAPUTRA BOARD
BAISISTHA
GUWAHATI-29.
3:THE CHIEF ENGINEER-I
BRAHAMAPUTRA BOARD
BASISTHA
GUWAHATI-29.
4:THE DEPUTY FINANCIAL ADVISER
BRAHAMAPUTRA BOARD
BASISTHA
GUWAHATI-29.
5:THE SUPERINTENDING ENGINEER UPPER BRAHAMAPUTRA CRICLE
Page No.# 2/15
BRAHAMAPUTRA BOARD
JORHAT.
6:THE EXECUTIVE ENGINEER
MAJULI DIVISION
BRAHAMAPUTRA BOARD
MAJULI
7:TARUN DUTTA
R/O. COLLEGE ROAD
KHELMATI
P/O. AND P/S. NORTH LAKHIMPUR
ASSAM.
8:BRAHMAPUTRA INFRASTRUCTURE LTD.
4TH FLOOR
ROYAL PLAZA
OPPOSITE APOLLO HOSPITAL
CHRISTIAN BASTI
GUWAHATI
ASSAM
Advocate for the Petitioner : MR M SAHEWALLA, MS T J SAHEWALLA,MS. S. TODI,MS S
AGARWAL,MR G N SAHEWALLA
Advocate for the Respondent : DY.S.G.I., MR. R K D CHOUDHURY (DEPUTY SOLICITOR
GENERAL OF INDIA),MR. R PHUKAN (R-7),MR. R K BORAH (R-7)
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MR. JUSTICE MANISH CHOUDHURY
For the appellant : Mr. G.N. Sahewalla, Senior Advocate.
: Mr. M. Sahewalla, Advocate.
For respondent nos.1 to 6 : Mr. R.K.D. Choudhury, CGC.
For respondent no.7 : Mr. R.K. Borah, Advocate.
Date of hearing : 24.07.2025.
Date of judgment : 24.10.2025.
JUDGMENT AND ORDER
(CAV)
(K.R. Surana, J)
Heard Mr. G.N. Sahewalla, learned senior counsel, assisted by
Page No.# 3/15
Mr. M. Sahewalla. Also heard Mr. R.K.D. Choudhury, learned D.S.G.I. for Union of
India, representing the respondent nos. 1 to 6 and Mr. R.K. Borah, learned
counsel for the respondent no.7. None appears on call for respondent no.8.
2) By filing this intra-court appeal, the appellant, who is the writ
petitioner in W.P.(C) No. 2563/2025, has assailed the judgment and order dated
19.05.2025, passed by the learned Single Judge, thereby dismissing the said
writ petition.
3) In connection with a notice inviting tender (NIT for short),
dated 21.01.2025, issued by the authorities of the respondent no. 2, i.e. the
Brahmaputra Board under two bid system for the work of "Protection of Majuli
Island from flood and erosion of river Brahmaputra (Phase-V)", the appellant
had submitted its bid. However, upon opening the technical bid, the bid of the
petitioner was rejected on the ground that the appellant had failed to comply
with the requirement of Clause 2.(i) of Annexure-20A.13.2. Accordingly, the
aggrieved appellant had filed a writ petition under Article 226 of the Constitution
of India, inter alia, praying for a mandamus directing the respondent authorities
to cancel, recall or otherwise forbear from giving effect to the impugned action
on their part in rejecting the technical bid of the appellant submitted pursuant
to the NIT bearing memo no. BB/MD/T-158/2024-25/5 dated 21.01.2025, issued
by the respondent authorities in respect of the hereinbefore referred contract
work; and for a direction to the respondent authorities to consider the technical
bid of the appellants and to open its financial bid; and for other reliefs.
4) The said writ petition was dismissed by the judgment and order
impugned in this intra-court appeal. While dismissing the writ petition, this
Court had examined the relevant clause 2.a.(i) of Annexure-20A.13.2 of the bid
document and considering the requirement of submitting bidder's performance
Page No.# 4/15
in two works completed within the last three years from the last date of
submission of the bids and accordingly, it was held that the work completion
certificate dated 30.11.2022 submitted by the appellant, the same does not
have any performance report on specific particulars/ parameters and when
compared with another performance report submitted by the petitioner, it was
opined that the completion certificate dated 30.11.2022, only states that that
"the work has been completed in all respect as per specification and provisions
and to the satisfaction of the Deptt." Thus, relying on the decision of the
Supreme Court of India in the case of Afcons Infrastructure Ltd. v. Nagpur
Metro Rail Corpn. Ltd., (2016) 16 SCC 818 and Silppi Construction Contractors v.
Union of India, (2020) 16 SCC 489 , it was held that when the author of the
terms and conditions of tender have come to a finding that there is no
performance certificate, this Court, not being a Court of appeal, and not having
expertise in such matters, cannot substitute its own views with that of experts
in the field. It was further observed that from a perusal of the minutes of
meeting dated 08.05.2025, it shows that the bid of another bidder named
therein had its bid rejected on the same ground as that of the appellant.
5) The learned senior counsel for the appellant has meticulously
referred to the relevant tender clauses, being clause nos. 2.a. and 2.a.(i) of
Annexure-20A.13.2., as well as through the documents annexed to the Memo of
Appeal. It was submitted that the respondent authorities had not prescribed a
format as to how the performance certificate must be prepared. Therefore, it
has been submitted that as the Executive Engineer, PWD, NH Division,
Dibrugarh, a responsible authority had issued the relevant completion certificate
dated 30.11.2022, before rejection, the respondent authorities could have either
made their own enquiry or they would have asked the appellant to produce
certificate in the format, as the respondent authorities had desired.
Page No.# 5/15
6) It was also submitted that the appellant had submitted one
work performance certificate dated 03.12.2019; one undated work completion
certificate, showing actual date of completion to be 21.01.2025; and one work
completion certificate dated 30.11.2022. It was submitted that the learned
Single Judge had failed to appreciate that the work completion certificate dated
30.11.2022, was issued after about 4 (four) month's from the actual date of
completion of the work and therefore, the certificate signified that the
performance was satisfactory. Moreover, it was submitted that the learned
Single Judge had failed to appreciate that the physical progress of the work, as
per completion certificate dated 30.11.2022, was 100%, which ought to have
been construed that the performance of the appellant was satisfactory. It was
also submitted that the learned Single Judge had failed to consider that the
value of work done was not disclosed in the work completion certificate
submitted by the private respondent no.7, which is in non-compliance of Clause
2(i) of Annexure-20A.13.2 of the Bid Document.
7) It was also submitted that in the bid document, the authorities
had not provided any prescribed format in which "Performance Certificate" had
to be furnished and therefore, it has been submitted that the impugned
judgment and order by the learned Single Judge is vitiated for non-consideration
of that aspect of the matter. It was further submitted that the learned Single
Judge had erred in rejecting the contentions of the appellant by holding that the
appellants had provided performance certificate in respect of one work
completion certificate and did not do so for another work.
8) It was also submitted that as per the requirement of Clause 2.a.
of Annexure- 20A.13.2 of the Bid Document was to the effect that the bidder
should have experience of successfully completed works as mentioned
thereunder during the last seven years ending previous day of last date for
Page No.# 6/15
submission of application. Moreover, as per Clause 2.a.(i) of Annexure- 20A.13.2
of the Bid Document, the requirement was to the effect that the bidder should
have completed three similar works each costing not less than 40% of the
estimated cost put to tender; or two similar works, each cost not less than 60%
of the estimated cost put to tender; or one similar work costing not less than
80% of the estimated cost put to tender. In the said regard, by referring to the
additional affidavit filed by the appellant on 09.06.2025, the learned senior
counsel for the appellant had submitted that during the pendency of this appeal,
the appellant could get access to the documents that were submitted by the
respondent no.7, and it was seen that the different bid assessment parameters
were applied for the respondent no.7, because in lieu of the performance
certificate as required under Clause 2(i) of Annexure-20A.13.2 of the Bid
Document, the respondent no. 7 had furnished/ submitted a certificate wherein
the total work done by respondent no. 7 was only 98%. Thus, it was submitted
that by doing 98% work, the bid evaluation authorities had accepted the
certificate of respondent no. 7, as if the work was successfully completed.
9) Moreover, it was submitted that though in respect of the
respondent no. 7, their bid did not contain performance report, which was the
reason for rejecting the bid of the appellant. Moreover, the certificates appended
to the bid documents of the respondent no. 7 pertained to the work done by a
Joint Venture consortium where the respondent no. 7 had share percentage of
40% and 50% respectively, whereas, the bid that was submitted by respondent
no.7 was in the individual capacity.
10) In support of his submissions, the learned senior counsel for the
appellant has referred to the following, viz., (i) meaning of "performance" as
defined in Black's Law Dictionary, 5 th Edition; (ii) M.R. Power Management
Page No.# 7/15
Company Ltd., Jabalpur v. Sky Power Southeast Solar India Pvt. Ltd. & Ors.,
(2023) 2 SCC 703 (para 73 to 75), (iii) Rashmi Metaliks Ltd. & Anr. V. Kolkata
Metropolitan Development Authority & Ors., (2013) 10 SCC 95 (para 18) ; and
(iv) Banshidhar Construction Pvt. Ltd. v. Bharat Coking Coal Limited & Ors.,
(2024) 10 SCC 273 (para 19 to 21, 29 and 30).
11) Accordingly, the learned senior counsel had prayed that the
impugned judgment and order be set aside and the reliefs as prayed for in the
writ petition be allowed.
12) Per contra, the learned Deputy Solicitor General of India and the
learned counsel for the private respondent no. 7 have made their respective
submission in support of the impugned judgment and order. It had been
submitted that the relevant Clause 2.a (i) of Annexure 20.A.13.2 of the Bid
Document pertains to the work experience of the bidders, requiring the bidders
to have successfully completed relevant works amounting to a specific value. In
the said regard, it has been submitted that the respondent no.7 had submitted
its work experience document disclosing successful completion of work worth
Rs.39,68,42,696.00 (Rupees Thirty nine crore sixty eight lakh forty two
thousand six hundred ninety six only), which is more than 80% of the tender
value. Hence, it has been submitted that the respondent no. 7 has the work
experience as per the requirement of the said clause.
13) It has been submitted that the main allegations of the appellant
are to the effect that (i) the requirement of Clause 2.a.(i) of Annexure 20.A.13.2
of the Bid Document is that the bidders should have experience of successfully
completed works worth a defined value, but the certificate relied by the
respondent no.7 discloses that the physical progress of the work was 98%; and
(ii) the certificate relied by the respondent no. 7 does not contain the
Page No.# 8/15
performance certificate for the work. Thus, in other words it is alleged by the
appellant that the ground of rejection of the technical bid submitted by the
appellant discloses that the bidding authorities had discriminated against the
appellant and favoured the respondent no.7. In the said regard, it has been
submitted that the respondent no. 7 had submitted a work experience
document where it is certified that it had successfully completed a work
amounting to Rs.39,68,42,696.00 (Rupees Thirty nine crore sixty eight lakh forty
two thousand six hundred ninety six only), which satisfies the requirement as
per the above clause. It was submitted that the technical bid of the appellant
was rejected for non-compliance of Annexure 20.A.13.2 Clause 2(i) and not on
the grounds which are projected by the appellant.
14) Considered the materials available on record and also considered
the submissions made on behalf of the appearing parties and also the cases
cited by the learned senior counsel for the appellant.
15) In this case, the rejection of bid submitted by the appellant
during technical evaluation is challenged, amongst others, on the ground that
the appellant had failed to comply with the requirement mentioned in Clause 2.
(i) of Annexure-20A.13.2 of the Bid Document.
16) The points of determination which arises for determination in
this case are:-
a. Whether or not the action of the State respondents in rejecting
the tender of the petitioner was arbitrary?
b. Whether or not the action of the State respondents in awarding
the tender contract to the respondent no. 7 was arbitrary?
17) As per conjoint reading of paragraph nos. 73 to 75, 82.10 and
82.12 of the decision of the Supreme Court of India in the case of M.P. Power
Page No.# 9/15
management Co. Ltd. (supra) , the reach of Article 14 of the Constitution of
India enables a writ Court to deal with arbitrary State action even after contract
is entered into by the State. Moreover, it was further held that having regard to
the position of the State and its duty to act fairly and to eschew arbitrariness in
all its actions, resort to constitutional remedy on the cause of action which is
arbitrary, that the action is arbitrary, is permissible. Therefore, there is no doubt
that if the State action in awarding tender contract is arbitrary, the Court would
have power and jurisdiction to examine as to whether the action complained of
is arbitrary.
18) The prescription of Clause 2.(i) of Annexure 20.A.13.2 is as
follows:-
"The bidder's performance for any two-works completed in the last 3 years
ending previous day of last day of submission of this bid/tender should be
certified by an officer not below the rank of an Executive Engineer/Project
Manager or equivalent in Form-D. (Scanned copy of performance report to
be uploaded)."
19) Therefore, it is clear that the submission of bidder's performance
for two works completed in last three years is the requirement of the said
Clause 2.(i) of Annexure 20.A.13.2 of the Bid Document.
20) The learned Single Judge, after examining the contents of (1)
the work completion certificate dated 03.12.2019, in respect of the work of
"Construction and Upgrading of River Works along the Buradehing River to
reduce river erosion risks Package-2 Lot-4, Dibrugarh, Assam" and (2) the work
completion certificate dated 30.11.2022, in respect of " Rehabilitation including
river training works of Bridge No. 427/1 on NH-52 (New NH No.15) over River
Gai under Annual Plan for the year 2019-20 under PWD Nagaon NH Division in
the State of Assam under WPC mode (Job No. 015/AS/2019-20/205)", arrived at
a conclusion that the second work completion certificate dated 03.12.2019 does
Page No.# 10/15
not have any "performance report" when compared to the earlier certificate
dated 30.11.2022.
21) The learned senior counsel for the appellant had given much
stress on the appellant's interpretation of the work performance certificate. Be
that as it may, a work completion certificate, in all cases, may not be a
performance certificate.
22) The learned Single Judge has placed reliance on the
observations made by the Supreme Court of India in the case of Afcons
Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 , holding
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 learned Single Judge has also relied on the
observations made by the Supreme Court of India in the case of Silppi
Construction Contractors v. Union of India, (2020) 16 SCC 489 , to the effect that
if two interpretations of tender documents are possible, then the interpretation
done by the author must be accepted.
23) It is true that there is no format of the performance certificate.
However, the fact remains that notwithstanding the absence of format of
performance guarantee, in this case, the appellant has failed to provide
performance certificate as required in the above referred Clause 2.(i) of
Annexure 20.A.13.2 of the Bid Document. Hence, the rejection of the appellant's
technical bid on account of non-submission of the performance certificate
cannot be said to be invalid or unjustified. The absence of a format does not
negate the obligation to provide the required information. The respondent
authority acted in accordance with the principles of fair evaluation and
procedural integrity.
Page No.# 11/15
24) The Court is also of the view that this Court is not sitting in
appeal over the decision of the tendering authorities and therefore, it is not
open to this Court to substitute its wisdom over the decision of the competent
authority that had done Technical evaluation of the tender submitted by various
tenderers. The Court having no expertise in technical assessment and/or
evaluation of a tender, is unable to hold that the second completion certificate
dated 03.12.2019 inheres in it the "performance report" by applying the
decision of Rashmi Metaliks Ltd. (supra) in view of the decision of the Supreme
Court of India in the case of Afcons Infrastructure Ltd. (supra) and Silppi
Construction Contractors (supra), which are referred hereinafter.
25) As mentioned hereinbefore, it is reiterated that the learned
senior counsel for the appellant had submitted that the appellant had submitted
(1) one work performance certificate dated 03.12.2019; (2) one undated work
completion certificate, showing actual date of completion to be 21.01.2025; and
(3) one work completion certificate dated 30.11.2022. It was submitted that the
learned Single Judge had failed to appreciate that the work completion
certificate dated 30.11.2022, was issued after about 4 (four) month's from the
actual date of completion of the work and therefore, the certificate signified that
the performance. Moreover, it was submitted that the learned Single Judge had
failed to appreciate that the physical progress of the work, as per completion
certificate dated 30.11.2022, was 100%, which ought to have been construed
that the performance of the appellant was satisfactory. The Court is unable to
give its imprimatur the said submissions as because this would require Court's
interpretation regarding the contents of the performance certificate, which
would amount to substituting the wisdom of the Court over the interpretation of
the tendering authority regarding requirement of the tender conditions. In this
regard, the Court finds support from the case of Afcons Infrastructure Ltd.
Page No.# 12/15
(supra) and Silppi Construction Contractors (supra), referred to by the learned
Single Judge.
26) The relevant observations and decision of the learned Single
Judge, as given in paragraph nos. 18 to 20 of the impugned judgment and
order, are as under:-
"18. In view of the fact that the State respondents are the author of the
terms and conditions of the tender and they have come to a finding that
there is no Work Performance Certificate in relation to "Rehabilitation
including river training works of Bridge No. 427/1 on NH-52(New NH No.15)
over River Gai under Annual Plan for the year 2019-20 under PWD Nagaon
NH Division in the State of Assam under EPC mode. (Job No.-015/AS/2019-
20/205)", inasmuch as, no parameters have been laid down in the Work
Completion Certificate dated 30.11.2022, vis-a-vis, the other Work
Completion Certificates, as mentioned in the foregoing paragraphs, this
Court not being a Court of appeal and not having the necessary expertise in
such matters, cannot substitute it's own views with that of the experts in
the field. Further, a perusal of the meeting minutes dated 08.05.2025 shows
that another bidder, Starcon Infra Projects India Private Ltd. had it's
Technical Bid rejected, on the same ground as that of the petitioner.
19. The requirement of the State respondents and the interpretation as to
what is required in relation to a term and condition of the tender document,
is best known to the author of the same. When the State respondents have
required the performance of a bidder to be provided and the same had
been done by the petitioner in one Work Completion Certificate, there was
no reason for the petitioner not to have submitted the second Work
Completion Certificate in the same manner as it had done in the earlier
document. As such, this Court does not have any reason to come to a
different reasoning than that of the author of the tender. Exercise of power
of judicial review in a contract/tender matter can be done if the approach of
the State respondents is arbitrary or mala fide or is meant to favour some
bidder. However, where a decision is taken in consonance with the language
of the tender document and subserves the purpose for which the tender is
floated, this Court would have to restrain itself from interfering with the
same, especially when there is no arbitrariness shown, keeping in view the
decisions of the Supreme Court. The author of a tender has to be allowed to
carry out the purpose for which Annexure-20A.13.2 Clause 2(i) of the bid
document has been put in the tender. The reasons for putting the same
Page No.# 13/15
which is be scrutinized by technical experts should not be tinkered with, just
because a different interpretation or understanding of the tender
conditions/documents may be possible or can be made. Thus, this Court
does not find any ground to interfere with the decision taken by the
respondent authorities, especially, when the decision of the State
respondents do not appear to be unreasonable and as it is not
discriminatory. There is also nothing to show that the decision taken by the
respondents is against public interest or has been made with the object of
favouring a particular bidder.
20. In view of the reasons stated above, this Court does not find any
ground to exercise it's discretion in the present case. The writ petition is
accordingly dismissed."
27) The learned senior counsel for the appellant had submitted that
the acceptance of the tender submitted by the respondent no. 7 was vitiated by
certain anomalies, which are morefully referred to in paragraph nos. 8 and 9
above. However, it is noticed that the said points was not urged before the
learned Single Judge. This being an intra-court appeal, the Court is of the
considered opinion that the issue having not been raised before the learned
Single Judge, cannot be raised for the first time in appeal. Be that as it may, the
learned DSGI had responded to the point urged by justifying the acceptance of
the tender of the respondent no.7, which in the considered opinion of the Court,
cannot be said to have vitiated the decision making process for rejection of the
bid submitted by the appellant during technical evaluation of the tender.
28) In the case of National High Speed Rail Corporation Ltd. v.
Montecarlo Limited & Anr., (2022) 6 SCC 401 , the Supreme Court of India has
held to the effect that the Court, before interfering in a contractual matter in
exercise of powers 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
Page No.# 14/15
relevant law could have reached"?; and (ii) whether public interest is affected?
On the hereinbefore referred two parameters, the Court does not find any
material to answer both the hereinbefore referred queries in the negative and in
favour of the appellant.
29) In light of the discussions above, as the Court has not been able
to draw a conclusion that the action of the tendering authority in rejecting the
bid submitted by the appellant during technical evaluation to be arbitrary, illegal,
discriminatory and/or unfair, the case of Banshidhar Construction Pvt. Ltd.
(supra) does not come to the aid of the appellant.
30) Thus, in light of the discussions above, the two points of
determination is answered in the negative and against the appellant by holding
that (a) the action of the State respondents in rejecting the tender of the
petitioner cannot be held to be arbitrary; and (b) resultantly, the action of the
State respondents in awarding the tender contract to the respondent no. 7 also
cannot be said to be arbitrary.
31) This Court, in the case of Assam State Electricity Board v. Sri
Surya Kanta Roy, (1994) 1 GLR 383: (1993) 0 Supreme(Gau) 190 (para-4) , had
examined the point as to when interference with the order passed by the
learned Single Judge is called for in intra-court appeals and it was held 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. The said principles is required to be
followed in the present case in hand also because the decision making process,
in the present case in hand, cannot be said to be arbitrary or capricious.
32) At the cost of repetition, it is reiterated that though the format of
Page No.# 15/15
performance guarantee has not been provided by the tendering authority, yet,
the appellant has failed to provide performance certificate as required in the
above referred Clause 2.(i) of Annexure 20.A.13.2 of the Bid Document.
Accordingly, the rejection of the appellant's technical bid on account of non-
submission of the performance certificate cannot be said to be hit by the
Wednesbury's principles of reasonableness. The absence of a format does not
do away with the requirement of a tenderer to provide the required information.
33) Thus, the judgment and order dated 19.05.2025, passed by the
learned Single Judge in W.P.(C) No. 2563/2025, thereby dismissing the writ
petition is not liable to be interfered with.
34) Accordingly, this intra-court appeal fails and thus, dismissed,
leaving the parties to bear their own cost.
JUDGE JUDGE
Comparing Assistant
