WP(C)/27986/2026 of MUKTESWAR NAIK Vs STATE OF ODISHA on 2 September 2026

J U D G M E N T

---------------------------------------------------------------------------------- Date of Hearing and Judgment: 2nd September, 2026 ----------------------------------------------------------------------------------

HARISH TANDON, CJ.

1. The ascertainment of the meaning and the intention of the tender floating authority to various clauses incorporated in the tender document, in recent time have gained momentum by filing WP(C)/27986/2026 ODHC010655602026 2026:OHC:110-DB

frequent litigations assailing the decision of the tender committee in rejecting the bid of an intending bidder mostly at the technical bid stage.

2. In most of such litigations, the decision of the tender committee in rejecting the bid at the technical bid stage are assailed either on the premise that the ground on which it is so founded is not mandatory or ancillary and supplemental to the essential conditions embodied in the tender document. The instant case is one of such examples where the bid submitted by the petitioner is rejected by the tender committee for non-submission of the affidavit regarding No Litigation Certificate (NLC) as per Clause No.1.2.6 of the Instruction to Bidders (ITB) of the Detailed Tender Call Notice (DTCN).

3. Bereft of unnecessary details and to address the core issue involved in the instant writ petition, the salient features emanating from the record would be profitable to recapitulate. The notice inviting tender for road works in Odisha through a national competitive bidding by e-Procurement was published on 14.05.2026 for construction of various roads in Boudh district, aggregating to 32 in number, wherein the petitioner offered for serial number 25 i.e. construction of RD Road to Machhibandha road in the district of Boudh under MMSY-PoWaR for the year 2026-2027. Obviously, the eligibility criteria enshrined in the said DTCN is restricted to an A Class Contractor of the Odisha PWD or a relevant class of other licensing authorities, Special Class Contractor and Super Class Contractor respectively. Pursuant to the said advertisement, the petitioner submitted his bid for the aforementioned work and since the tender process is divided into two parts, namely, Technical Bid and Financial Bid, the evaluation of the bid so submitted by the intending bidders, to be eligible for Financial Bid, has to pass the muster of the Technical Bid Stage. The said DTCN, which comprises several pages, contains a most important document relating to the ITB. The said ITB engulfs within itself several steps and the documents to be submitted along with the bid including an affidavit regarding NLC under Clause 1.2.6.

4. According to the petitioner, mere non-submission of an affidavit regarding NLC does not entail the bid to be rejected at the technical bid stage as it is ancillary to the essential conditions and in absence of any consequences provided therefor, the authorities cannot take a pedantic view in rejecting the bid submitted by the petitioner at the technical bid stage. Mr. Sukanta Kumar Dalai, learned counsel appearing for the petitioner, submits that in the event, an adherence to some clauses can be perceived as fatal, it must have nexus to essential condition of eligibility, and placed reliance upon a judgment of the Apex Court rendered in Poddar Steel Corporation v. Ganesh Engineering Works reported in 1991

(3) SCC 273. Mr. Dalai further submits that in the event the document appears to be incomplete or certain clarification is required by the tendering authority in relation to a bid submitted by the intending bidder, the authorities cannot proceed to reject the said bid at the technical bid stage without taking recourse to the clarificatory clause and in the event such action is found in deviation therefrom, there is no fetter on the part of the writ Court to interfere in such administrative decision as held by the Division Bench of this Court in M/s. Jagadamba Packaging Pvt. Ltd., v. Union of India (W.P.(C) No.9446 of 2010, decided on 17.08.2010). Mr. Dalai arduously submits that in the event certain things are not expressly and/or explicitly indicated in the tender document, the authorities cannot proceed to reject the bid at the technical bid stage treating the same to be a part of the tender document and placed reliance upon another Division Bench judgment of this Court in the case of M/s. Rosmerta Technologies Ltd., v. State of Odisha (W.P.(C) No.7776 of 2024, decided on 18.06.2024). He, thus, submits that mere non-submission of the affidavit with regard to NLC does not touch upon the essential eligibility criteria and, therefore, the order rejecting the bid at the technical bid stage warrants interference and liable to be quashed and set aside.

5. Per contra, Mr. Debashis Tripathy, learned Additional Government Advocate representing the State-opposite parties submits that the ITB is an integral part of the tender document, which every intending bidder must strictly follow, and in the event, there is any discrepancy or non-observance of any of the conditions incorporated therein, the tender committee has no other option but to reject the said bid. He submits that the tendering authorities have acted uniformly and rejected the bids which were found deficient, having not followed any of the conditions mentioned therein and, therefore, such action cannot be impeached on the ground of discrimination. He further submits that the authority floating the tender has a freedom to incorporate any reasonable conditions and once the decision is taken strictly in conformity with such conditions, the writ Court should be slow in interfering with such administrative decision, and placed reliance upon a judgment of the apex Court in case of Agmatel India Pvt. Ltd. v. Resoursys Telecom reported in (2022) 5 SCC 362. Mr. Tripathy further submits that in the event, the intending bidder does not submit the essential documents and consequences has also been provided therein, any dispensation would tantamount to a discriminatory act as well as in contravention to the essential conditions, and placed reliance upon an order of this Bench rendered in Mahavir Infra-Developers (P) Ltd., Bhubaneswar v. State of Odisha (W.P.(C) No.18651 of 2026, decided on 12.08.2026). He, thus, submits that several bids of the intending participants were rejected in a uniform manner for non-submission of the No Litigation Certificate and, therefore, the action of the authority cannot be tainted as discriminatory.

6. The facts succinctly narrated hereinbefore are somewhat undisputed as the gamut of dispute is primarily founded upon non- submission of the affidavit regarding NLC being one of the conditions enshrined in ITB. The said ITB is an essential ingredient of the tender document and there is no ambiguity in perceiving that it forms an integral part of the same. The public procurement by the Government in awarding the work is not only to receive a competitive price but the process by which it is so undertaken must withstand on the equal opportunity principle akin to a level playing field. The primary object is to ensure fairness, transparency and equal opportunity to all eligible entities to enter into a contract with the Government. It also eradicates the sense of any arbitrariness, discrimination and a bias approach in entering into a public contract, which are the essential facets of public dealing.

7. The question often arises in relation to a meaning to be assigned to various clauses of the tender document and its applicability in specified sphere. The decision rendered in Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited reported in (2016) 16 SCC 818 can be gainfully applied in the perspective of gathering an intention of author of the document in order to understand and appreciate its requirement in the following:

“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.”

8. In Bharat Coking Coal Ltd. v. AMR Dev Prabha reported in (2020) 16 SCC 759, the Apex Court succinctly noticed the interpretative tools to be used in judicial parlance between the contract in a commercial field and the interpretation of the statute. It is highlighted that the author of the tender document is the best person to appreciate their requirements and also to interpret different clauses incorporated therein.

9. The scope of the judicial review in an administrative action is limited to ensure non-arbitrariness, irrationality, unreasonableness, bias and a mala fide approach having taken by the author of the tender document and not to substitute its view on the possibility of another interpretation. In Jagdish Mandal v.

State of Orissa reported in (2007) 14 SCC 517, the Apex Court held 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 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.”

10. The judgment of the Apex Court in Montecarlo Ltd. v. NTPC Ltd. reported in (2016) 15 SCC 272 can be profitably applied, wherein it is held that in the event the Court finds the action of the administrative authority is apparently in consonance with the language used in these various clauses of the tender document, it subserves the purpose for which the tender is floated, and the Court should be slow and circumspect in interfering with such administrative decision, in the following: “26. We respectfully concur with the aforesaid statement of law. We have reasons to do so. In the present scenario, tenders are floated and offers are invited for highly complex technical subjects. It requires understanding and appreciation of the nature of work and the purpose it is going to serve. It is common knowledge in the competitive commercial field that technical bids pursuant to the notice inviting tenders are scrutinised by the technical experts and sometimes third-party assistance from those unconnected with the owner's organisation is taken. This ensures objectivity. Bidder's expertise and technical capability and capacity must be assessed by the experts. In the matters of financial assessment, consultants are appointed. It is because to check and ascertain that technical ability and the financial feasibility have sanguinity and are workable and realistic. There is a multi-prong complex approach; highly technical in nature. The tenders where public largesse is put to auction stand on a different compartment. Tender with which we are concerned, is not comparable to any scheme for allotment. This arena which we have referred requires technical expertise. Parameters applied are different. Its aim is to achieve high degree of perfection in execution and adherence to the time schedule. But, that does not mean, these tenders will escape scrutiny of judicial review. Exercise of power of judicial review would be called for if the approach is arbitrary or mala fide or procedure adopted is meant to favour one. The decision-making process should clearly show that the said maladies are kept at bay. But where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.”

11. In Agmatel India Pvt. Ltd. (supra), the Apex Court was considering a case where the expression “same and similar category of products” came up for interpretation in the perspective of manufacturing of a tablet and the requirement of a smart phone. It was sought to be argued that they are same and of similar category of the product, and therefore, the decision of the authority in rejecting the bid warrants interference. In the backdrop of the above, the Apex Court held as under: “28. In relation to the contention that the tender inviting authority was the best judge to interpret the conditions of tender and the Court should not interfere, the High Court referred to an observation by this Court in Reliance Energy [Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1] that when tenders are invited, terms and conditions must indicate norms and benchmarks with legal certainty. In that case, the said observations came in the backdrop of the facts that in the eligibility conditions of the tender before the Court, one of the criteria had been of the consortium net cash profit of Rs 200 crores but, the State had not specified the accounting norms with clarity for calculation of net cash profit; and one of the two acceptable methods of calculation of net cash profit was not taken into account without any reason. In the given facts, the decision of the authority concerned was found to be arbitrary, whimsical and unreasonable.

29. The said decision in Reliance Energy [Reliance Energy Ltd. v. Maharashtra State Road Development Corpn. Ltd., (2007) 8 SCC 1] has no direct application to the facts of the present case and even otherwise, it has not been the finding of the High Court that the term stated by the tender inviting authority—NVS was lacking in certainty. However, beyond this, as to which particular product was to be treated as similar category product, could not have been a matter of interpretative exercise by the Court, particularly when the view taken by the tender inviting authority and its Evaluation Committee has not been shown to be absurd or irrational or suffering from mala fides.

30. It has also rightly been pointed out by the appellants, with reference to the decision in Afcons Infrastructure [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818] (as extracted in the quotation hereinabove), that an interpretation by owner or employer of a project to the tender document may not be acceptable to the constitutional courts but that, by itself, would not be a reason for interfering with the interpretation given. In the aforesaid view of matter, the long-drawn exercise by the High Court on the dictionary meaning of the words and on semantics, in our view, had been entirely unnecessary.

31. The High Court has even proceeded to find the elements of similarity between “smartphones” and “Tablets” (vide para 30 of the impugned order [Resoursys Telecom v. Navodaya Vidyalaya Samiti, 2021 SCC OnLine Del 4532] ). The writ petitioner has also made elaborate submissions to suggest that

“smartphones” and “Tablets” are of similar category. The respondents, per contra, have also made detailed submissions that these two products are neither the same nor of similar category. In our view, an elaborate and in-depth analysis of the features and categorisation of these two products is not called for but, for the reason that the High Court has adopted such a course, a few comments on this aspect would also be apposite.”

12. Prior in time, the Apex Court in Poddar Steel Corporation (supra) was considering a case where the appellant therein, did not deposit a sum of Rs.50,000/- as earnest money in terms of the clause contained in the said tender call notice. The condition stipulated that the said earnest money must be deposited through a Banker’s Cheque issued by the State Bank of India whereas the same was deposited through a Banker’s Cheque of the other bank. In the backdrop of the above, the Court made a distinction between the essential conditions of the eligibility with the ancillary and subsidiary conditions. It was ultimately held that since the compliance appears to be a substantial one, the rejection cannot be said to be proper, in the following: “6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance

deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories — those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in C.J. Fernandez v. State of Karnataka [(1990) 2 SCC 488] a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India [(1979) 3 SCC 489] but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs.”

13. The reliance placed upon the Division Bench judgment of this Court in M/s. Rosmerta Technologies Ltd. (supra) by Mr. Dalai can be distinguished in the sense that before submission of the bid, the intending bidder had raised an objection to the incorporation of the said clause relating to the affidavit in the form of No Litigation Certificate, contending the same to be onerous, arbitrary, capricious having no relevance to the purpose of the tender. The aforesaid objection was also raised at the pre-bid meeting and without disposing of the representation, the time was extended for submission of the bid upon issuance of the corrigendum, and ultimately, the said bidder approached the Court by filing a writ petition, which was disposed of by directing the authorities to consider the representation within a specified time. The said representation was disposed of by upholding the said clause, which was further challenged by filing another writ petition, which came to be disposed of by directing the authorities to consider the representation in the proper perspective. It further appears from the said judgment that the authorities had also rejected the bid submitted by the petitioner being not in conformity with the clause providing the bid processing fees to be Rs.10,000/-, to be deposited, as the petitioner did not submit the GST component of Rs.1,800/-. The Court after quoting the relevant clause did not find the requirement of deposit of the GST component and held that since the petitioner was constantly raising an issue on the aforesaid clause, and in fact, earlier two writ petitions were disposed of in such line, the rejection of the bid on such count cannot be sustained, in the following: “57. Now we come to question (D) as formulated above. It has not been disputed that the petitioner has history of litigation/arbitration. The petitioner, therefore, suffered from fundamental disqualification because of the pre-qualification condition at Sl.No.23 of Table-2- read with Form (S) of the RFB. This was the reason why the petitioner was challenging the said clause from the very beginning when the RFB was issued by raising issues before the authorities and by filing the writ petitions in this Court. The said requirement at Sl.No.23 of Table-2 read with Form (S) being mandatory as is evident from the unambiguous language used in Form (S), the petitioner stood disqualified, also because of filing of two writ petitions before this Court, other than the present one and it could have been declared disqualified, accordingly, without evaluating the technical bid. Knowing well the litigation history of the petitioner who had filed two cases before this Court in relation to the RFB in question, the Technical Evaluation Committee proceeded to evaluate the bid submitted by the petitioner. Curiously, the opposite parties did not hold the petitioner disqualified by invoking the pre-qualification condition at Sl.No.23 of Table-2 read with Form (S) and disqualified it on the ground that it had not paid a sum of Rs.1,800/- of GST in addition to the bid processing fee of Rs.10,000/-. This is an undisputed fact that the petitioner had deposited the earnest money of Rs.80,00,000/- and the bid processing fee of Rs.10,000/- on the last date of submission of the bid. The said amounts have been accepted as „success‟ transaction by the system. We ponder, had it been otherwise, the payment in this regard would not have shown „success. It leads to a peculiar situation where, had the petitioner‟s bid been rejected on the ground of dis-qualification in view of the pre-qualification condition, which has been held to be not only arbitrary but also unconstitutional by us, there would have been no impediment for him to participate if a fresh notice was issued by the State Government upon deleting the said pre-qualification condition (Sl.No.23), in view of their own stand. We agree with the submission advanced on behalf of the opposite parties that the condition of payment of bid processing fee plus applicable tax was an essential condition in view of the clear stipulation in clause 2.9(c) that a bid not accompanied by a bid process fees as per RFB shall be construed as non-compliant bid and shall be summarily rejected. However, equally essential condition was submission of a declaration in Form (S), which laid down the pre- qualification condition.”

14. In M/s. Jagadamba Packaging Pvt. Ltd. (supra), the Court was considering para 6.17 of the tender document, which provides for a scrutiny of the tenders as to whether they are complete in all respect and classified the incomplete offers into two categories— (A) relates to the compliance of the essential conditions of the tender though some other details may be missing; and (B) a complete non-adherence of the essential conditions. It was held that those which are mere clarificatory in nature though the substantial compliance has already been made, it would not be proper on the part of the authority to reject the tender as a whole but should invite the attention of the bidder to make good by way of a clarification.

15. We do not find any quarrel to the proposition that once the clause relates to a clarification to be sought when all the essential conditions are fulfilled, the rejection of a bid at the technical bid stage is not proper. There is apparent distinction between a non- compliance of the essential conditions and non-compliance of ancillary or subsidiary conditions. In the event the tender document makes it galore that certain documents should form part of the bid document and the consequences for its non-adherence is also provided, it renders those conditions as essential. The ITB manifestly indicates the nature of the documents to be uploaded in the PDF format, which includes the affidavit regarding the NLC and the consequence is also provided in the nature of rejection at the technical bid evaluation stage. The moment the consequence is provided, the authority cannot depart therefrom. In the event the deficiency is noticed as any of the following documents was not included, it hardly makes any room for the authorities to whittle down such consequences. It is a cardinal principle of law that once a thing is required to be done in a particular manner, it has to be done in such manner and not otherwise.

16. Since the petitioner has not complied with such essential condition, which provides a consequence of rejection at the technical bid evaluation stage, we do not find any incongruity, illegality and/or infirmity in the decision of the authority in rejecting the bid of the petitioner.

17. The writ petition is devoid of merit and, thus, is dismissed. No order as to costs.

(Harish Tandon)

Chief Justice

(Chittaranjan Dash) Judge

M. Panda Digitally Signed Signed by: MRUTYUNJAYA PANDA

Reason:

Authentication Location: High Court of Orissa, Cuttack Date: 10-Sep-2026 17:54:45 Signature Not Verified