Orissa High Court
Mythri Infrastructure And vs The Managing Director on 31 March, 2026
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.1134 of 2026
In the matter of an Application under Articles 226 & 227
of the Constitution of India, 1950
***
Mythri Infrastructure and
Mining India Private Limited
Represented through its
Managing Director
Sri Tella Srinivasa Rao
About 58 years
Son of Late Tella Veeraiah
Residing at: D. No. 50-117-17, NE Layout
ASR Nagar, Visakhapatnam – 530 013
Andhra Pradesh. … Petitioner
-VERSUS-
1. The Managing Director
Odisha Mining Corporation Limited
OMC House, Bhubaneswar – 751 001
Odisha.
2. The Chief General Manager (Mining)
Odisha Mining Corporation Limited
OMC House, Bhubaneswar – 751 001
Odisha. … Opposite Parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Vikas Singh, Senior Advocate
Assisted by
Mrs. Subhashree Sen,
Ms. Deepika Kalia and
Mr. Ajit Parija, Advocates.
W.P.(C) No.1134 of 2026 Page 1 of 88
For the Opposite Parties : Mr. Sanjit Mohanty,
Senior Advocate
M/s. Pravat Kumar Muduli,
Ipsit Aurobindo Acharya and
Chandan Kumar Rout,
Advocates.
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
ANDHONOURABLE JUSTICE
MR. MURAHARI SRI RAMANDate of Hearing : 05.02.2026 :: Date of Judgment : 31.03.2026
J UDGMENT
MURAHARI SRI RAMAN, J.–
Flagging arbitrariness in issue of Tender Cancellation
Notice dated 05.01.2026 (Annexure-10), whereby the
tender floated vide RfP No.193/OMC/P&T/2025, dated
03.11.2025 and e-Tender No.OMC/25-26/ET/3 by M/s.
Odisha Mining Corporation Limited for Selection of Mine
Operator for Kodingamali Bauxite Mine in the district of
Koraput and Rayagada in the State of Odisha through
Reverse Auction Bidding Process has been cancelled
after the petitioner emerged as successful bidder upon
opening the technical as well as the price bids, and
W.P.(C) No.1134 of 2026 Page 2 of 88
undertaking reverse auction bidding process, the instant
writ petition has been filed beseeching to invoke power of
judicial review under Article 226 of the Constitution of
India to grant following relief(s):
“It is therefore humbly prayed that this Hon‟ble Court may
graciously be pleased to admit this writ petition, issue
Rule NISI in the nature of a writ of Certiorari calling upon
the opposite parties to show cause as to why the present
petitioner shall not be allowed by setting at naught the
Tender Cancellation Notice dated 05.01.2026 as under
Annexure-10;
And further as to why, the opposite parties shall not be
directed to issue work order to the Petitioner in pursuance
to tender process with respect to tender No.RfPNo.
193/OMC/P&T/2025 dated. 03.11.2025 & e-Tender No.
OMC/25-26/ET/3 floated for Selection of Mine Operator
in respect of Kodingamali Bauxite Mine in the district of
Koraput and Rayagada, Odisha;
And if the opposite parties fails to show cause or show
insufficient cause the RULE be made absolute and
consequently the policy of the opposite parties in
cancelling the tender process thereby nor issuing the work
order be quashed as being arbitrary and against public
interest;
And be further pleased to pass any such other and order
as would be deemed fit and proper under the facts and
circumstances of the present case;
And for this act of kindness of this Hon‟ble Court, the
petitioner shall as in duty bound ever pray.”
W.P.(C) No.1134 of 2026 Page 3 of 88
Facts:
2. Shorn off unnecessary narration of facts as adumbrated
in the writ petition, the following facts are culled out to
appreciate the merit of contentions of respective parties.
2.1. The opposite parties-Odisha Mining Corporation Limited
(for brevity, ―OMC‖) awarded a contract (NIT No.149,
dated 18.05.2017) to the petitioner’s erstwhile
partnership firm. The work was formalized by issue of
LoA No. 14029 dated 25.09.2017 and execution of
Agreement No.12 dated 27.12.2017. After the petitioner’s
company, M/s. Mythri Infrastructure and Mining India
Pvt. Ltd. was incorporated in 2019, it seamlessly took
over and executed the Kodingamali Bauxite Mine work.
The petitioner continuously performed the work
entrusted by the OMC for eight years (2017-2025) and
completed work valued at nearly Rs.486 Crores
(excluding escalation and GST).
2.2. M/s. OMC Ltd. floated open tender vide RfP (Request for
Proposal) No.193/OMC/P&T/2025 dated 03.11.2025; e-
tender No.OMC/25-26/ET/03, dated 03.11.2025. The
peak rated target was fixed at 35 Lakhs MT per year for
a period of five years and extendable for another three
years. Last date of submission of bid was fixed on
25.11.2025 at 5:00 P.M. The bid document was made
available to the intending bidder at Rs.1,18,000/-. A
W.P.(C) No.1134 of 2026 Page 4 of 88
Portal was opened for the said purpose which was
allowed to download the tender documents by the
intending bidder, from 04.11.2025.
2.3. On 15.11.2025 OMC issued a corrigendum to RfP dated
03.11.2025, modifying scheduled date and time and
fixed on 27.11.2025, 5 P.M. On 27.11.2025 the RfP
dated 03.11.2025 suffered another corrigendum whereby
the bid date, time, etc. were rescheduled and fixed on
04.12.2025, 5 P.M. On 04.12.2025, in pursuance to the
RfP, dated 03.11.2025 and as per subsequent
corrigendum, the petitioner submitted online tender in
MSTC Portal and submitted hard copy of tender
documents by hand at the Office of M/s. OMC on
05.12.2025. The petitioner submitted the entire tender
documents.
2.4. As per the schedule, technical bid was opened on
06.12.2025 and after technical evaluation being
undertaken on 15.12.2025, the petitioner was found
eligible along with one M/s. Kalinga Commercial
Corporation Limited. On 08.12.2025 the bid documents
were evaluated, and the petitioner was advised to cure
the shortcomings/defects pointed out. The resubmission
of the final documents was fixed on 15.12.2025 by 5
P.M. Responding to receipt of letter dated 08.12.2025
from OMC regarding queries/shortfall of documents, the
petitioner submitted clarification on 11.12.2025 and
W.P.(C) No.1134 of 2026 Page 5 of 88
furnished list of related parties as required under
Clauses 4.1.18 and 4.1.19 of bid documents and EPF.
2.5. The price bid was opened on 16.12.2025 at 5 P.M and it
was found that the present petitioner having quoted
price at Rs.252/MT became the lowest bidder as M/s.
Kalinga Commercial Corporation Limited had quoted a
price more than the price quoted by the petitioner’s
Company.
2.6. However, in order to have dynamic and further
negotiable bid price, reverse auction bidding process was
undertaken. Thus the Senior Manager of OMC sent a
mail 6.30 P.M. inviting the petitioner to participate in
demo reverse auction. It is specifically mentioned in the
mail that the online Reverse Auction Bidding Process
would be commenced on 17.12.2025 from 12 P.M. to 2
P.M. on the MSTC portal. For the purpose of demo on
Reverse Auction Bidding Process, the portal was opened
at 11.30 A.M. to 12 P.M. on 17.12.2025. The petitioner
participated. The online reverse auction price negotiation
was initiated at scheduled time between 12 P.M. to 2
P.M. on 17.12.2025, and it went on till early morning of
18.12.2025. When the reverse auction started, the first
bid was given by M/s. Kalinga Commercial Corporation
Limited. Accordingly, when the reverse auction went on,
the last bid was of the petitioner’s, i.e., Rs. 132.50/- per
MT, whereas it is Rs.133/- per MT of Kalinga
W.P.(C) No.1134 of 2026 Page 6 of 88
Commercial Corporation Limited. Hence, the latter could
not out-bid the petitioner and withdrew from the
auction. The petitioner’s bid was the lowest when the
initial bids were taken and was also the lowest when the
reverse auction got finished. Though as stated in the
tender document the opposite parties estimated ceiling
price of Rs.386.88 per MT, the petitioner offered price of
Rs.132.50 per MT as disclosed in the reverse auction.
Thus, it is 65.74% lower than the estimated ceiling price
of the opposite parties, i.e., Rs.386.88. However, the
petitioner as a competitive bidder, has reduced the bid
price so as to put its price lesser than the price put by
the M/s. Kalinga Commercial Corporation Limited. The
entire tender process got concluded after the exploration
and finalization of the lowest bidding price through
reverse auction bidding process among the techno
commercially qualified bidders. Therefore, after having
completed the entire tender process, the petitioner was
entitled to be issued with work order by the OMC.
2.7. When the matter stood thus and the issue of work order
was awaited, it came to the knowledge of the petitioner
by visiting the portal of M/s. OMC that the opposite
parties had issued a Tender Cancellation Notice on
05.01.2026 (Annexure-10).
2.8. The petitioner has approached this Court by way of filing
this writ petition assailing the propriety and legality of
W.P.(C) No.1134 of 2026 Page 7 of 88
such cancellation of the tender after opening the
technical bid, the financial bid and undertaking the
reverse auction bidding process. Such Tender
Cancellation Notice, being bereft of reasons, smacks
arbitrariness in action of the Public Sector Undertaking-
OMC and the approach of the opposite parties-
authorities is illogical and unwholesome.
Counter affidavit filed by the OMC:
3. The tender floated vide RfP dated 03.11.2025 was
reviewed and cancelled by the Chairman of OMC with
the following observations:
A. Tender process vide RFP dated 03.11.2025 was
flawed due to unreasonable restrictive eligibility
condition at Clause 4.1.1 of RfP (relating to ―similar
work‖), which hit the very root of the tender
process, i.e. transparency and protecting loss to the
OMC. Certain specific restrictions in Clause 4.1.1
of RfP (relating to ―similar work‖) benefitted one
particular segment.
B. Certain procedural irregularity like mid tender
relaxations to Clause 4.1.1 of RfP by way of
Corrigendum No.l, dated 15.11.2025 amounts to
post-tender tinkering, vitiates the entire tender
process and compromises the legal tenability of the
outcome of the tender. The condition of 500 TPH
W.P.(C) No.1134 of 2026 Page 8 of 88
crusher requirement at the very beginning of the
tender process at Clause 4.1.1 of RfP was itself
without any basis and arbitrary. Bid-submission
dates were also extended.
C. The cancellation of the tender process, was not an
administrative fiat but was the outcome of a
reasoned review by the Competent Authority, who
on review finding arbitrariness in the tender
process (imposition of restrictive conditions,
arbitrary relaxation of conditions, time extension),
called for cancellation of the tender process.
D. The OMC floated tender for engagement of a Mine
Operator for the Kodingamali Bauxite Mine in
accordance with the applicable rules, guidelines,
and tender conditions. The tender process,
however, progressed only up to the stage of
identification of the lowest bidder (L-1).
3.1. It is sought to be clarified that neither any Letter of
Intent (LoI) nor was any Letter of Award (LoA) ever
issued in favour of any of the Bidders at any point of
time pursuant to RfP dated 03.11.2025. No Agreement
has also been executed with any Bidder at any stage
pursuant to said RfP. Before any further action could be
taken in the tender process like issue of LoI, LoA, etc.,
multiple complaints were received by the OMC allegingW.P.(C) No.1134 of 2026 Page 9 of 88
irregularities in the tender process pursuant to RfP
dated 03.11.2025. Upon comprehensive scrutiny of the
entire tender record at the level of the Competent
Authority, it was found that there existed serious
procedural infirmities which adversely affected the
fairness, transparency and competitiveness of the
Bidding Process and contrary to the settled principles
governing public procurement and tender processes.
Before any right is accrued on the Bidder, bearing in
mind the larger public interest a conscious decision was
taken to cancel the tender.
3.2. It is further affirmed that having right to correct any
error in the tender process at any point of time, there is
no embargo created in the OMC to cancel the tender
process particularly when it is authorised by virtue of
Clause 5.21 of the RfP. Emphasis is laid on the following
clauses of the RfP to justify the action to cancel the
tender:
i. Page 2 of RfP:
"Any further communications, corrigendum/
addendum, etc., will be uploaded on the website of
MSTC and OMC. OMC reserves the right to reject
any or all bids/proposals without assigning any
reasons whatsoever.”
ii. Clause 12 at Page 10 of RfP:
“Disclaimer:
W.P.(C) No.1134 of 2026 Page 10 of 88
***
12. OMC reserves the right in its sole discretion,
without any obligation or liability whatsoever,
to accept or reject any or all of the Bids at any
stage of the Bidding Process without assigning
any reasons. Further OMC reserves the right to
annul the Bidding Process and/or to reject any
or all Bids at any stage prior to the signing of
the Agreement without thereby incurring any
liability to the affected Bidders or any
obligation to inform the affected Bidders of the
groundsl for OMC‟s action. Decision of OMC
shall be final and binding in this regard.””
iii. Clause 5.21, Page 38 of RfP:
“5. Description of the Bidding Process:
***
5.21. Right to Annul Bidding Process:
OMC reserves the right to annul the Bidding
Process at any point in time and without
providing any explanation to the Bidders.”
iv. Clause 9.1, Page 53 of RfP [Annexure-1: Format for
Covering Letter, See Clause 5.11.2(i) of the RfP]:
“9. Right to reject tender:
9.1. OMC reserves the right to accept, negotiate or
reject any Bid and to cancel the Bidding
Process and reject all Bids, at any time prior to
the issuance of Letter of Award, without
thereby incurring any liability to the affectedW.P.(C) No.1134 of 2026 Page 11 of 88
Bidder or Bidders or any obligation to inform
the affected Bidder or Bidders of the grounds
for the OMC‟s action.”
v. Clause 9.12, Page 54 of RfP:
“9.12.OMC, in its sole discretion and without
incurring any obligation or liability, reserves
the right, at any time, to:
(a) suspend and/or cancel the Bidding
Process and/or amend and/or
supplement the Bidding Process or modify
the dates or other terms and conditions
relating thereto;
(b) consult with any Bidder in order to
receive clarification or further information;
(c) pre-qualify or not to pre-qualify any
Bidder and/or to consult with any Bidder
in order to receive clarification or further
information;
(d) retain any information and/or evidence
submitted to OMC by, on behalf of and/
or in relation to any Bidder, and/or
(e) independently or otherwise verify,
disqualify, reject and/or accept any and
all submissions or other information and/
or evidence submitted by or on behalf of
any Bidder.”
vi. Clause 6, Page 65 of RfP:
W.P.(C) No.1134 of 2026 Page 12 of 88
“6. We acknowledge the right of OMC to reject our
Bid without assigning any reason or otherwise
and hereby waive our right to challenge the
same on any account whatsoever.”
vii. Clause 9, Page 66 of RfP:
“9. We understand that OMC may cancel the
Bidding Process at any time and that OMC is
neither bound to accept any Techno-
Commercial Bid that OMC may receive nor to
invite the Bidders to Bid for the Project, without
incurring any liability to the Bidders, in
accordance with Clause 9 of the RfP.”
3.3. It is asserted that conduct of reverse auction bidding is a
part of tender process which never intended to create
indefeasible right in the Bidder to be awarded;
nonetheless, all the stages of the tender process have
not been completed. It is within the domain of the OMC
to cancel the tender prior to issue of LoI or LoA, even the
right is vested in OMC to cancel the tender prior to
execution of the Agreement. A conscious decision to
cancel the tender in question was taken on 05.01.2026
by the Management of OMC on appraisal of entire tender
record (Paragraph 6 of the counter affidavit):
“After post bid evaluation, OMC Management
observed that participation was significantly lower
than anticipated. Upon further examination, it emerged
that the requirement of crushing and screening experience
with at least 500 TPH as technical eligibility criteria at
Claue 4.1.1 of RfP was found to be restrictive, thereby
W.P.(C) No.1134 of 2026 Page 13 of 88
limiting transparency and wider participation in the
tender process.”
3.4. With such background, the opposite parties have
claimed that there was justification for review of the
entire process. In order to maintain transparency and
invite considerable participation in the process, the RfP
dated 03.11.2025 has been cancelled. There being no
irrationality in decision-making process, invocation of
the writ jurisdiction is unwarranted and uncalled for.
Hearing:
4. As the pleadings are completed, the matter involves
tender process for Selection of Mine Operator final
hearing has been undertaken on the consent of the
counsel for the respective parties.
4.1. Heard Sri Vikas Singh, learned Senior Advocate being
assisted by Ms. Subhashree Sen, Ms. Deepika Kalia and
Mr. Ajit Parija, Advocates and Sri Sanjit Mohanty being
assisted by Sri Pravat Kumar Muduli and Sri Ipsit
Aurobindo Acharya, learned Advocate for the petitioner.
4.2. Hearing being concluded, the matter was reserved for
preparation and pronouncement of Judgment.
Arguments advanced by the counsel for the respective
parties:
W.P.(C) No.1134 of 2026 Page 14 of 88
5. Sri Vikas Singh, learned Senior Advocate at the outset
would submit that crushing experience is integral part of
nature of subject-tender. The condition stipulated in RfP
cannot be projected as restrictive. It is submitted that
after financial bid is opened and reverse auction bidding
process is concluded, without assigning any reason
whatsoever, the tender could not have been cancelled.
5.1. It is forcefully argued that a cryptic, bald and
unreasoned order of cancellation of tender cannot be
sustained. Stemming on Shree Ganesh Construction Vrs.
State of Odisha, W.P.(C) No.2656 of 2016, vide Judgment
dated 18.05.2016 [2016 (II) OLR 237]1 and Mohinder
Singh Gill Vrs. Chief Election Commissioner, (1978) 1 SCC
405 it is submitted that in absence of any reason
specified in the order impugned, subsequent explanation
given in the counter affidavit cannot be taken into
consideration.
5.2. It is urged that there is demonstrable misconstruction of
the tender conditions on the part of the opposite parties
and the reason for cancellation of tender being founded
upon speculative expectation of increased participation
or in anticipation of higher price in a fresh tender,
1 The Hon’ble Supreme Court in State of Odisha Vrs. Shree Ganesh Construction,
Special Leave to Appeal (C) No(s). D-41354 of 2016, passed the following Order
on 01.12.2017:
“Heard.
Delay condoned.
The special leave petition is dismissed.
Pending applications, if any, shall stand disposed of.”
W.P.(C) No.1134 of 2026 Page 15 of 88
cannot be held to be tenable. In order to buttress his
argument he cited Shanti Construction Pvt. Ltd. Vrs. State
of Odisha, 2025 SCC OnLine SC 2368; and Golden Food
Products India Vrs. State of Uttar Pradesh, 2026 SCC
OnLine SC 24.
5.3. Sri Vikas Singh, learned Senior Advocate strenuously
submitted that in the reverse auction bidding process
the petitioner has quoted price at Rs.132.50P. per MT;
whereas the other party maintained it at Rs.133/- per
MT. The other party made a complaint with respect to
crushing requirement. It is submitted by the learned
Senior Advocate that the petitioner having already
worked for more than eight years having expertise in the
nature of work in the tender, the OMC could not have
acted whimsically on the objection of an unsuccessful
party who could not bid price beyond Rs.133/-.
5.4. The consideration of objection of M/s. Kalinga
Commercial Corporation Limited by the OMC that
crushing activity could be outsourced is fallacious
inasmuch as the crushing activity is integral part of the
tender which cannot be outsourced. There is embargo
put upon such outsourcing in the tender condition itself.
Drawing attention of this Court to Clause 23.3–
Restriction on Sub-contracting– of Annexure-11 of the
Model Agreement which forms part of Bid Document (as
given in the counter affidavit) it is vehemently contended
W.P.(C) No.1134 of 2026 Page 16 of 88
that the agreement would be terminated in the event the
Mine Operator sublets or sub-contracts any portion of
the work.
5.5. Arbitrariness in action of the opposite parties cannot
shelter them under the anvil of Article 14 of the
Constitution of India.
6. Sri Sanjit Mohanty, learned Senior Advocate commenced
his argument by stating that M/s. OMC has simply
cancelled the tender. It is simpliciter cancellation. The
condition of ―single unit‖ contained in the definition of
―similar work‖ in Clause 4.1.1 set forth in the RfP would
pose as restrictive bidding, which is sought to be
removed for fetching better competition. Therefore, the
action of the tendering authority needs no indulgence of
this Court.
6.1. By cancelling the tender in toto, the OMC seeks to take
away stringent restrictive condition put upon in the
tender to attract more participation; nevertheless, it is
not dispensing with the condition of crushing experience
nor debarring the petitioner to participate in the fresh
tender to be floated. Demonstrating that by a condition
with respect to ―similar work‖ vide Clause 4–
Qualification requirements– of the RfP that ―drilling,
excavation, crushing and screening operation of at least
500 TPH, transportation/hauling of Ore/Waste done as
W.P.(C) No.1134 of 2026 Page 17 of 88
part of a single contract for the considered mineral by
engaging required manpower and machineries‖ has been
substituted by way of corrigendum dated 15.11.2025
that ―Similar Work shall mean drilling, crushing and
screening operation from a single unit of at least 500
TPH‖. The use of the words “single unit” in said clause
attracted less number of participants. In response to
pre-bid queries dated 13.11.2025 against RfP, dated
03.11.2025 it has been clarified that as per Clause 4.1.1
of the Model Tender forming part of the RfP, the tender
condition would prevail. Now by cancelling the tender,
M/s. OMC in order to maintain transparency and to
attract more competitive Bids seeks to remove the
restrictive condition.
6.2. Relying on State of Himachal Pradesh Vrs. OASYS
Cybernatics Pvt. Ltd., 2025 SCC OnLine SC 2536 it is
submitted by Sri Sanjit Mohanty, learned Senior
Advocate that till LoI/LoA is issued and the Agreement is
executed the tender process being not completed, the
authority is vested in the OMC to review and cancel the
tender. In the instant case, the petitioner is not debarred
from participating in the fresh tender.
6.3. Since in the reverse bid difference in price between the
two Bidders (only), namely the present petitioner and
M/s. Kalinga Commercial Corporation Ltd. is only
W.P.(C) No.1134 of 2026 Page 18 of 88
Re.0.50P., the loss can be compensated by inviting more
participants in the fresh bidding process.
6.4. He would submit that the Full Bench of this Court in the
case of Nanda Infra Construction Pvt. Ltd. Vrs. State of
Odisha, W.P.(C) No.5790 of 2024, vide Judgment dated
15.01.2025 [AIR 2025 Orissa 33]2 held that “the opinions
recorded by the Division Benches of this Court in the case
of M/s. Shree Ganesh Construction Vrs. State of Odisha,
2016 (II) OLR 237; Gangadhar Jena Vrs. State of Odisha,
2017 (II) ILR-CUT 763; Sampad Samal Vrs. State of
Odisha, AIR 2017 Ori 33; Sical Logistics Ltd. Vrs.
Mahanadi Coalfields Limited, 2017 (II) ILR-CUT 1035;
Mackintosh Burn Ltd., Kolkata Vrs. State of Odisha,
W.P.(C) No.1309 of 2024, vide Order dated 01.05.2024
[AIROnline 2024 Ori 843]; Bansal Infra Projects Pvt. Ltd.,
Bolangir Vrs. State of Odisha, W.P.(C) No.334 of 2024,
vide Order dated 24.06.2024 do not lay down the correct
law”. He submitted that the case law referred by the
learned Senior Advocate for the petitioner is misplaced
and inapplicable. Expanding his argument further he
submitted that there is no requirement to assign reason
in the Tender Cancellation Notice, but to ascertain the
2 The Hon’ble Supreme Court in Nanda Infra Construction Pvt. Ltd. Vrs. State of
Odisha, Special Leave to Appeal (C) No(s). 10398-10399 of 2025, passed the
following Order on 28.04.2025:
“We are not inclined to interfere with the impugned judgment; hence, the present
special leave petitions are dismissed. However, the finding in the impugned
judgment that reasons need not be brought on record for cancellation of a tender
is an aspect which we deem appropriate to leave open.
Pending application(s), if any, shall stand disposed of.”
W.P.(C) No.1134 of 2026 Page 19 of 88
reason the file noting can be taken into consideration. It
is on the backdrop of Himachal Pradesh Vrs. OASYS
Cybernatics Pvt. Ltd., 2025 SCC OnLine SC 2536
submitted that file notings have significance for the
purpose of exercise of judicial review.
6.5. He therefore fervently requests for dismissal of the writ
petition.
Discussion and consideration of rival contentions and
submissions:
7. Having heard the counsel for the respective parties, the
facts relevant emanate from RfP are that:
i. Clause 4.1: Technical Criteria under the Heading
―Qualification Requirements‖ of RfP dated
03.11.2025 inter alia provided:
“SIMILAR WORK shall mean drilling, excavation,
crushing and screening operation of at least 500
TPH, transportation/hauling of Ore/Waste done as
part of single contract, for the considered mineral by
engaging required manpower and machineries.”
ii. Pre-bid objections/clarification being received on
09/10.11.2025 for modifying the words ―crushing
and screening operation of at least 500 TPH‖ and
on 12.11.2025 with respect to relaxing the
condition of direct experience in ―crushing and
screening operations‖, and similar requests on
W.P.(C) No.1134 of 2026 Page 20 of 88
subsequent dates from different entities intending
to participate in the Bidding, on 15.11.2025 a
corrigendum was issued by extending the schedule
dates with the following:
“Similar work shall mean drilling, excavation,
crushing and screening operation from a single unit
of at least 500 TPH, transportation/hauling of
Ore/Waste done as part of a single contract, for the
considered mineral by engaging required manpower
and machineries.”
iii. It is clarified by the OMC that ―tender conditions
shall prevail‖.
iv. On 06.11.2025 technical bids were opened and out
of four participants, two bidders, namely the
petitioner and M/s. Kalinga Commercial
Corporation Ltd. were found qualified.
v. On 16.12.2025 the price bids were opened and the
petitioner became the lowest bidder and M/s.
Kalinga Commercial Corporation Ltd. remained the
second.
vi. On 17.12.2025 reverse auction bidding process was
undertaken. Whereas the petitioner quoted price at
Rs.132.50P. per MT, M/s. Kalinga Commercial
Corporation Ltd. quoted Rs.133.00P. per MT.
W.P.(C) No.1134 of 2026 Page 21 of 88
vii. On 05.01.2026 the Tender Cancellation Notice was
issued, which stands thus:
“Odisha Mining Corporation Limited
(a gold category State PSU)
(A Government of Odisha Undertaking)Tender Cancellation Notice
Date : 05.01.2026The tender floated vide RfP No. 193/OMC/P&T/
2025 dated 03.11.2025 & e-Tender No.OMC/25-
26/ET/3 floated for Selection of Mine Operator in
respect of Kodingamali Bauxite Mine in the district of
Koraput & Rayagada, Odisha is hereby cancelled.
Sd/-
Chief General Manager
(Mining)”
7.1. Resisting the argument of Sri Vikas Singh, learned
Senior Advocate for the petitioner, the Senior Counsel
appearing for OMC citing Full Bench decision of this
Court rendered in Nanda Infra Construction Pvt. Ltd. Vrs.
State of Odisha, AIR 2025 Orissa 333 submitted that
3 Following conclusion appears at Paragraph 43 of the report:
“43. In view of the above discussion and the decisions of the Supreme Court
referred to above, we answer the questions referred to the Full Bench as
under:
i) While testing the correctness of a purely administrative order
passed by an authority, that is State within the meaning of Article
12 of the Constitution of India, which does not essentially require
recording of any reason and includes an order in the nature of
cancellation of a tender process/notice where a bid has not been
accepted, the observations made by the Supreme Court in
paragraph 8 of the decision in Mohinder Singh Gill Vrs. The Chief
Election Officer, AIR 1978 SC 851, will not have any application.
ii) Before cancellation of a tender notice, there is no requirement of
giving an opportunity of hearing or prior notice to the highest/
W.P.(C) No.1134 of 2026 Page 22 of 88
reasons need not be assigned while notifying
cancellation of tender. For ascertaining the reason,
notings in the file can be looked into. In Subodh Kumar
Singh Rathour Vrs. Chief Executive Officer, AIR 2024 SC
3784 it has been stated thus:
“85. We are of the considered opinion that once a
decision has been officially made through proper
channel, any internal deliberations or file notings
that formed a part of that decision-making process
can certainly be looked into by the Court for the
purposes of judicial review in order to satisfy itself of
the impeccability of the said decision.
***
87. The above observations of this Court fortify our view
that once a decision is made, all opinions and
deliberations pertaining to the said decision in the
internal file-notings become a part of the process by
which the decision is arrived at, and can be looked
into for the purposes of judicial review. In otherlowest bidder, as such bidder does not acquire any vested right to
have the auction confirmed in his/her/its favour on that basis
alone.
iii) When a tender process is cancelled prior to confirmation of tender/
auction in favour of a bidder, the decision of the Supreme Court in
the case of State Of Uttar Pradesh Vrs. Sudhir Kumar Singh,
(2021) 19 SCC 706 is not applicable.
iv) In M/s. Bansal Infra Projects Pvt. Ltd., Bolangir Vrs. State of
Odisha and others, W.P.(C) No.334 of 2024, vide Order dated
24.06.2024 passed in the Division Bench of this Court has not
applied the Supreme Court‟s decision in the case of Sudhir Kumar
Singh (supra) correctly.
v) The High Court while exercising the power of judicial review under
Article 226 of the Constitution of India, cannot direct the State or
its instrumentalities to accept the bid of the lowest/highest bidder
by interfering with the order of cancellation of tender, solely on the
ground of violation of principles of natural justice or on the ground
that the order of is bereft of reasons, except in exceptional
circumstances.”
W.P.(C) No.1134 of 2026 Page 23 of 88
words, any internal discussions or notings that have
been approved and formalized into a decision by an
authority can be examined to ascertain the reasons
and purposes behind such decisions for the overall
judicial review of such decision-making process and
whether it conforms to the principles enshrined in
Article 14 of the Constitution.
88. One another reason why the respondent cannot
claim that its internal file-notings fall outside the
purview of judicial review of the courts is in view of
the inviolable rule that came to be recognized by this
Court in Ramana Dayaram Shetty Vrs. International
Airport Authority of India, (1979) 3 SCR 1014]
wherein it was held that an executive authority must
be rigorously held to the standard by which it
professes its actions to be judged. The relevant
observations read as under:
„10. […] It is a well-settled rule of administrative
law that an executive authority must be
rigorously held to the standards by which it
professes its actions to be judged and it must
scrupulously observe those standards on pain
of invalidation of an act in violation of them.
[…]”
89. The aforesaid leaves no manner of doubt in our mind
that if the purported action of cancelling the tender is
claimed to have been taken in view of certain
technical faults in the same or even a change in
policy the same ought to be clearly reflected from its
internal file notings as-well, pursuant to which the
purported decision was taken.”
W.P.(C) No.1134 of 2026 Page 24 of 88
7.2. In State of Odisha Vrs. Laxmi Narayan Das, (2023) 10
SCR 1049 the observation of the Hon’ble Supreme Court
regarding grant of relief based on official noting is as
follows:
“3. Whether a party can rely on notings in the
Government file without having communication of
any order on the basis thereof?
51. The aforesaid legal issue was considered by this
Court in Mahadeo and others Vrs. Sovan Devi and
others, (2022) SCC OnLine SC 1118. It was pointed
out therein, that an inter-departmental
communications are merely in the process of
consideration for an appropriate decision.
These cannot be relied upon as a basis to claim
any right. Mere notings in the file do not
amount to an order unless an order is
communicated to a party, thus, no right
accrues. Relevant paras 14 to 16 are extracted
herein below:
„14. It is well settled that inter-departmental
communications are in the process of
consideration for appropriate decision and
cannot be relied upon as a basis to claim any
right. This Court examined the said question in
a judgment reported as Omkar Sinha Vrs.
Sahadat Khan, (2022) 12 SCC 228. Reliance
was placed on Bachhittar Singh Vrs. State of
Punjab, AIR 1963 SC 395 to hold that merely
writing something on the file does not
amount to an order. Before something
amounts to an order of the State
Government, two things are necessary.
W.P.(C) No.1134 of 2026 Page 25 of 88
First, the order has to be expressed in the
name of the Governor as required by
clause (1) of Article 166 and second, it has
to be communicated. As already indicated,
no formal order modifying the decision of the
Revenue Secretary was ever made. Until such
an order is drawn up, the State Government
cannot, in our opinion, be regarded as bound
by what was stated in the file. The said
judgment was followed in K.S.B. Ali Vrs. State
of Andhra Pradesh, (2018) 11 SCC 277 and
Dyna Technologies Pvt. Ltd. Vrs. Crompton
Greaves Limited, (2019) 20 SCC 1. In
Bachhittar Singh, it has been held as under:
„8. What we have now to consider is the
effect of the note recorded by the Revenue
Minister of PEPSU upon the file. We will
assume for the purpose of this case that it
is an order. Even so, the question is
whether it can be regarded as the order of
the State Government which alone, as
admitted by the appellant, was competent
to hear and decide an appeal from the
order of the Revenue Secretary. Article
166(1) of the Constitution requires that all
executive action of the Government of a
State shall be expressed in the name of
the Governor. Clause (2) of Article 166
provides for the authentication of orders
and other instruments made and
executed in the name of the Governor.
Clause (3) of that article enables the
Governor to make rules for the more
convenient transaction of the business ofW.P.(C) No.1134 of 2026 Page 26 of 88
the Government and for the allocation
among the Ministers of the said business.
What the appellant calls an order of the
State Government is admittedly not
expressed to be in the name of the
Governor. But with that point we shall
deal later. What we must first ascertain is
whether the order of the Revenue Minister
is an order of the State Government i.e. of
the Governor. In this connection we may
refer to Rule 25 of the Rules of Business
of the Government of PEPSU which reads
thus:
„Except as otherwise provided by any
other Rule, cases shall ordinarily be
disposed of by or under the authority of
the Minister in charge who may by means
of standing orders give such directions as
he thinks fit for the disposal of cases in
the Department. Copies of such standing
orders shall be sent to the Rajpramukh
and the Chief Minister.‟According to learned counsel for the
appellant his appeal pertains to the
department, which was in charge of the
Revenue Minister and, therefore, he could
deal with it. His decision and order
would, according to him, be the decision
and order of the State Government. On
behalf of the State reliance was, however,
placed on Rule 34 which required certain
classes of cases to be submitted to the
Rajpramukh and the Chief Minister beforeW.P.(C) No.1134 of 2026 Page 27 of 88
the issue of orders. But it was conceded
during the course of the argument that a
case of the kind before us does not fall
within that rule. No other provision
bearing on the point having been brought
to our notice we would, therefore, hold
that the Revenue Minister could make an
order on behalf of the State Government.
9. The question, therefore, is whether he did
in fact make such an order. Merely
writing something on the file does not
amount to an order. Before something
amounts to an order of the State
Government two things are necessary.
The order has to be expressed in the
name of the Governor as required by
clause (1) of Article 166 and then it has to
be communicated. As already indicated,
no formal order modifying the decision of
the Revenue Secretary was ever made.
Until such an order is drawn up the State
Government cannot, in our opinion, be
regarded as bound by what was stated in
the file. As long as the matter rested with
him the Revenue Minister could well score
out his remarks or minutes on the file and
write fresh ones.
***
11. We are, therefore, of the opinion that the
remarks or the order of the Revenue
Minister, PEPSU are of no avail to the
appellant.‟
W.P.(C) No.1134 of 2026 Page 28 of 88
15. This Court in Municipal Committee Vrs. Jai
Narayan & Co., 2022 SCC OnLine SC 376 held
that a noting recorded in the file is merely
a noting simpliciter and nothing more. It
merely represents expression of an opinion
by the particular individual. It was held as
under:
„16. This Court in a judgment reported as
State of Uttaranchal Vrs. Sunil Kumar
Vaish, (2011) 8 SCC 670 held that a
noting recorded in the file is merely a
noting simpliciter and nothing more. It
merely represents expression of opinion
by the particular individual. By no stretch
of imagination, such noting can be treated
as a decision of the Government. It was
held as under:
„24. A noting recorded in the file is
merely a noting simpliciter and
nothing more. It merely
represents expression of opinion
by the particular individual. By
no stretch of imagination, such
noting can be treated as a
decision of the Government. Even
if the competent authority records its
opinion in the file on the merits of
the matter under consideration, the
same cannot be termed as a
decision of the Government unless it
is sanctified and acted upon by
issuing an order in accordance with
Articles 77(1) and (2) or ArticlesW.P.(C) No.1134 of 2026 Page 29 of 88
166(1) and (2). The noting in the file
or even a decision gets culminated
into an order affecting right of the
parties only when it is expressed in
the name of the President or the
Governor, as the case may be, and
authenticated in the manner
provided in Article 77(2) or Article
166(2). A noting or even a decision
recorded in the file can always be
reviewed/reversed/overruled or
overturned and the court cannot
take cognizance of the earlier noting
or decision for exercise of the power
of judicial review. (See: State of
Punjab Vrs. Sodhi Sukhdev Singh,
AIR 1961 SC 493, Bachhittar Singh
Vrs. State of Punjab, AIR 1963 SC
395, State of Bihar Vrs. Kripalu
Shankar, (1987) 3 SCC 34,
Rajasthan Housing Board Vrs. Shri
Kishan, (1993) 2 SCC 84, Sethi Auto
Service Station Vrs. DDA, (2009) 1
SCC 180 and Shanti Sports Club
Vrs. Union of India (2009) 15 SCC
705).‟
17. Thus, the letter seeking approval of the
State Government by the Deputy
Commissioner is not the approval granted
by him, which could be enforced by the
plaintiff in the court of law.‟
16. The basis of the claim of the writ petitioner is a
letter written by the Secretary of the Soldier
W.P.(C) No.1134 of 2026 Page 30 of 88
Welfare Department to the District Collector,
Udaipur on 19.03.1971 for allotment of land.
The Rules contemplate that if the possession is
not taken within 6 months, the allotment shall
be deemed to have been cancelled. Firstly, the
inter-departmental communication dated
19.03.1971 cannot be treated to be a letter of
allotment. Alternatively, even if it is considered
to be a letter of allotment, the writ petitioner
could not claim possession on the basis of such
communication after more than 30 years in
terms of the Rules applicable for allotment of
land to the disabled ex-servicemen.‟
52. Reference can also be made to an another judgment
of this Court in Municipal Committee, Barwala,
District Hisar, Haryana through its Secretary/
President Vrs. Jai Narayan and Company and
another, 2022 SCC OnLine SC 376, wherein the
Court took a similar view.
53. Admittedly, in the case in hand there is no order
passed by the Government and conveyed to the
respondents for allotment of any land, hence, no
relief was admissible to them only relying on the
official notings.”
7.3. Referring to State of Himachal Pradesh Vrs. OASYS
Cybernatics Pvt. Ltd., 2025 SCC OnLine SC 2536, this
Court was taken to Noting No.53, dated 19.12.2025 of
the Chairman, OMC which reveals that:
“1. A petition has been submitted by M/s. Kalinga
Commercial Corporation Limited dated 19.12.2025
to the undersigned Department of Steel and Mines,W.P.(C) No.1134 of 2026 Page 31 of 88
Government of Odisha, alleging certain irregularities
in the tender process for the Kodingamali MO
engagement. 14035/OMC/2025 petition on
Kodingamali Tender by KCCL page 1. The issues
raised in the petition have been stated below: ***”
7.4. Sri Sanjit Mohanty, learned Senior Advocate highlighted
paragraphs 4, 5, 6, 8, 9, 10, 17, 18, 19, 20, 22, 24, 25
and 26 of Note 59 to indicate that at the reverse bid
stage only two bidders participated. Therefore, having
apprised of the reality, the Chairman thought it prudent
to cancel the tender in entirety and instructed for fresh
bidding process to eradicate restrictive eligibility
conditions.
7.5. What transpires from the notings of the officials/
personnel contained in the file is that as many as nine
participants participated at the initial stage. After price
bid is opened, the petitioner emerged as L-1 and M/s.
Kalinga Commercial Corporation Limited remained L-2.
It is surfaced from perusal of said notings that after
participating in the reverse auction bidding process on
17.12.2025, being unsuccessful, M/s. Kalinga
Commercial Corporation Limited on 19.12.2025 raised
objections which led to cancellation of the tender in
entirety by the Chairman, OMC, notwithstanding the
technical personnel of OMC justified by rendering
opinion to retain the condition in the RfP, dated
03.11.2025.
W.P.(C) No.1134 of 2026 Page 32 of 88
7.6. Material on record suggests that at pre-bidding stage
certain clarifications sought from different quarters were
considered and corrigendum was issued by extending
the scheduled date. After financial/price bid is opened
and reverse auction bidding process being conducted, it
is unethical for the OMC to consider any objection
received from the unsuccessful bidder, who participated
throughout the process of bidding till reverse auction
stage. In the garb of consideration of such objection of
the unsuccessful bidder, ―review‖ is impermissible. None
of the clauses in the RfP does vest such a power on the
Chairman, OMC to deviate/vary from the tender
condition. The clause(s) harped at by the Senior
Advocate is that OMC reserved right in its sole discretion
without any obligation or liability to accept or reject any
or all the bids at any stage of the bidding process
without assigning any reason (Clause 12 of the RfP).
7.7. Though heavy reliance was placed by Sri Sanjit
Mohanty, learned Senior Advocate on File Noting Nos.53
and 59, in the counter affidavit to justify cancellation of
tender the following is asserted:
“10. That in reply to the averments made in Paragraphs
4.B to 4.H of the Writ Petition, at the cost of
repetition, it is submitted that during the Bidding
Process, four (04) Prospective Bidders namely; (1)
BLA Projects Private Ltd., (2) Harsha Constructions
Private Limited, (3) Sical Logistics Ltd. & (4) KrishnaW.P.(C) No.1134 of 2026 Page 33 of 88
Infrastructure requested for removal of 500 TPH
Crushing & Screening Experience from the technical
eligibility criteria as appearing at Clause-4.1 of RfP.
After completion of the reverse auction process,
and after post bid evaluation, OMC
management observed that participation was
significantly lower than anticipated. Upon
further examination, it emerged that the requirement
of Crushing & Screening experience with at least
500 TPH, as technical eligibility criteria had stood as
a barrier, thereby limiting wider participation in the
tender process.
In these circumstances, OMC management
undertook a fresh and deeper deliberation on
whether continuation of the tender under such
limited participation would truly ensure optimal
competition. After careful consideration at the
management level, a conscious decision was taken
that removal of the said criterion would enable wider
participation by Bidders, thereby enhancing
competition and transparency re-tendered process.
Hence, it is evident that the decision to cancel the
tender was taken not extraneous or arbitrary
grounds, but as a conscious decision founded on
objective assessment, aimed at ensuring (1) greater
participation of capable bidders, & (2) fair
competition. Accordingly, Tender Cancellation Notice
was issued on 05.01.2026. Said cancellation taken
after due diligence, extensive deliberation keeping in
view of industry requirement and operational
sustainability of the Kodingamali Bauxite Mine.”
7.8. Such reason concealed the fact that the exercise for
―review‖ was undertaken by the Chairman, OMC after
W.P.(C) No.1134 of 2026 Page 34 of 88
receipt of objection from the participant, namely M/s.
Kalinga Commercial Corporation Limited, in the reverse
auction bidding process.
7.9. Weighty argument was advanced by Sri Sanjit Mohanty,
learned Senior Advocate for the OMC that as no LoA/LoI
was issued nor was any Agreement executed it cannot be
construed that bidding process was completed, and
therefore, no right has been accrued or has any vested
right created in the successful bidder.
7.10. Taking into account the view expressed regarding
assignment of reason in tender matter particularly
relating to cancellation of tender as enunciated in Nanda
Infra Construction Pvt. Ltd. Vrs. State of Odisha, AIR 2025
Orissa 33 that no reason is required to be reflected in
the notice for cancellation of tender, on examination of
the reason ascribed in the notings contained in the file it
is found that the stand taken in the counter affidavit
runs counter to the reason in the noting. At the cost of
repetition it is observed that at pre-bid stage objections
raised/clarifications sought for by different intending
bidders were considered and the RfP was modified
accordingly. It is also assured therein that the tender
conditions would prevail.
7.11. With due regard to State of Himachal Pradesh Vrs.
OASYS Cybernatics Pvt. Ltd., 2025 SCC OnLine SC 2536,
W.P.(C) No.1134 of 2026 Page 35 of 88
as relied on by the learned Senior Advocate for OMC, the
context stated therein is not akin to the instant case. In
the said case at paragraph 35 the following factual
aspect emerged:
“35. A thorough examination of the record reveals two
broad strands of contemporaneous reasoning
adopted by the Appellant-State:
(i) receipt of complaints from competing bidders
alleging suppression of prior blacklisting and
concerns regarding vendor integrity;
(ii) persistent non-compliance with the LoI‟s
preconditions for over eight months, despite
reminders. We shall now test each of these
rationales on the anvil of the jurisprudence laid
out above.
36. The first ground relied upon by the Appellant-State
to justify the withdrawal of the LoI rests on a
complaint dated 03.01.2023, addressed by Linkwell
Telesystems, an unsuccessful bidder, alleging that
the Respondent-company had previously operated
under the name Omne Agate Systems Pvt. Ltd. and
had been blacklisted by certain State undertakings.
This complaint was subsequently placed before the
Chief Minister, who ultimately directed that a fresh
tender be invited.
***
50. The test for arbitrariness under Article 14 is
whether the decision is uninformed by reason
or guided by irrelevant considerations. When
examined through that lens, the Appellant-State‟s
W.P.(C) No.1134 of 2026 Page 36 of 88
action withstands scrutiny. We say so, being
mindful of the reality that the Department‟s
correspondence shows repeated efforts to
secure compliance, followed by mounting
concern about the feasibility of deploying
devices that had not been certified for
compatibility with NIC‟s national software.
These concerns were germane; they were neither
whimsical nor pretextual.”
Having considered such aspects, the Hon’ble Supreme
Court of India held,
“54. This Court has consistently recognised that the
State‟s decision to cancel a tender or restart the
process is itself an aspect of public interest. [Tata
Cellular Vrs. Union of India, (1994) 6 SCC 651; M.P.
Power Management Co. Ltd. Vrs. Sky Power
Southeast Solar India Pvt. Ltd., (2023) 2 SCC 703.]
The present decision to re-tender–prompted by
noncompliance and the desire to ensure NIC
compatibility– falls squarely within that zone of
permissible discretion.
55. In this vein, the principle of legitimate
expectation also does not come to the aid of
the Respondent-company. That doctrine
presupposes a clear and unambiguous
representation by the State, followed by
reliance and detriment. The conditional terms of
the LoI negate the existence of any clear assurance;
rather, they expressly warned that the process was
still provisional. To invoke legitimate expectation
against an explicit disclaimer would be to transform
the doctrine from a shield against arbitrariness into
W.P.(C) No.1134 of 2026 Page 37 of 88
a sword against caution — a proposition no Court
can endorse.
56. Accordingly, we find that the Second Issue must also
be answered in the negative. The cancellation of the
LoI dated 02.09.2022 does not suffer from
arbitrariness, mala fides, or breach of natural
justice, and the High Court’s interference therewith
cannot be sustained. The Department had tangible
grounds for dissatisfaction; it followed a discernible
process; and it acted within the contractual liberty
reserved to it. The reasons for cancellation were
antecedent, bona fide, and germane to the public
purpose of ensuring a reliable, uniform, and lawfully
procured ePoS infrastructure.”
7.12. There cannot be any dispute regarding ratio laid down in
such decision taken on facts. The factual discussed and
highlighted in the said reported judgment is not
obtained on record in the present case. Noting No.53 in
the file unequivocally indicates that the Chairman, OMC
sought to revisit the condition of the RfP, i.e., ―single unit
of at least 500 TPH‖, which was introduced after due
consideration at the pre-bid stage. Further reason in
Note No.59, dated 05.01.2026 shows that on an
assumption of fact that ―there can be allegations that,
this particular bidder directly benefited from the time
extension and the concurrent criterion tweaking‖, but in
the same breath it is also found recorded that ―By the
extended due date, two more bidders made bid
submission. In effect, the extension served its purpose of
W.P.(C) No.1134 of 2026 Page 38 of 88
improving competition on paper‖. The Chairman, OMC
apparently ignored to perceive that on 13.11.2025 the
Chief General Manager (Mining), OMC in ―Response to
Pre-Bid Queries dated 13.11.2025 against RfP
No.193/OMC/P&T/2025, dated 03.11.2025 and E-
Tender No.OMC/25-26/ET/3 floated for Selection of
Mine Operator for Kodingamali Bauxite Mine‖ made it
clear that ―tender conditions shall prevail‖. Therefore,
this Court is persuaded to hold that there being no
scope for the Chairman, OMC to review such a decision
after reverse auction bidding process is concluded on the
basis of representation of unsuccessful bidder, viz., M/s.
Kalinga Commercial Corporation Ltd., having
participated in the said reverse auction bidding process.
From a bare reading of the noting in the file it is
indicative that the internal communication gaps or
lacunae is sought to be covered up by the Chairman,
OMC. There is nothing on record to suggest that the
personnel/official of OMC has been taken to task for any
lapses. Careful reading of noting in the file does not
reveal iota of incidence regarding fraud, collusion or
misrepresentation on the part of the petitioner. Notings
does not emanate any such involvement attributable to
the petitioner. Such fact has also not been brought on
record by way of affidavit or otherwise by the OMC.
W.P.(C) No.1134 of 2026 Page 39 of 88
7.13. Ergo, this Court finds arbitrariness in action of the
Chairman, OMC.
7.14. At this juncture reference can be had to Golden Food
Products India Vrs. State of Uttar Pradesh, 2025 SCC
OnLine SC 24, wherein the observation of Hon’ble
Supreme Court of India runs thus:
“28. In our view, there cannot be any imprimatur of
the Court to such arbitrary cancellation of
auction by an instrumentality or agency of the
State in the absence of there being any fraud,
collusion, suppression etc. Merely because the
smaller plots measuring 123 to 132 square
metres were auctioned and sold at a higher
price as compared to the subject plot
measuring 3150 square metres which is a large
sized plot, could not have been the basis for
cancelling the auction insofar as the subject
plot is concerned. The demand for smaller plots
being higher was sold at a higher price per square
metre than the subject plot, where there was no
demand for the subject plot as only two bidders
participated in the auction. The bid of the appellant
was above the reserve price. There was no other
reason to cancel the auction sale of the subject plot.
Therefore, GDA – respondent No. 2 was under an
obligation in law having accepted the bid offered by
the appellant to issue the allotment letter instead of
cancelling the auction on the basis of irrelevant
considerations that too behind the back of the
appellant. Expectation of a higher bid in a
subsequent auction cannot be a reason to cancel an
auction held in accordance with law.
W.P.(C) No.1134 of 2026 Page 40 of 88
29. The appellant herein as also all bidders would had
made all financial arrangements before making
technical and financial bids in an auction. The
technical bid of the appellant herein was
accepted. There was no reason to decline the
financial bid made by the appellant which was
the highest bid. The financial bid was also over
and above the reserve price. There was no
reason attributed to the appellant for
cancellation of the auction sale. In the
circumstances, the appellant had a legitimate
expectation to receive an allotment letter vis-Ã -
vis the subject plot as it was the highest
bidder. Instead, without any prior notice to the
appellant the auction itself was cancelled
which constrained the appellant to approach
the High Court. The High Court has lost sight of
these facts of the matter and has simply dismissed
the writ petitions filed by the appellant herein which
is not correct.
30. We could consider the judgments cited at the Bar as
under:
a) In Haryana Urban Development Authority Vrs.
Orchid Infrastructure Developers (P) Ltd.,
(2017) 4 SCC 243, the contract contained an
express clause stating that the presiding officer
had the right to reject a bid without offering
any reasons. Although twenty-seven bidders
participated in the said auction and the reserve
price was Rs. 106.65 crores and the highest
bid was Rs. 111.75 crores for 9.527 acres of
land in Gurgaon, the bid was cancelled.
W.P.(C) No.1134 of 2026 Page 41 of 88
However, such a clause is conspicuous by its
absence in the present case.
b) In Rajasthan Housing Board Vrs. G.S.
Investments, (2007) 1 SCC 477, owing to a
news item published in a newspaper that large
scale bungling had taken place in the auction
due to which the price fetched for the plots was
much below the market rate, a direction was
issued by this Court to hold a fresh auction.
Such a situation did not arise in the instant
case.
c) In State of Orissa Vrs. Harinarayan Jaiswal,
(1972) 2 SCC 36, there was a direction to hold
a re-auction as the power to accept or reject the
bid was given to the highest authority in the
State and the State Government was of the
opinion that the price was inadequate.
Possibly, in the facts of the said case, the said
direction was issued by this Court.
d) In Uttar Pradesh Avas Evam Vikas Parishad
Vrs. Om Prakash Sharma, (2013) 5 SCC 182,
the reserve price was fixed at Rs. 1,80,200/-
and the respondent therein offered Rs.
1,31,500/- which was much less than the
reserve price. Hence, the bid was rightly
rejected.
e) In Meerut Development Authority Vrs.
Association of Management Studies, (2009) 6
SCC 171, the request of the respondent therein
for allotment of remaining 20,000 square
metres to them as they had acquired 37,000
square metres of land as per the reserve price,
W.P.(C) No.1134 of 2026 Page 42 of 88
was rejected as the price quoted had been
lower than the reserve price for the said
remaining land and rightly so.
f) In Indore Vikas Praadhikaran (IDA) Vrs. Shri
Humud Jain Samaj Trust, 2024 SCC OnLine
SC 3511, this Court distinguished Eva Agro
Feeds and found that the bid could not be
accepted as the tender committee while
finalizing the bids noticed that property tax of
Rs. 1.25 crore in respect of the subject land
therein was outstanding. On noticing this error,
the Board decided to cancel the bid of the
respondent therein and decided to issue a
fresh notice inviting tenders.
31. The following judgments also require consideration:
a) In M.P. Power Management Company Limited
Vrs. Sky Power Southeast Solar India (Private)
Limited, (2023) 2 SCC 703, the bid of the
respondent therein was accepted and it was
observed that public interest cannot always be
conflated with an evaluation of the monetary
gain or loss alone.
b) In Nagar Nigam, Meerut v. Al Faheem Meat
Exports (P) Ltd., (2006) 13 SCC 382, an
advertisement inviting applications for a fresh
contract to run a slaughterhouse was
sustained. In the said judgment, it was
observed that the award of government
contracts through public auction or public
tender was to ensure transparency in the
public procurement, to maximise the economy
and efficiency in government procurement, toW.P.(C) No.1134 of 2026 Page 43 of 88
promote healthy competition among the
tenderers and to eliminate irregularities,
interference and corrupt practices by the
authorities concerned. In rare and exceptional
cases, for instance during natural calamities
and emergencies declared by the Government;
where the procurement is possible from a
single source only; where the supplier or
contractor has exclusive rights in respect of the
goods or services and no reasonable
alternative or substitute exists; where the
auction was held on several dates but there
were no bidders or the bids offered were too
low, etc., this normal rule may be departed
from and such contracts may be awarded
through “private negotiations”. The Government
must then have freedom of contract. Some fair
play in the joints is a necessary concomitant
for an administrative body functioning in an
administrative sphere. The plea of the
respondent therein seeking permission to
modernize the slaughterhouse and therefore, to
refrain from issuing an advertisement was
negatived.
c) In Subodh Kumar Singh Rathour Vrs. Kolkata
Metropolitan Development Authority, (2024) 15
SCC 461, this Court observed that merely
because the rates embodied in a contract with
the passage of time have become less
appealing, the same cannot become a
determinative criterion for either terminating
the contract or for the courts to decline
interference in such contractual disputes.
Public interest cannot be used as a pretext to
W.P.(C) No.1134 of 2026 Page 44 of 88
arbitrarily terminate contracts. Merely because
the financial terms of a contract are less
favourable over a period of time does not justify
its termination. It was observed that the mere
possibility of fetching a higher license fee was
no ground to cancel the tender issued to the
appellant therein.
32. An auction process has a sanctity attached to
it and only for valid reasons that the highest
bid can be discarded in an auction which is
otherwise held in accordance with law. If a
valid bid has been made which is above the
reserve price, there should be a rationale or
reason for not accepting it. Therefore, the
decision to discard the highest bid must have a
nexus to the rationale or the reason. Merely
because the authority conducting the auction
expected a higher bid than what the highest
bidder had bid cannot be a reason to discard
the highest bid. In the instant case, no other party
had placed a bid higher than the appellant herein.
There was no infirmity in the conduct of the auction.
No other party had complained about the process of
auction conducted by the GDA-respondent No. 2. The
bid offered by the appellant herein was the highest
and above the reserve price. In the circumstances,
the said bid ought to have been accepted by GDA-
respondent No. 2 rather than cancelling the same
without notice to the appellant herein. Hence, the
cancellation of the bid submitted by the appellant
herein is quashed.”
7.15. In Shanti Construction Pvt. Ltd. Vrs. State of Odisha,
2025 SCC OnLine SC 2368 it has been held that:
W.P.(C) No.1134 of 2026 Page 45 of 88
“10. A public tender is not a private bargain. It is
instrument of governance, a mechanism through
which the State discharges its solemn duty as
trustee of public wealth. Its purpose is not merely
procedural compliance, but maximisation of public
value through a process, i.e., fair, transparent and
competitive. The obligation of the Tendering
Authority is therefore twofold, namely, to
interpret its own terms with consistency and to
ensure that such interpretation advances, not
defeats, the object of tender. The court must
intervene in a case of demonstrable
misconstruction of a tender condition or
irrationality which affects the public interest.
When an interpretation of a tender condition
narrows competition and excludes the highest
bidder on a ground unsupported by law, the
decision making process is vitiated. The
interpretation of the terms of tender must, therefore,
serve the object and purpose of the tender mainly to
maximise the revenue to the State, when it deals
with a natural resource.
***
16. *** It is well settled that tenders and public auctions,
specially for natural resources, are not mere
commercial transactions, but an exercise in public
trust. The State is custodian of natural wealth is
obligated to secure the best value for public
resources consistent with the principles of fairness
and transparency. [See: Natural Resources
Allocation, In re, Special Reference No.1 of 2012,
(2012) 10 SCC 1 and Subodh Kumar Singh RathourW.P.(C) No.1134 of 2026 Page 46 of 88
Vrs. Chief Executive Officer, (2024) 15 SCC 461 =
AIR 2024 SC 3784].”
7.16. Sri Sanjit Mohanty, learned Senior Advocate cited
Principal Chief Conservator of Forest Vrs. Suresh Mathew,
2025 SCC OnLine SC 2368 to support his argument that
equity and natural justice stay at a distance and so long
as decision relating to award of contract is bona fide and
is in public interest, exercise of power under Article 226
is unwarranted. In the said reported case, the following
is the observation of the Hon’ble Supreme Court of India:
“14. The factual matrix of this case involve the process of
tender and the power of the tendering authority to
cancel the tender is a legal question.
15. A perusal of the record shows that the order dated
12.10.2020 passed by the DFO categorically states
as under:
„Some other contractors had complained that
they could not participate in the e-tender due
to Covid-19 transportation restrictions. Their
grievances need proper redressal.‟It is thus clear that the DFO, being the
tendering authority, found that some
contractors could not participate due to Covid
restrictions and thus, proceeded to retender
the work. The respondents, being still allowed
to participate, were not prejudiced by the
retender.
16. The question of scope of judicial review in the cases
of award of contracts has already been dealt with
W.P.(C) No.1134 of 2026 Page 47 of 88
by the Hon‟ble Supreme Court in the case of Jagdish
Mandal Vrs. State of Orissa, (2007) 14 SCC 517
wherein the 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 of
some technical/procedural violation or some
prejudice to self, and persuade courts to
interfere by exercising power of judicial review,W.P.(C) No.1134 of 2026 Page 48 of 88
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 licenses, dealerships and
franchises) stand on a different footing as
they may require a higher degree of
fairness in action.‟
We are of the opinion that the High Court has
committed a gross error while observing the facts in
W.P.(C) No.1134 of 2026 Page 49 of 88
the case of Jagdish Mandal (supra) were entirely
different in regard to a defective tender submitted by
a participant.
17. In the case of State of Orissa Vrs. Harinarayan
Jaiswal, (1972) 2 SCC 36, in relation to excise
revenue, the Supreme Court observed as under:
„13. *** The Government is the guardian of the
finances of the State. It is expected to protect
the financial interest of the State. Hence quite
naturally, the Legislature has empowered the
Government to see that there is no leakage in
its revenue. It is for the Government to decide
whether the price offered in an auction sale is
adequate. While accepting or rejecting a bid, it
is merely performing an executive function. The
correctness of its conclusion is not open to
judicial review. We fail to see how the plea of
contravention of Article 19(1)(g) and Article 14
can arise in these cases. ***‟
18. The law regarding government contracts or auctions
and the nature and scope of its judicial review is
well settled. In the case of Michigan Rubber (I) Ltd.
Vrs. State of Karnataka, (2012) 8 SCC 214, the
Supreme Court observed as under:
„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
W.P.(C) No.1134 of 2026 Page 50 of 88
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;
(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
W.P.(C) No.1134 of 2026 Page 51 of 88
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.‟
19. In the case of Tata Cellular Vrs. Union of India,
(1994) 6 SCC 651, the Supreme Court emphasised
the need to find a right balance between
administrative discretion to decide the matters on
the one hand, and the need to remedy any
unfairness on the other, and observed:
„94.
(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but
merely reviews the manner in which the
decision was made.
(3) The court does not have the expertise to correct
the administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the
necessary expertise, which itself may be
fallible.
(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation
to tender is in the realm of contract.
(5) The Government must have freedom of
contract. In other words, a fair play in the
joints is a necessary concomitant for an
administrative body functioning in anW.P.(C) No.1134 of 2026 Page 52 of 88
administrative sphere or quasiadministrative
sphere. However, the decision must not only be
tested by the application of Wednesbury
principle of reasonableness (including its other
facts pointed out above) but must be free from
arbitrariness not affected by bias or actuated
by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration
and lead to increased and unbudgeted
expenditure.‟
20. It is noteworthy that the order dated 12.10.2020 is
an order issued by the DFO who is the competent
authority. The setting aside of this order of the DFO
by the Ld. Single Judge is erroneous since it does
not record any finding that the order of the DFO is
mala fide. We are of the opinion that the order of
DFO would give an equal opportunity to all the
bidders and thus, there would be a fair play
between them, ultimately benefitting the
Government.”
7.17. There is no cavil qua the principles discussed in the said
reported judgment, being Suresh Mathew (supra).
However, since there is factual distinctive feature
discussed in the said case is very relevant. It is stated
therein that due to pandemic situation bidders could not
participate in the tender, which led to cancellation of
tender. Such is not the case here. The reliance on Suresh
Mathew (supra) by the learned Senior Advocate for the
OMC is misplaced.
W.P.(C) No.1134 of 2026 Page 53 of 88
8. This Court now would delve into the aspect whether on
the basis of complaint/objection received on 19.12.2025
from M/s. Kalinga Commercial Corporation Limited,
unsuccessful bidder, after conclusion of reverse auction
bidding process on 17.12.2025, the Chairman, OMC
could review the entire process of tender and cancel the
tender in its entirety, notwithstanding justification has
been provided for by the technical personnel who were
involved in the evaluation of the tender in the light of
conditions stipulated in the RfP.
8.1. The answer is certainly in the negative. It is surfaced
from Noting No.53 dated 19.12.2025 that on a petition
submitted by M/s. Kalinga Commercial Corporation
Limited on even date to the Steel and Mines Department,
Government of Odisha, the Chairman, OMC reviewed the
process. The assumed perception of the Chairman does
reflect at paragraph 21 that:
“A low rate achieved through a process that is later found
to be restrictive or unfair may expose the Organisation to
legal, audit, and vigilance scrutiny.”
8.2. It is trite to say that there is always a peril to take
decision on conjecture, surmise or suspicion and such
factors howsoever strong cannot be allowed to take the
place of evidence. The Court has to be watchful and
ensure that conjectures and suspicions do not take the
place of legal proof. It must be examined that the various
W.P.(C) No.1134 of 2026 Page 54 of 88
events having nexus with the evidence should be
established clearly and it should lead to a reasonable
likelihood of fraud, collusion or misrepresentation.
8.3. Having regard to the noting in the file handed over
during the course of hearing does not inspire that there
was lacking transparency in the entire process of
auction and there is no allegation of such fraud,
collusion or misrepresentation on the part of the
petitioner. The noting in the file demonstrates that the
Chairman merely entertained doubt and therefore,
sought to cancel the entire tender ignoring to appreciate
the noting(s) of officials including technical personnel,
who were involved in the conduct of the tender process.
This Court having had the occasion to peruse the file
containing the Noting No.56, dated 02.01.2026, it came
to be learnt that the Director (Operations) has lucidly
stated circumstances leading to inclusion of the
condition, i.e., ―crushing and screening experience with
at least 500 TPH condition‖. He made elaborate
discussion with respect to ―Justification for the 500 TPH
Crushing and Screening Condition‖. The rationale for
introducing ―single unit‖ condition by way of
corrigendum is also explained. He also clarified with
respect to ensuring maximum competition and bidder
participation. Furthermore, he has explained that ―OMC
took extensive measures to ensure a competitive and
W.P.(C) No.1134 of 2026 Page 55 of 88
transparent bidding environment‖ and ―before floating
the tender and even after issuing corrigendum for the
requirement of single unit 500 TPH, a prospective bidder
profiling of existing bidders associated with OMC was
done to assess the number of bidders eligible for the
Kodingamali Tender‖. Said noting also contained the
purpose and object of Clause 4.1.1 vis-a-vis Clause
4.1.8. Director (Operations) in his Note No.57 made
similar justification. The Managing Director of OMC in
his Noting No.58 stated thus:
“Every step as required have been taken in this tender
after due diligence for ensuring transparent and
competitive bidding process leading to selection of the L-1
bidder.”
8.4. Discarding and/or ignoring all these explanations
contained in the file, the Chairman, OMC at paragraph
10 of Noting No.59 unilaterally came to conclusion that
inclusion of the 500 TPH experience clause was
restrictive. He failed to appreciate that such clause as
original existed was modified at the pre-bid stage by
virtue of corrigendum. Reviewing such a clause at this
belated stage in the presence of clarification that the
tender condition would prevail is arbitrary exercise of
power.
8.5. With respect to requirement and necessity of specifying
experience criteria as a condition in the tender, in the
W.P.(C) No.1134 of 2026 Page 56 of 88
case of Bibhu Datta Tripathy Vrs. State of Odisha, W.P.(C)
No.35634 of 2025, vide Order dated 23.12.2025, this
Court observed thus:
“3. We are conscious of the proposition of law that the
scope and jurisdiction exercised by the writ Court
under Article 226 of the Constitution of India in
relation to an incorporation of any terms and
conditions in the tender call notice is limited and,
therefore, the Court must meticulously examine the
said clauses keeping in mind the object and the
purpose and the character of the work which the
Authorities intended to be executed by the
participating tenderers. There is no cavil of doubt
that incorporation of the terms and conditions in the
tender call notice is within the domain of the
Authorities floating the tender and such freedom is
inhered and ingrained in them as they are the best
persons to decide as to what conditions should be
incorporated to ensure not only timely execution of
the entire work but also the quality of such work.
The writ Court should seldom interfere into the terms
and conditions embodied in the tender call notice
unless such conditions are per se arbitrary,
irrational and does not withstand on the test of
reasonability. The Court may interfere when such
conditions are actuated with malice, embracing
favoritism and nepotism and tailored to suit a
particular person.
3.1. Simply because a particular intending tenderer is
not eligible to participate in the said tender because
of the eligibility conditions enshrined therein does
not ipso facto invite the action of the authorities
arbitrary and/or unreasonable. The reasonability
W.P.(C) No.1134 of 2026 Page 57 of 88
test stands on the Wednesbury principle and to be
tested in perspective of the object and the purpose
underlying the incorporation of such clauses.
3.2. Even the apex Court in Vinishma Technologies Pvt.
Ltd. Vrs. State of Chhattisgarh and another, reported
in (2025) 10 SCR 301 = 2025 INSC 1182 held that
the eligibility criteria enshrined in the tender
document must have a nexus with the object sought
to be achieved and if any specialized work is
required to be undertaken, there is no fetter on the
part of the tendering authority to incorporate any
conditions.
3.3. There is no quarrel to the proposition with the
incorporation of any terms and conditions must
ensure the level playing field doctrine and any
stringent conditions which creates an unreasonable
restriction in participation is always regarded as the
action offending the aforementioned doctrine.
Therefore, a distinction has to be drawn between the
tender floated for supply of material either from the
manufacturers or the dealers, which is of a general
nature and the construction of a structure requiring
particular specification, quality and expertise in this
regard.
3.4. In M/s. Utkal Suppliers, Berhampur, Ganjam Vs.
Veer Surendra Sai Institute of Medical Sciences and
Research, Burla, Sambalpur and another, W.P.(C)
No.19004 of 2025, disposed of on 18th December,
2025, this Court held as follows:
„13. What could be culled out from the
aforementioned reports that the administrative
action of the authorities in a contractual field isW.P.(C) No.1134 of 2026 Page 58 of 88
amenable to be tested in exercise of powers of
judicial review, provided such action is
arbitrary, unfair, unreasonable, irrational and
violates the core fabric of Article 14 of the
Constitution of India. The discriminatory action
manifested from the administrative action is
opposed to the doctrine of “level playing field”.
Any terms and conditions incorporated in the
tender to restrict its participation amongst the
particular class of persons without any
discernible rationality in it disturbs the “level
playing field” and may be termed as arbitrary.
The test of arbitrariness can also be decided
when such act betrays, caprice or a mere
exhibition of the will of the authority.
14. Thus, the safest course to ascertain the
arbitrariness in the action of the administrative
authorities is whether the condition imposed in
the tender document has any nexus to the
object sought to be achieved eradicating the
vice of arbitrariness or an unfair treatment
amongst the eligible candidates.
15. In the instant case, before the finalization of
the terms and conditions to be incorporated in
the proposed tender document, Pre-bid meeting
was held inviting the suggestions and/or
objections. Several intending participants
including the petitioner gave their suggestions
and the main focus was on the marks allotted
on the basis of the turnover. The authority,
which is the expert body, justified the fixation
of the turnover giving a reason that the nature
of the services ordained the seamless supply of
W.P.(C) No.1134 of 2026 Page 59 of 88
the foods to the indoor patients for two or three
months in the event the payments are not
made, which cannot be said irrational and/or
arbitrary. The financial capacity for
uninterrupted services to be rendered to the
patients is clearly discernible from the decision
of the administrative authorities, who are well
versed with the realities gained from the past
experience, which cannot be said to be
arbitrary or disturbs the fabric of “level playing
field”.‟
3.5. The present tender is floated for construction of 50
seated Hostel building at Kamata, Kumuli and
construction of 100 seated Boys/Girls Hostel
Building at +2 College, Tarabhata and 100 seated
Girls‟ Hostel at Kotpad RGHS. Since the construction
of the Hostels, which would cater the students
invites specialized and experienced contractor, it
may impact the lives of the inhabitants therein and,
therefore, any conditions which are imposed with an
intent to ensure the quality work under the strict
supervision of expert cannot be said to be arbitrary
or offending the core fabric of level playing field.
3.6. It admits no ambiguity with a freedom to some
extent must be given to an authority floating the
tender to incorporate the terms and conditions, an
interference without any grounds as aforesaid,
should be avoided. It is open to the authority floating
a tender to incorporate the conditions including the
eligibility criteria which must be corelated with the
purpose and object sought to be achieved and once
the same is discernable from the document, the
interference becomes minimal.
W.P.(C) No.1134 of 2026 Page 60 of 88
4. We, thus, do not find any substance in the stand of
the petitioner that such eligibility criteria is arbitrary
and opposed to the level playing field doctrine.”
8.6. In the perspective of above enunciation, the decision of
the Chairman to cancel the tender is now considered.
The OMC having undertaken the recourse for pre-
bidding analysis and on being appraisal of requirement
of relaxation of experience criteria as it existed on the
date of publication of original tender modified the same;
it is not for the Chairman, OMC at this belated stage
particularly after opening of technical bid, price bid and
undertaking reverse auction bidding process when the
petitioner emerged as L-1 to object the same discarding
the justification proffered by other officials.
8.7. Notwithstanding such clear appraisal of adherence to
transparent bidding process, the Chairman, OMC on
05.01.2026 on a presumption lacking transparency and
being swayed away by the objection of M/s. Kalinga
Commercial Corporation Limitation after participating in
the reverse auction bidding process cancelled entire
tender, without assigning cogent reason and on germane
ground.
8.8. The observation of the Hon’ble Supreme Court of India
in Municipal Committee Katra Vrs. Ashwani Kumar, 2024
SCC OnLine SC 840, runs thus:
W.P.(C) No.1134 of 2026 Page 61 of 88
“18. The situation at hand is squarely covered by the
latin maxim „nullus commodum capere potest de
injuria sua propria‟, which means that no man can
take advantage of his own wrong. This principle
was applied by this Court in the case of Union of
India Vrs. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC
127 observing as below:
„28. …In this behalf, the maxim nullus commodum
capere potest de injuria sua propria– meaning
no man can take advantage of his own
wrong– squarely stands in the way of
avoidance by the respondent and he is
estopped to plead bar of limitation contained in
Section 123(2). In Broom‟s Legal Maxim (10th
Edn.) at p. 191 it is stated:
„… it is a maxim of law, recognised and
established, that no man shall take advantage
of his own wrong; and this maxim, which is
based on elementary principles, is fully
recognised in courts of law and of equity, and,
indeed, admits of illustration from every branch
of legal procedure.‟The reasonableness of the rule being manifest,
we proceed at once to show its application by
reference to decided cases. It was noted
therein that a man shall not take advantage of
his own wrong to gain the favourable
interpretation of the law. In support thereof, the
author has placed reliance on another maxim
frustra legis auxilium invocat quaerit qui in
legem committit. He relies on Perry Vrs.
Fitzhowe [[L.R.] 8 Q.B. 757 : 15 LJ QB 239]. At
p. 192, it is stated that if a man be bound to
W.P.(C) No.1134 of 2026 Page 62 of 88
appear on a certain day, and before that day
the obligee puts him in prison, the bond is void.
At p. 193, it is stated that “it is moreover a
sound principle that he who prevents a
thing from being done shall not avail
himself of the non-performance he has
occasioned”. At p. 195, it is further stated
that “a wrong doer ought not to be
permitted to make a profit out of his own
wrong”. At p. 199 it is observed that “the rule
applies to the extent of undoing the advantage
gained where that can be done and not to the
extent of taking away a right previously
possessed”.
19. It is beyond cavil of doubt that no one can be
permitted to take undue and unfair advantage of his
own wrong to gain favourable interpretation of law.
It is a sound principle that he who prevents a thing
from being done shall not avail himself of the non-
performance he has occasioned. To put it
differently, „a wrong doer ought not to be
permitted to make profit out of his own wrong‟.
The conduct of the respondent-writ petitioner is fully
covered by the aforesaid proposition.
20. The respondent-writ petitioner participated in
the tender process without raising any issue
about Clause-8 of the auction notice. The highest
bidder Shri. Pritam Das did not come forward to
execute the contract thus, the respondent became
the highest bidder and was offered the work in
question. The respondent accepted the same
with open eyes. However, in order to avoid full
compliance of Clause-8 of auction notice, the
W.P.(C) No.1134 of 2026 Page 63 of 88
respondent went on to file a civil suit. Having
participated in the tender proceedings with
open eyes, the respondent challenged the
Clause-8 of the auction notice in the civil Court
and thereby, stalled the issuance of the work
order. The matter was taken to the High Court and
the appellants gave a clear indication before the
High Court that they were proposing to hold a fresh
auction. However, during pendency of appeal before
the High Court, an order dated 7th May, 2010 came
to be passed whereby, the appellants were directed
to award the work to the respondent being L-2.
21. We feel that once the respondent-writ
petitioner had participated in the tender
process being fully conscious of the terms and
conditions of the auction notice, he was
estopped from taking a U-turn so as to question
the legality or validity of the terms and
conditions of the auction notice. By dragging the
matter to litigation, the respondent himself was
responsible for the delay occasioned in issuance of
the work order which deprived him of the
opportunity to work for the entire period of 365
days.”
8.9. This Court in Paritosh Services Agency, Cuttack Vrs.
Notified Area Council, Remuna Balasore, 2025 SCC
OnLine Ori 5158 held as follows:
“10. Though the pivotal issue involved in the instant writ
petition is whether a bidder, who participated in the
tender can challenge any of the terms and
conditions of the tender call notice, an additional
ground is also taken that the said clause is tailoredW.P.(C) No.1134 of 2026 Page 64 of 88
to favour a blue-eyed intending bidder. We feel it
prudent to deal with the said point also.
11. It admits no ambiguity that it is within the
competence of the authority floating a tender inviting
the bid for a specified work to put the terms and
conditions as felt inevitable and such freedom has to
be recognized and the challenge to any of the terms
and conditions is restricted only on the ground of
arbitrariness, mala fide, perversity and/or violative
of any of the statutory rules or the Codes applicable
in this regard. The freedom of contract even in a
public contract should always be embraced and a
person intending to participate in the tender must
agree to such terms and conditions and in the event
the challenge to any of the terms and conditions is
required to be made, it should be done before
participation in the tender. A person cannot be
permitted to take a calculated chance in
participating in the tender and after having
found unsuccessful cannot be permitted to
throw the challenge to any one or more terms
and conditions incorporated in the tender
document.
11.1. Support can be lent to a judgment of the Supreme
Court in case of Balaji Ventures Pvt. Ltd. Vrs.
Maharashtra State Power Generation Company Ltd.,
(Special Leave to Appeal (C) No. 1616 of 2022
decided on 11.02.2022) reported at 2022 SCC
OnLine SC 1967, wherein an identical issue was
raised that one of the clauses in the tender call
notice was tailored to suit a particular tenderer and,
therefore, such clause is required to be struck down.
In this aspect, it is held that the authority is the bestW.P.(C) No.1134 of 2026 Page 65 of 88
person to incorporate any terms and conditions at
the time of drafting and/or preparing the tender call
notice and the challenge must be restricted if such
terms and conditions are found arbitrary, mala fide
and/or smack of bias. The apex Court also observed
that the freedom of contract even in a public contract
is reserved with the Government and the challenge
to any of the terms and conditions must be
restricted, if it violates the Wednesbury principle or
suffers from any legal vices.
11.2. Even prior to the aforementioned judgment, the apex
Court in case of Silppi Constructions Contractors Vrs.
Union of India, (2020) 16 SCC 489, put a restraint on
the writ Court to interfere with the terms and
conditions enshrined in the tender call notice unless
the decision is totally arbitrary, unreasonable
and/or tainted with bias in the following:
„20. ***‟
11.3. It is no gainsaying that the freedom of contract
is inhered and ingrained in a contractual field
even in case of a public contract and the
challenge to any terms and conditions is
restricted only when such terms and conditions
are arbitrary, mala fide, unreasonable and
irrational and tailored to suit a particular
tenderer percolating a smack of bias. The
interference into any terms and conditions embodied
in the tender call notice by the High Court in exercise
of power of judicial review is minimal and to be
exercised within the limited compass. The terms and
conditions must also withstand on the Wednesbury
principle and a strong case of such nature must be
made out in the pleading.
W.P.(C) No.1134 of 2026 Page 66 of 88
11.4. The above quoted clause which is a seminal issue of
challenge in the instant writ appeal does not
percolate a sense of arbitrariness, mala fide,
unreasonability and/or irrationality and, therefore,
we do not find that the same comes within the
bracket of any of such grounds as narrated
hereinabove.
12. The pivotal issue as adumbrated hereinbefore
is whether the petitioner can challenge the
terms and conditions of the tender call notice
after participating therein without any demur
and/or objection. It has been a consistent view
taken by the apex Court that it is not open to the
intending bidder to challenge any terms and
conditions of the tender call notice after participating
therein and the Court shall not permit such bidder to
take a „U‟ turn and file a writ petition after having
unsuccessful in the tender process.
12.1. The observations made by the apex Court in case of
Madan Lal Vrs. State of Jammu & Kashmir; reported
in (1995) 3 SCC 486 can be gainfully applied to
buttress the aforesaid notion in the following:
„9. Before dealing with this contention, we must
keep in view the salient fact that the petitioners
as well as the contesting successful candidates
being respondents concerned herein, were all
found eligible in the light of marks obtained in
the written test, to be eligible to be called for
oral interview. Up to this stage there is no
dispute between the parties. The petitioners
also appeared at the oral interview conducted
by the Members concerned of the Commission
who interviewed the petitioners as well as the
W.P.(C) No.1134 of 2026 Page 67 of 88
contesting respondents concerned. Thus the
petitioners took a chance to get themselves
selected at the said oral interview. Only
because they did not find themselves to have
emerged successful as a result of their
combined performance both at written test and
oral interview, they have filed this petition. It is
now well settled that if a candidate takes a
calculated chance and appears at the
interview, then, only because the result of the
interview is not palatable to him, he cannot
turn round and subsequently contend that the
process of interview was unfair or the Selection
Committee was not properly constituted. In the
case of Om Prakash Shukla Vrs. Akhilesh
Kumar Shukla, 1986 Supp SCC 285 = AIR
1986 SC 1043 it has been clearly laid down by
a Bench of three learned Judges of this Court
that when the petitioner appeared at the
examination without protest and when he
found that he would not succeed in
examination he filed a petition challenging the
said examination, the High Court should not
have granted any relief to such a petitioner.
10. Therefore, the result of the interview test on
merits cannot be successfully challenged by a
candidate who takes a chance to get selected
at the said interview and who ultimately finds
himself to be unsuccessful. It is also to be kept
in view that in this petition we cannot sit as a
court of appeal and try to reassess the relative
merits of the candidates concerned who had
been assessed at the oral interview nor can the
petitioners successfully urge before us thatW.P.(C) No.1134 of 2026 Page 68 of 88
they were given less marks though their
performance was better. It is for the Interview
Committee which amongst others consisted of
a sitting High Court Judge to judge the relative
merits of the candidates who were orally
interviewed, in the light of the guidelines laid
down by the relevant rules governing such
interviews. Therefore, the assessment on
merits as made by such an expert committee
cannot be brought in challenge only on the
ground that the assessment was not proper or
justified as that would be the function of an
appellate body and we are certainly not acting
as a court of appeal over the assessment made
by such an expert committee.‟12.2. The observations appear to be a rational as the
litigation cannot be termed as a game of chance nor
a person should be permitted to take a chance after
participating in a tender process and challenging the
terms and conditions of the tender call notice having
unsuccessful therefrom. The principle of estoppel
must also stand in the way of such litigant as a
person cannot be permitted to approbate and
reprobate at the same time. If by conduct a person
has done something, he cannot be permitted to
retract therefrom as the estoppel will come on the
way of such errant litigant.”
8.10. The reason assigned by the Chairman, OMC for
cancellation of the tender on the ground of restrictive
experience criteria at this stage is, thus, found to be
without foundational fact to impeach processW.P.(C) No.1134 of 2026 Page 69 of 88
undertaken in the tender and, therefore, the order of
cancellation of tender is whimsical and arbitrary.
9. Another pertinent fact which is noticed from Noting
No.59 (paragraph 24) of the Chairman, OMC is this, that
in the garb of maintaining transparency and fairness, it
is highlighted that:
“while achieving a significantly lower rate through reverse
auction may appear financially advantageous, for a State
Public Sector Undertaking the integrity of the procurement
process is equally important. A low rate achieved through
a process that is later found to be restrictive or unfair may
expose the organisation to legal, audit and vigilance
scrutiny. Sustainable value for money is achieved only
when price outcomes result from genuine and fair
competition. Therefore, both the rate achieved and the
fairness and transparency of the process must be given
equal importance.”
9.1. Feasibility of performance at the rate quoted is domain
of the petitioner. It assessed itself with respect to
performance vis-a-vis the price it quoted. On the
contrary the file containing notings of different
authorities including the Chairman, OMC does not
demonstrate that such rate is unreasonably low which
the petitioner would be unable to perform the work to be
entrusted under the tender. In fact if the Chairman
decides to cancel the tender on being not satisfied that
the willing bidder is incapable of complying with the
obligations at such low rates, he ought to have brought
W.P.(C) No.1134 of 2026 Page 70 of 88
on record material data. Whereas the complainant-M/s.
Kalinga Commercial Corporation Limited has quoted
Rs.133.00P. per MT, the petitioner quoted Rs.132.50P.
per MT in the reverse auction bidding process. While so,
the Chairman, OMC taking into account the objection of
M/s. Kalinga Commercial Corporation Limited,
discarded the opinions rendered by different
officials/technical personnel, as is manifest from notings
in the file. Nothing is available on the file to conceive
that the Chairman had conceivable data to compare the
prices in order to ascertain the feasibility of
performance. Mere subjective appreciation without any
evidence on record that such price quoted by the
petitioner is unimaginable or unworkable would not
warrant cancellation of the tender.
9.2. The perception of the Chairman, OMC that fresh tender
would invite more participants on modifying the
restrictive condition is unfounded for the simple reason
that the opposite parties themselves have enclosed with
the counter affidavit the response to pre-bid queries
wherefrom it emanates that a corrigendum was issued to
remove restrictive criteria. The technical experts at the
time of inviting bids perceived such condition to be
germane and essential. Article 23 of the RfP provided for
―restriction on the sub-contracting‖. All the conditions of
W.P.(C) No.1134 of 2026 Page 71 of 88
RfP were considered meticulously before opening of
technical bid.
9.3. In the counter affidavit it is the stand of the opposite
parties that in order to attract more participation, the
tender has been cancelled. Learned Senior Counsel
appearing for OMC at the outset sought to impress upon
that the cancellation is simpliciter. Minute reading of
notings in the file particularly Noting No.56, dated
02.01.2026 would reveal that as many as nine numbers
of bidders were found qualified the technical and the
financial criteria. The names of such bidders do find
place at Noting No.57, dated 02.01.2026, wherefrom it
can be ascertained that whereas M/s. Kalinga
Commercial Corporation and M/s. BS Mining
Corporation Private Limited have submitted their bids by
the original due date (27.11.2025) and M/s. Mythri
Infrastructure and Mining India Private Limited
(petitioner) and M/s. Rocktech Engineers have
submitted their bids within the extended period
(04.12.2025). There appears no anomaly in such
furnishing bids in the extended period. It is noticed from
paragraphs 3 and 4 in the Noting No.59, dated
05.01.2026 that the Chairman, OMC being conscious of
outcome of 10th Board Technical Meeting held on
30.10.2025 put his signature without any demur on that
date and approved the RfP; but it is queer to note that
W.P.(C) No.1134 of 2026 Page 72 of 88
after entire process of auction came to an end (reverse
auction process being over) on the objection of an
unsuccessful bidder the Chairman seeks to feign
ignorance regarding experience criteria relating to
―crushing and screening operation of at least 500 TPH‖.
Having approved the RfP, the tender process progressed.
At the verge of its culmination, it is unwholesome for the
Chairman, OMC to show denigration.
9.4. It is well-settled that without bringing on record the
reasons ascribed in the file notings by way of counter-
affidavit or the same being not communicated, the order
for cancellation of tender cannot be sustained in view of
ratio of judgment rendered by the Hon’ble Supreme
Court of India in the case of Mohinder Singh Gill Vrs. The
Chief Election Commissioner, (1978) 3 SCR 272, which
laid down that:
“The second equally relevant matter is that when a
statutory functionary makes an order based on certain
grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons
in the shape of affidavit or otherwise. Otherwise, an order
bad in the beginning may, by the time it comes to court on
account of a challenge, get validated by additional
grounds later brought out. We may here draw attention to
the observations of Bose, J. in Gordhandas Bhanji
[Commr. of Police, Bombay Vrs. Gordhandas Bhanji, 1951
SCC 1088 = AIR 1952 SC 16]:
W.P.(C) No.1134 of 2026 Page 73 of 88
„Public orders, publicly made, in exercise of a statutory
authority cannot be construed in the light of explanations
subsequently given by the officer making the order of
what he meant, or of what was in his mind, or what he
intended to do. Public orders made by public authorities
are meant to have public effect and are intended to affect
the actings and conduct of those to whom they are
addressed and must be construed objectively with
reference to the language used in the order itself.‟Orders are not like old wine becoming better as they grow
older.”
9.5. The Tender Cancellation Notice dated 05.01.2025 is
bald, cryptic and bereft of reason and the reason culled
out from the notings contained in the file, submitted
during the course of hearing, is not in consonance with
the stand taken in the counter affidavit. Needless to say
that the Chairman, OMC attempted to make out a new
case particularly when no such fact existed at the time
of floating of tender and the self-appraisal is made on
the basis of objection of M/s. Kalinga Commercial
Corporation Limited, unsuccessful bidder, after
participating in the final stage, i.e., reverse auction
process. It is demonstrably manifest that the Chairman,
OMC has disbelieved the notings of his own officials
justifying the eligibility criteria.
9.6. The Chairman, OMC in his notings emphasised
―transparency‖. In V.K. Majotra Vrs. Union of India,
W.P.(C) No.1134 of 2026 Page 74 of 88
(2003) 8 SCC 40, the Supreme Court of India held as
under:
“*** The writ courts would be well advised to decide the
petitions on the points raised in the petition and if in a
rare case, keeping in view the facts and circumstances of
the case, any additional points are to be raised then the
concerned and affected parties should be put to notice on
the additional points to satisfy the principles of natural
justice. Parties cannot be taken by surprise.***”
9.7. As recorded in the noting, being Noting No.59, dated
05.01.2026, the Chairman, OMC admitted to have
approved the RfP. It is left for internal administration
whether facts were appropriately presented before him
by any of the officials. At this juncture it is inconceivable
that the Chairman, OMC has mechanically approved the
RfP without application of mind and/or perusal of
record. The doubt/suspicion entertained by the
Chairman in his Noting No.59, dated 05.01.2026
suggesting for cancellation of tender is without
foundational fact and on extraneous material de hors the
records. Article 14 of the Constitution of India strikes at
arbitrariness in the action of authority concerned. Such
action must not be arbitrary but must be based on some
rational and relevant principle which is non-
discriminatory: it must not be guided by any extraneous
or irrelevant considerations, because that would be
denial of equality. The principle of reasonableness and
W.P.(C) No.1134 of 2026 Page 75 of 88
rationality which is legally as well as philosophically an
essential element of equality or non-arbitrariness is
projected in Article 14 and it must characterise every
action of the authority, whether it be under authority of
law or in exercise of executive power without making of
law. The State/PSU cannot, therefore, act arbitrarily in
entering into relationship, contractual or otherwise with
a third party, but its action must conform to some
standard or norm which is rational and non-
discriminatory. [See, Ramana Dayaram Shetty Vrs.
International Airport Authority of India, (1979) 3 SCC
489].
10. With the above conspectus of legal perspective, the
approach of the Chairman, OMC to cancel the tender on
the assumed scope for audit and vigilance and by
discarding the opinion demonstrating justification by the
officers/technical experts to proceed with the tender is
without comprehension. Hence, the Tender Cancellation
Notice dated 05.01.2026 cannot be countenanced in law.
Judicial review vis-a-vis criteria of past performance and
experience:
11. During the pendency of the writ petition an Additional
Affidavit dated 13.01.2026 has come to be filed by the
petitioner enclosing therewith copy of the RfP, dated
03.11.2025 issued by the Chief General Manager
W.P.(C) No.1134 of 2026 Page 76 of 88
(Mining), Odisha Mining Corporation Limited for
―Selection of Mine Operator for Kodingamali Bauxite
Mine through Reverse Auction Bidding Process‖. The file
placed before this Court by Sri Pravat Kumar Muduli,
learned Advocate for the OMC for perusal in order to
refer and rely on the official notings for the purpose of
addressing the issues raised in the writ petition reveals
that the CGM (Mining) in Noting No.1 stated thus:
“Further a Committee consisting of site team and HO team
(Production, PMC and Geology) deliberated on fixing the
technical parameters and scope of work related to floating
of tender in respect of Kodingamali Bauxite Ore Mines.
The Committee proceedings related to fixation of technical
parameters is placed at 10717/OMC/2025 Kodingamali
Committee Proceedings 22.09.25‟page1.”
11.1. The File routed through Director (Operations) and
Director (Finance). The file moved through Committee
during the course of bidding process. After reverse
auction bidding process is completed on 17.12.2025, the
Chairman, OMC on 19.12.2025 vide Noting No.53 dealt
with the objection of the unsuccessful bidder, namely
M/s. Kalinga Commercial Corporation Limited.
Thereafter the technical personnel/officials including
Managing Director, Director (Operations), Chief General
Manager (Mining) have recorded their opinions about the
justification for putting condition relating to Crushing
and Screen experience of at least 500 TPH. Such
W.P.(C) No.1134 of 2026 Page 77 of 88
eligibility criterion is also apprised as a technical
requirement. The Director (Operations) also in his Noting
No.57 specifically stated that:
“Out of 6 bidders deposited the Bid Document Cost, only
four numbers of bidder submitted their Bid. After
evaluation two numbers of bidders namely M/s. BS
Mining Corporation Private Limited and M/s. Roctech
Engineers were disqualified due to non-fulfilment of
annual value of work done as required under technical
criteria 4.1.1 (A).
Accordingly as per tender condition the Financial Bid of
the other 2 (two) qualified bidders namely M/s. Kalinga
Commercial Corporation and M/s. Mythri Infrastructure
and Mining India Private India opened through MSTC
portal by the Price Bid Opening Committee.
Further Reverse Auction was conducted on 17.12.2025 at
12.00 P.M. with initial price of Rs.252/-. Reverse Auction
was closed on 18.12.2025 at 12.58 A.M. wherein M/s.
Mythri Infrastructure and Mining India Private Limited
was emerged to be L-1 bidder with lowest quoted price of
Rs.132.50/MT.”
11.2. The notings revealed the technical experts have fixed the
criteria for the nature of work advertised in the RfP. The
Noting of the Chairman, OMC does not percolate any
mala fide, misstatement or fraud being committed by the
technical Committee or the petitioner. However, the pre-
bid response confirms that the terms of tender would
prevail.
W.P.(C) No.1134 of 2026 Page 78 of 88
11.3. This Court is led to believe on perusal of notings in the
file that author’s perception has been clearly recorded
and at the ipse dixit of the Chairman, OMC such valued
opinions could not be discarded without assigning
cogent and germane reason.
11.4. The view expressed by the Hon’ble Supreme Court of
India in Agmatel India Pvt. Ltd. Vrs. Resoursys Telecom,
(2022) 18 SCR 861 regarding Interpretation of Tender
Document: Relevant Principles is apt to be quoted:
“16. 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 3-
Judge Bench decision of this Court in Galaxy
Transport Agencies Vrs. New J.K. Roadways, 2020
SCC OnLine SC 1035 wherein, among others, the
said decision in Afcons Infrastructure Limited Vrs.
Nagpur Metro Rail Corporation Limited, (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. This Court referred to
various decisions on the subject and stated the legal
principles as follows:
W.P.(C) No.1134 of 2026 Page 79 of 88
„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. Vrs. Nagpur Metro
Rail Corporation Ltd., (2016) 16 SCC 818, this
Court held:
„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.‟
15. In the judgment in Bharat Coking Coal Ltd. Vrs.
AMR Dev Prabha, 2020 SCC OnLine SC 335,
under the heading “Deference to authority‟s
interpretation”, this Court stated:
„51. Lastly, we deem it necessary to deal with
another fundamental problem. It is
obvious that Respondent No. 1 seeks to
W.P.(C) No.1134 of 2026 Page 80 of 88
only enforce terms of the NIT. Inherent in
such exercise is interpretation of
contractual terms. However, it must be
noted that judicial interpretation of
contracts in the sphere of commerce
stands on a distinct footing than while
interpreting statutes.
52. In the present facts, it is clear that BCCL
and India have laid recourse to Clauses
of the NIT, whether it be to justify
condonation of delay of Respondent No. 6
in submitting performance bank
guarantees or their decision to resume
auction on grounds of technical failure.
BCCL having authored these documents,
is better placed to appreciate their
requirements and interpret them. (Afcons
Infrastructure Ltd. Vrs. Nagpur Metro Rail
Corporation Ltd., (2016) 16 SCC 818).
53. The High Court ought to have deferred to
this understanding, unless it was
patently perverse or mala fide. Given how
BCCL‟s interpretation of these clauses
was plausible and not absurd, solely
differences in opinion of contractual
interpretation ought not to have been
grounds for the High Court to come to a
finding that the appellant committed
illegality.‟
16. Further, in the recent judgment in Silppi
Constructions Contractors Vrs. Union of India,
2019 SCC OnLine SC 1133, this Court held as
follows:
W.P.(C) No.1134 of 2026 Page 81 of 88
„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, 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.‟
17. In accordance with these judgments and noting
that the interpretation of the tendering
authority in this case cannot be said to be a
perverse one, the Division Bench ought not to
have interfered with it by giving its own
interpretation and not giving proper credence to
the word “both” appearing in Condition No.31
of the N.I.T. For this reason, the Division
W.P.(C) No.1134 of 2026 Page 82 of 88
Bench‟s conclusion that JK Roadways was
wrongly declared to be ineligible, is set aside.
18. Insofar as Condition No. 27 of the N.I.T.
prescribing work experience of at least 5
years of not less than the value of Rs.2
crores is concerned, suffice it to say that
the expert body, being the Tender Opening
Committee, consisting of four members,
clearly found that this eligibility
condition had been satisfied by the
Appellant before us. Without therefore going
into the assessment of the documents that
have been supplied to this Court, it is well
settled that unless arbitrariness or mala fide
on the part of the tendering authority is
alleged, the expert evaluation of a particular
tender, particularly when it comes to technical
evaluation, is not to be secondguessed by a
writ court. Thus, in Jagdish Mandal Vrs. State
of Orissa, (2007) 14 SCC 517, this Court noted:
„22. ***‟
19. Similarly, in Montecarlo Ltd. Vrs. NTPC Ltd.,
(2016) 15 SCC 272, this Court stated as
follows:
„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. ItW.P.(C) No.1134 of 2026 Page 83 of 88
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
W.P.(C) No.1134 of 2026 Page 84 of 88
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.‟
20. This being the case, we are unable to fathom
how the Division Bench, on its own appraisal,
arrived at the conclusion that the Appellant
held work experience of only 1 year,
substituting the appraisal of the expert four-
member Tender Opening Committee with its
own.‟
17. The above-mentioned statements of law make it
amply clear that the author of the tender
document is taken to be the best person to
understand and appreciate its requirements;
and if its interpretation is manifestly in
consonance with the language of the tender
document or subserving the purchase of the
tender, the Court would prefer to keep
W.P.(C) No.1134 of 2026 Page 85 of 88
restraint. Further to that, the technical evaluation
or comparison by the Court is impermissible; and
even if the interpretation given to the tender
document by the person inviting offers is not as such
acceptable to the Constitutional Court, that, by itself,
would not be a reason for interfering with the
interpretation given.
***
24.2. The same aspects apply to the observations
regarding „contra proferentem rule‟ as referred by
the High Court with reference to the case of United
India Insurance Co. Ltd. Vrs. Orient Treasures (P)
Ltd. (2016) 3 SCC 49. The said rule was referred by
this Court while not accepting the argument made on
behalf of the insured and while observing that the
said rule had no application, when the language of
the relevant clauses was plain, clear and
unambiguous. We may, however, observe that even
from the extracted part of the principles related with
the „contra proferentem rule‟, as reproduced by this
Court from the Halsbury‟s Laws of England, it is
clear that the said rule was applied in the case
of ambiguity in the insurance policy because
the policies are made by the insurer and its
ambiguity cannot be allowed to operate against
the insured. This rule, in our view, cannot be
applied to lay down that in case of any ambiguity in
a tender document, it has to be construed in favour
of a particular person who projects a particular view
point. The obvious inapplicability of this doctrine to
the eligibility conditions in a notice inviting tender
could be visualised from a simple fact that in case of
ambiguity, if two different tenderers suggest two
W.P.(C) No.1134 of 2026 Page 86 of 88
different interpretations, the question would always
remain as to which of the two interpretation is to be
accepted? Obviously, to avoid such unworkable
scenarios, the principle is that the author of
the tender document is the best person to
interpret its documents and requirements. The
only requirement of law, for such process of
decision-making by the tender inviting
authority, is that it should not be suffering
from illegality, irrationality, mala fide,
perversity, or procedural impropriety. No such
case being made out, the decision of the tender
inviting authority (NVS) in the present case was not
required to be interfered with on the reasoning that
according to the writ Court, the product “Smart
Phone” ought to be taken as being of similar
category as the product “Tablet”.”
11.5. Abreast with the aforesaid principles, there is no escape
than to hold that the Chairman, OMC is not justified in
passing order to cancel the tender in its entirety and
issuing direction to initiate fresh bidding process free
from ―arbitrary and restrictive eligibility condition‖.
Hence, this Court exercising power of judicial review
under Article 226 of the Constitution of India quashes
the Tender Cancellation Notice dated 05.01.2026.
Conclusion:
12. From whatever angle the matter is looked at, this Court
does not find any legality in the order of the Chairman,
OMC and justification of the Chairman, OMC to override
W.P.(C) No.1134 of 2026 Page 87 of 88
the views/opinions of the technical experts. The
decision-making process leading the Chairman to direct
for cancelling the tender in entirety is flawed with in the
light of discussions made in the foregoing paragraphs.
The Tender Cancellation Notice dated 05.01.2026 issued
by the Chief General Manager (Mining), Odisha
(Annexure-10) cannot be countenanced and hence, the
same is quashed and set aside.
12.1. The opposite parties are required to proceed with
completion of formalities in connection with RfP, dated
03.11.2025.
12.2. The writ petition is allowed, but in the circumstances
with no order as to costs.
12.3. Pending Interlocutory Applications, if any, shall stand
disposed of accordingly.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal Assistant
(Secretary-in-charge)
Reason: Authentication
Location: ORISSA HIGH
High Court of Orissa, Cuttack
COURT, CUTTACK
Date: 31-Mar-2026 20:00:18
The 31st March, 2026/Aswini/Bichi/MRS
W.P.(C) No.1134 of 2026 Page 88 of 88
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