WA 166/2009 14BEFORE HON’BLE THE CHIEF JUSTICE MR J CHELAMESWAR HON’BLE MR JUSTICE IA ANSARI Aggrieved by judgment dated 5-6-09 of a learned Judge of this Court in WP(C) No. 5528/08 the unsuccessful petitioner preferred the present appeal. 2. The petitioner is a proprietary concern. The first respondent is a public limited company. The 2nd and 3rd respondents are the officers of the s aid company. The first respondent published a notice dated 16-2-08 inviting seal ed tenders from reputed and experienced contractors for unloading of bamboo/wood from wagons and shifting the same to the respondent’s premises. The bid of the tenderers is required to be in two parts - (1) technical bid and (2) price bid, in two separate sealed covers. 3. Five tenderers responded to the notice, including the appellant. The appellant and the 4th respondent are the two of the above five tenderers. 4. As to the proceedings subsequent to receipt of the tenders the l earned Judge recorded his findings at para 7 of the judgment at follows :- 7. The petitioner claims to be a reputed proprietorial firm and submitted i ts tender in terms of the aforesaid NIT. After opening the tender documents, th e concerned authority prepared a comparative statement of the Techno Commercial Bids and forwarded the same for technical scrutiny. The tender committee scrut inized the tenders of all the 5 tenderers and after such scrutiny, technical rec ommendation was accorded in favour of the petitioner as well as respondent No.4 and was placed for further deliberation. The matter was, thereafter, referred t o finance department to consider the financial soundness of the tenderers and in turn it recommended to open the price bid of both the petitioner and respondent No.4 as per its note dated 13/5/08. The matter was, thereafter, further placed before the Internal Audit department of the Corporation. The Internal Audit de partment, however, not having found applied the same yardstick as regards the co nsideration of the related tenders submitted by both the tenderers, they were as ked to follow the same vide note dated 10/6/08. After consideration in details by the Internal Audit department, it was noticed that there were some deviation in the tender submitted by the petitioner which may lead to its disqualification and the Internal Audit department opined that the Techno Commercial Bid of both the petitioner and respondent No.4 were found to be disqualified, but by the sa me note it also intimated for obtaining necessary legal opinion. In terms of the said note, legal opinion was sought for in respect of ac ceptability of the tender of the petitioner. The said opinion so furnished disc lose that the respondent No.4 has not fulfilled the NIT conditions and submitte d the bid without complying with Clause-9 of the general terms and conditions of the contract. So far the deviation in respect of the petitioner is concerned i t was pointed out that in the documents submitted by the petitioner along with t he tender it endorsed a stamp of M/s Shivam Syndicate wherein the petitioner wa s also a partner and he did not put the required stamp in all the pages. It was opined by the legal expert that the intention of the Bidder appears to be clear , but the deviation was there and taking into consideration of the matteris in i ts entirety, the deviation is stated to be a minor one. Being minor deviation w as appeared in the tender; the legal opinion was given in favour of the petition er. It is to be noted herein that in view of the deviation noticed in the te nder submitted by the petitioner, a show cause notice dated 14/8/08, was issued to the petitioner asking such clarification and in its reply dated 19/8/08, the petitioner has admitted such deviation with certain explanation. Thereafter, th e matter was finally placed before the Chief Executive of the Corporation. Refe rring to the aforesaid anomalies in respect of the tender submitted inasmuch as the tender committee could not arrive in any final decision in view of the confl icting opinion relating to the suitability of the tender submitted by the respon dent No.4 as provided by the Internal Audit department as well as that of the le gal expert. Thereafter, the Chief Executive, Nagaon Paper Mill referred the mat ter to the CHQ vide note dated 30/7/08. 5. Eventually, a decision was taken not to proceed with the tenders of either the petitioner/appellant or the 4th respondent but to issue a notice afresh inviting tenders. 6. Challenging the said decision to invite fresh tenders the instan t writ petition came to be filed and by the judgment under appeal a learned Judg e of this Court dismissed the said writ petition. 7. Mr AK Bhattacharyya, learned counsel for the appellant relied on three decisions of the Supreme Court in support of his submission that the judg ment under appeal is erroneous and contrary to the law laid down by the Supreme Court in the above mentioned three judgments. The judgments relied on by the lea rned counsel are - (1994) 6 SCC 651, (2006) 11 SCC 548, (2006) 11 SCC 67 and AIR 2008 SC 1300. 8. In (1994) 6 SCC 651 it was a case which dealt with the decision of the Department of Telecommunication, Govt of India in selecting the licencee for operation of cellular mobile telephone service in four major cities of India , namely, Delhi, Bombay, Calcutta and Madras. The Department short listed eight of the thirty tenderers who responded to the notice. Two companies, which were e xcluded from consideration by the departmental authorities, were directed to be considered by the concerned minister. In the light of the said decision of the m inister one of the companies, initially excluded by the department, came to be s elected. It was the said selection which was the subject matter of decision befo re the Supreme Court. Coming to (2006) 11 SCC 548 the facts are as follows - Maharasht ra State Electricity Board invited tenders. The appellant and the third responde nt before the Supreme Court were among the tenderers. The appellant before the S upreme Court became the successful tenderer. One of the respondents before the S upreme Court challenged the decision of the electricity board in choosing the ap pellant before the Supreme Court on the ground that the appellant did not satisf y some of the conditions prescribed under the notice inviting tender. Coming to (2006) 11 SCC 67 the issue before the Supreme Court wa s the constitutional validity of Regulation 13 of the Indian Airlines (Flying Cr ew) Service Regulations. In AIR 2008 SC 1300 the Supreme Court dealt with the issue regar ding proportionality of punishment in the background of the following facts - An employee of the State of Madhya Pradesh was convicted for an offence u/s 323 read with Sec 34 of the IPC and sentenced to undergo one months simple imprisonment. In the background of such conclusion the employer terminate d the service of the employee. The proportionality of such a decision to termina te the employment fell for consideration of the Supreme Court. 9. None of the above cases, relied upon by the learned counsel for the appellant, relate to a decision of the State or its instrumentalities to can cel a tender notice issued by the State or its instrumentalities and issue a fre sh tender notice. In the circumstances, the reliance on the above mentioned deci sions, in our view is wholly misplaced. 10. The decision of the State or its instrumentalities to cancel a t ender notice and invite fresh tender, in our view, cannot be interfered with exc ept on the ground that such a decision was a mala fide decision. In the instant case no specific facts or particulars could be pleaded or established by the app ellant of mala fide against any of the respondents. 11. In the circumstances, we do not see any merits in the appeal whi ch call for interference with the judgment under appeal. The appeal is, therefor e, dismissed at the admission stage.