Surojit Sen vs The State Of Assam And Ors
- Court
- Gauhati High Court
Page No.# 1/20
GAHC010200452025
2026:GAU-AS:16406
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5228/2025
SUROJIT SEN
S/O LT ANIL KUMAR SEN R/O CHANDICHARAN ROAD, J P SARANI, HOUSE
NO. 19 SILCHAR, PO RANGIRKHARI PS SILCHAR DIST CACHAR, ASSAM
788005
VERSUS
THE STATE OF ASSAM AND ORS
TO BE REP BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE
GOVT O F ASSAM PWRD, DISPUR, GUWAHATI 6
2:THE CHIEF ENGINEER ROADS
PWRD
CHANDMARI
GUWAHATI 3
ASSAM
3:THE SUPERINTENDING ENGINEER
PWRD
CACHAR ROAD CIRCLE
SILCHAR CACHAR
ASSAM 788001
4:THE EXECUTIVE ENGINEER
PWRD
BORKHOLA AND KATIGORAH TERRITORIAL ROAD DIVISION
KATIGORAH DIST CACHAR
ASSAM 78880
Advocate for the Petitioner : MR. B J GHOSH, MR. A M S MAZUMDER,A W BARBHUIYA
Advocate for the Respondent : SC, PWD ROAD,
Page No.# 2/20
Linked Case : WP(C)/4799/2025
SUROJIT SEN
S/O LT ANIL KUMAR SEN R/O CHANDICHARAN ROAD
J P SARANI
HOUSE NO 19
SILCHAR
PO RANGIRKHARI PS SILCHAR DIST CACHAR
ASSAM 788005
VERSUS
THE STATE OF ASSAM AND ORS
TO BE REP BY THE COMMISSIONER AND SPECIAL SECRETARY TO THE
GOVT OF ASSAM PUBLIC WORKS ROAD DEPARTMENT
DISPUR
GUWAHATI 6
2:THE CHIEF ENGINEER ROADS
PWRD
ASSAM
CHANDMARI
GUWAHATI 3
ASSAM
3:THE SUPERINTENDING ENGINEER
PWRD
CACHAR ROAD CIRCLE
SILCHAR
ASSAM 788001
4:THE EXECUTIVE ENGINEER
PWRD
BORKHOLA AND KATIGORAH TERRITORIAL ROAD DIVISION
KATIGORAH
CACHAR
ASSAM 788801
------------
Page No.# 3/20
BEFORE
HON’BLE MR. JUSTICE DEVASHIS BARUAH
For the Petitioner(s) : Mr. B. J. Ghosh, Advocate
For the Respondent(s) : Mr. B. Gogoi, Addl. AG, Assam
: Mr. M. Bhuyan, Advocate
· Date on which Judgment was reserved : NA
· Date of Pronouncement of Judgment : 05.11.2026
· Whether the pronouncement is of
the Operative Part of the Judgment : Yes
· Whether the full Judgment has been
Pronounced : NA
JUDGMENT AND ORDER (ORAL)
Heard Mr. B. J. Ghosh, the learned counsel appearing on behalf
of the Petitioner in both the writ petitions and Mr. B. Gogoi, the
learned Additional Advocate General as well as the Standing
counsel of the PWRD appears on behalf of the Respondent Nos. 1
to 4 in both the writ petition.
2. Both the writ petitions are taken up for disposal by this
common judgment and order, taking into account that the disputes
raised in both the writ petitions are inter-connected.
BRIEF FACTS OF THE CASE:
Page No.# 4/20
3. The Office of the Chief Engineer (Roads), PWRD, Assam, had
issued a Notice Inviting Tender dated 05.09.2024, thereby inviting
bids for various packages for improvement and construction of
roads in Tea Garden Areas under RIDF-XXX of NABARD for the year
2024-25. In the said Notice Inviting Tender, there were in total 156
packages and the present writ petition is in respect to Package
No.96 (for short ‘the package in question’) i.e. construction of road
from Jellalpore Rymbai Road to Kalaincherra BSF Camp via
Nalanpur Garden LP School at Kalaincherra Tea Estate under RIDF-
XXX of NABARD for the year 2024-25 and The package number in
question is TE_RIDF_XXX_24_25_96. The estimated contract price
was Rs.100 Lakhs, the bid security was Rs.2,00,000/-, and the
tender processing fee was Rs.2,000/-. The period of completion of
the work was 9 (nine) months.
4. The Petitioner, along with various other bidders, submitted
their bids for the package in question. The Petitioner's bid was
found to be technically responsive and upon opening of the
financial bid, it was found that the Petitioner's bid was the lowest
i.e. Rs.90,00,000/-. Thereupon, a Letter of Acceptance was issued
on 07.03.2025 intimating the Petitioner that the Petitioner's bid was
accepted by the agency and the Petitioner was directed to furnish
the Performance Security in favour of the Chief Engineer (Roads),
Page No.# 5/20
PWRD, Assam, in the form of TDR/FDR/Bank Guarantee, as
detailed in Para 34.1 of the Instruction to Bidders (for short “ITB”),
for an amount equivalent to Rs.1,80,000/- within 10 (ten) days
from the issuance of the Letter of Acceptance valid up to 45 days
from the date of expiry of the defects liability period and sign the
contract, failing which action as stated in Para 34.3 of ITB would
be taken.
5. The Petitioner accordingly furnished the Performance Security
in the form of a Term Deposit Advice for an amount of
Rs.1,80,000/-, having a value date of 10.03.2025 and a maturity
date of 10.03.2030. Verification was carried out by the Respondent
Authorities to the said Term Deposit Advice and the Union Bank of
India had duly verified the Performance Security so submitted on
11.03.2025.
6. It is the further case of the Petitioner that the Petitioner also
signed the contract document and handed it over to the
Respondent Authorities on 11.03.2025. The Petitioner further
carried out inspection of the site on 18.03.2025. To the surprise of
the Petitioner, the Respondent Authorities, however, did not issue
the work order or provided a copy of the agreement. Under such
circumstances, taking into consideration that the completion period
Page No.# 6/20
mentioned in the tender document was 9 (nine) months, the
Petitioner filed a writ petition being WP(C) No.2963/2025. When
the said writ petition was taken up by the learned Coordinate
Bench of this Court on 13.06.2025, the learned Standing counsel of
the Public Works Road Department had placed a parawise
reply/comments dated 05.06.2025, wherein it was mentioned that
the Respondent Authorities were not inclined to issue the final
work order to the Petitioner. It is under such circumstances, the
learned Coordinate Bench of this Court, vide the order dated
13.06.2025 in WP(C) No.2963/2025 observed that the decision of
the Respondent Authorities not to issue the work order to the
Petitioner should be formally communicated to the Petitioner within
a period of 1 (one) week from the date of receipt of the certified
copy of the order.
7. In spite of the directions passed by the learned Coordinate
Bench of this Court in the order dated 13.06.2025 in WP(C)
No.2963/2025 to communicate the formal decision to the Petitioner
within a period of 1 (one) week from the date a certified copy of
the order was served, no such information was provided to the
Petitioner. On the other hand, a fresh Notice Inviting Tender dated
01.08.2025 was issued by the Chief Engineer (Roads), Public
Works Roads Department. The Petitioner being aggrieved by such
Page No.# 7/20
actions on the part of the Respondent Authorities, filed the writ
petition before this Court which is registered and numbered as
WP(C) No.4799/2025.
8. This Court vide an order dated 22.08.2025, while issuing
notice passed a detailed order directing that the decision not to
issue the work order to the Petitioner as directed by the learned
Coordinate Bench in the order dated 13.06.2025 in WP(C)
No.2963/2025 be intimated to the Petitioner inasmuch as without
such intimation, Petitioner's valuable right to assail such a decision
is taken away. This Court further granted liberty to the Petitioner to
submit his bid in pursuance to the impugned Notice Inviting
Tender, which would be without prejudice to the rights of the
petitioner in WP(C) No.4799/2025.
9. The records reveal that in pursuance thereto, a
communication dated 24.06.2025 was handed over to the learned
counsel for the petitioner on 26.08.2025 itself. Being aggrieved by
the communication dated 24.06.2025, which was served upon the
learned counsel for the petitioner on 26.08.2025, the Petitioner
had filed the second writ petition being WP(C) No.5228/2025.
10. This Court vide an order dated 08.09.2025 issued notice and
Page No.# 8/20
further directed that all steps taken subsequent to the
communication dated 24.06.2025 shall be subject to the outcome
of the writ petition.
11. The records reveal that in both the writ petitions, the
respondents have filed their affidavit-in-opposition. In WP(C)
No.5228/2025, the Respondent No.2 has filed a preliminary
affidavit as well as an additional affidavit. In the preliminary
affidavit, the Respondent No.2 has alleged that while carrying out
the verification, it revealed that the Petitioner had submitted a
false affidavit at the time of tendering, claiming ownership and
availability of required machinery and manpower and details in that
regard were also provided. It was further mentioned that the
Petitioner's bid was non-compliant with Clause 4.5A and other
relevant provisions of the ITB.
12. To the said preliminary affidavit, an affidavit-in-reply was filed
by the Petitioner giving point-by-point reply that the Petitioner was
duly qualified and had all the necessary requirements for the
purpose of being technically competent in the tender process.
Details to that effect were also enclosed to the affidavit-in-reply.
13. An additional affidavit was filed by the Respondent No.2,
Page No.# 9/20
wherein it was alleged that upon carrying out necessary
verifications, it was found that the Petitioner did not have the
requisite qualifications in a sense that not all technical employees
were found on regular payroll; the machinery listed in the tender
documents was not owned, all hired upto date insurance/tax not
paid; the petitioner had a history of poor performance and
litigation in previous works and the firm lacked adequate
experience in works of similar magnitude. It was also mentioned
that in order to avoid project delays, cost escalation, and to
prevent further loss to the exchequer, the department had taken
the decision not to issue the work order in favour of the Petitioner.
14. The records further reveal that the Petitioner had also filed a
detailed affidavit in response to the additional affidavit filed by the
Respondent No.2.
15. In the backdrop of the above, let this Court now consider the
respective submissions on behalf of the parties.
SUBMISSIONS MADE BY THE LEARNED COUNSELS FOR THE
PARTIES:
16. Mr. B. J. Ghosh, the learned counsel appearing on behalf of
the Petitioner had submitted that the Petitioner was technically
Page No.# 10/20
qualified and was also the lowest bidder. It is only for extraneous
reasons, the Respondent Authorities did not want to issue the work
order to the Petitioner in spite of issuance of the Letter of
Acceptance. The learned counsel appearing on behalf of the
Petitioner further drawing the reference to the affidavits-in-reply
filed to the preliminary affidavit as well as the additional affidavit
filed by the Respondent No.2 submitted that the Petitioner had all
the requisite documents which would clearly show that the
Petitioner was technically qualified and had the requisite manpower
and the machineries. The learned counsel further submitted that
fresh conditions were sought to be incorporated in order to deprive
the Petitioner. In addition to that, the learned counsel appearing on
behalf of the Petitioner submitted that the question of cancellation
of the tender and going for a fresh tender is completely foreign in
the facts of the instant case, inasmuch as, with the issuance of the
Letter of Acceptance, a contract had come into existence more so,
when the Performance Security was submitted within the time as
stipulated in the Letter of Acceptance.
17. The learned counsel submitted that this is a pure case of
malice in fact and malice in law and as such, this Court ought not
only set aside the impugned communication dated 24.06.2025, but
also the subsequent Notice Inviting Tender which was issued which
Page No.# 11/20
is impugned in WP(C) No.4799/2025. The learned counsel for the
Petitioner further submitted that upon the Letter of Acceptance
being issued, there is a formation of a contract as would be seen
from Para 33.2 of the ITB, and therefore, the question of
cancellation of the tender is totally misconceived. At best, steps
could have been taken for termination, which is envisaged under
Para 59 of the conditions of the contract, provided there was any
fundamental breach of the contract.
18. Per contra, Mr. B. Gogoi, the learned Standing counsel
appearing on behalf of the PWRD submitted that after the issuance
of the Letter of Acceptance, due verifications were carried out and
it was found that the Petitioner had submitted a false affidavit at
the time of tendering, claiming ownership and availability of the
required machinery and manpower. The Petitioner had suppressed
the facts that he had a history of poor performance and litigation in
previous works. The Petitioner also did not have the adequate
experience in works of similar magnitude. The learned Standing
counsel further submitted that in terms with Clause 4.8 of the ITB,
when a bidder makes misleading or false representation in the
forms, statements, and enclosures submitted as a proof of
qualification requirement, or record of poor performance such as
abandoning the works, not properly completing the contract,
Page No.# 12/20
inordinate delay in completion, litigation history and financial
failure, etc., the bidders can be disqualified. He further submitted
that issuance of a Letter of Acceptance did not create any
enforceable right upon the Petitioner, and as such, both the writ
petition lack merit, for which the same are required to be
dismissed.
19. This Court has heard the learned counsels appearing on behalf
of the parties and has perused the materials on record.
ANALYSIS AND DETERMINATION:
20. From the materials on record, more particularly, the tender
summary reports dated 15.05.2025, it is apparent that the
petitioner along with four other bidders were held to be technically
responsive. The petitioner was also the lowest bidder who
submitted a bid of Rs.90,00,000/- for the package in question. The
Letter of Acceptance was issued on 07.03.2025, asking the
Petitioner to deposit the performance security equivalent to
Rs.1,80,000/- in the form of TDR/FDR/Bank Guarantee. The
Petitioner duly submitted the Term Deposit Advice on 10.03.2025
which is within the period of 10 days as mentioned in the Letter of
Acceptance.
Page No.# 13/20
21. In the backdrop of the above, let this Court now take note of
some of the provisions of the tender. The Notice Inviting Tender
contained various Sections. Section 1 is the Instruction to Bidders.
The Instruction to Bidders had various parts. Part F is with the
heading "Award of Contract". Para 33 of the Instruction to the
Bidders is of relevance inasmuch as it is under the heading
“Notification of Award and Signing of Agreement”. The said Para
being relevant is reproduced herein under:
“ 33. Notification of Award and Signing of Agreement
33.1 The Bidder whose Bid has been accepted will be notified of the award
by the Employer prior to expiration of the Bid validity period by
cable, telex or facsimile confirmed by registered letter. This letter
(hereinafter and in the Conditions of Contract called the "Letter of
Acceptance") will state the sum that the Employer will pay the
Contractor in consideration of the execution, completion and
maintenance of the Works by the contractor as prescribed by the
contract (hereinafter and in the contract called the "Contract
Price").
33.2 The notification of award will constitute the formation of the
Contract, subject only to the furnishing of a performance security in
accordance with provision of Clause 34.
33.3 The Agreement will incorporate all Agreement between the Employer
and the successful Bidder. The successful bidders will furnish
performance security within 10 (ten) days and sign the agreement
Page No.# 14/20
within 21 (twenty one) days following the notification of award
(letter of acceptance).
33.4 Upon the furnishing by the successful Bidder of the performance
security, the Employer will promptly notify the other bidders that
their Bids have been unsuccessful.”
22. From a perusal of the above quoted Para and more particularly
Para 33.1, it appears that the bidder whose bid is accepted would
be notified of the award by the employer prior to the expiration of
the bid validity period. This letter by which such intimation shall
be made shall be called the Letter of Acceptance. Para 33.2 is of
vital significance, inasmuch as, it is mentioned that the notification
of the award would constitute the formation of the contract and
the exception being the furnishing of the performance security in
accordance with the provisions of Para 34.
23. Para 34 of the ITB refers to the Performance Security. The
said Para 34 being relevant is reproduced herein under:
“ 34. Performance Security
34.1 Within 10 (ten) days of issue of the letter of acceptance, the successful
Bidder shall deliver to the Employer a performance security in any of the
forms given below for an amount equivalent to 2% of the contract price
plus additional security of unbalance bids in accordance with Clause 29.5
Page No.# 15/20
of ITB and Clause 52 of conditions of Contract.
Ø A bank guarantee in the form given in section 8; Or
Ø Bank FDR.
Validity Period: As Below
(i) Performance security shall be valid for the period of 45 days after the
expiry of Liability Period of 5 (Five) years from the date of completion
of work.
34.2 If the performance security if provided by the successful bidder in the form
of a bank Guarantee, it shall be issued either (a) at the bidders option, by
a nationalized/schedule Indian Bank or (b) by a Foreign Bank located in
India approved by RBI and acceptable to the Employer.
34.3 Failure of the successful bidder to comply with the requirements of Sub-
Clause 34.1 shall constitute sufficient grounds for cancellation of the
award and forfeiture of the bid security.
34.4 Deleted.”
24. A conjoint reading of Para 33 and 34 of the Instruction to
Bidders would show that the notification of the award would
constitute the formation of the contract, and it is only when the
Performance Security is not furnished, then only the award of the
contract can be cancelled by forfeiting the bid security. This is the
Page No.# 16/20
mandate of Para 34.3. In other words, the issuance of the Letter
of Acceptance on 07.03.2025 and the submission of the
Performance Security on 10.03.2025 led to the formation of the
contract between the Petitioner and the Respondent Authorities. It
is well settled that once the contract has been formed, the
discharge of the said contract can only be as per the terms of the
Indian Contract Act, 1872 or the terms of the contract. Therefore,
the question of cancellation of the Letter of Acceptance is
completely foreign once the contract has been formed.
25. This Court now finds it relevant to take note of the
communication dated 24.06.2025, which is assailed in WP(C)
No.5228/2025. A perusal of the said communication dated
24.06.2025 assigns no reasons as to why the work order was not
issued and the Respondent Authorities are not willing to permit the
Petitioner to perform his part of the contract. In the preliminary
affidavit as well as in the additional affidavit reasons have been
assigned.
26. At this stage, this Court finds it relevant to take note of the
judgment of the Supreme Court in the case of Mohinder Singh Gill
and Another Vs. Chief Election Commissioner, New Delhi and
Others reported in (1978) 1 SCC 405 and more particularly
Page No.# 17/20
Paragraph No.8, wherein the Supreme Court observed that an
order passed has to be judged on the basis of the reasons
contained in the said order and not upon subsequent explanation
being provided by way of affidavit. Paragraph No.8 of the said
judgment being relevant is reproduced herein under.
“ 8. 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:
“ 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.”
27. Now let this Court take into consideration the challenge to the
Notice Inviting Tender dated 01.08.2025 which is the subject
matter of challenge in WP(C) No.4799/2025. In the foregoing
discussions, this Court has categorically held that upon the
issuance of the Letter of Acceptance and submission of the
Page No.# 18/20
Performance Security, there is a formation of the contract. Once
the contract has been formed, such contract has to be discharged
as per the modes available under the Indian Contract Act, 1872, or
as per the terms and conditions of the contract between the
Petitioner and the Respondents. Taking into account the reasons so
assigned, it may at best be a case of a termination of a contract
and under no circumstances, it can be a case of a cancellation of
the Letter of Acceptance to deprive the Petitioner of the benefits of
the formation of the contract between the Petitioner and the
Respondents.
28. Under such circumstances, in view of the existence of
subsisting contract between the Petitioner and the Respondents in
respect to the package in question, the Respondent Authorities
could not have gone for a fresh tender in respect to the same
package. It is therefore the opinion of this Court that the Notice
Inviting Tender dated 01.08.2025, insofar as the package in
question is concerned, which is assailed in WP(C) No.4799/2025,
cannot be sustained in law.
CONCLUSION:
29. Accordingly, both the writ petitions stand disposed of with the
following observations and directions:
Page No.# 19/20
(i) The issuance of the Letter of Acceptance, coupled with the
submission of the Performance Security by the Petitioner within the
time permitted have led to the formation of a contract between the
Petitioner and the Respondents.
(ii) Upon the formation of the contract between the Petitioner and
the Respondents, the Respondent Authorities cannot nullify the
said contract by cancelling the Letter of Acceptance. The recourse
must be in accordance with the modes permissible under the
Indian Contract Act, 1872, or the terms of the contract entered into
between the Petitioner and the Respondents. In the instant case,
at best, it may be a case for termination of the contract, subject to
there being a fundamental breach of its terms and conditions.
(iii) The impugned communication dated 24.06.2025 issued by the
Chief Engineeer, PWRD is set aside and quashed.
(iv) The impugned Notice Inviting Tender dated 01.08.2025,
insofar as the package in question is concerned, is set aside and
quashed.
(v) This Court clarifies that the setting aside of the Notice Inviting
Tender dated 01.08.2025 is limited only to the package in question
and would not affect any other packages which is not the subject
Page No.# 20/20
matter of the present proceedings.
(vi) It is further observed that the instant judgment would not
come in the way of the Petitioner or the Respondent Authorities to
take any other steps in pursuance to the formation of the contract.
Digitally signed by
Bijoy Saha
Date: 2026.11.06
20:19:47 +05'30'
JUDGE
Bijoy Saha
Comparing Assistant