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Patna High Court

Kaushal KishoreversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The cancellation order was set aside as arbitrary because the disqualified bidder had waived his right to object, leaving no valid ground for cancellation.

Summary

The petitioner, Kaushal Kishore, was declared the lowest bidder (L-1) for a Rural Road Strengthening tender, but the Tender Committee cancelled the tender on the ground that a disqualified bidder, Praveen Kumar, had not been given adequate opportunity to submit required documents. Praveen Kumar later sent a letter admitting his failure to submit the payment certificate and Form 26AS and expressly waived any right to object or provide the documents. The court held that this waiver extinguished any grievance, making the Committee’s reliance on alleged denial of opportunity both factually incorrect and legally untenable. It further observed that the cancellation was arbitrary, violated the principles of fairness and Article 14, and ignored the material fact of the bidder’s waiver. Citing precedents on waiver and arbitrariness, the court set aside the cancellation order. Consequently, the writ petition was allowed, directing the respondents to proceed with awarding the contract to the petitioner.

Issues considered

  • Whether the tender cancellation was justified despite the disqualified bidder's waiver of his right to object.
  • Whether the cancellation violated Article 14 of the Constitution by being arbitrary and unreasonable.
  • Whether the authority could cancel the tender under Clause 33 of the NIT without assigning a reason.

Subjects

  • tender cancellation
  • waiver
  • arbitrariness
  • Article 14
  • public procurement
  • e‑tender
  • contractual discretion
  • fairness
  • transparency

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No.16089 of 2025
                 ======================================================
                 Kaushal Kishore S/o Sahja Sharma, R/o Village-Bishunpura, P.O.-Manikpur,
                 P.S. Kurtha, District-Arwal.

                                                                                ... ... Petitioner/s
                                                       Versus

           1.    The State of Bihar through the Additional Chief Secretary, Rural Work
                 Department, Government of Bihar, Patna.
           2.    The Additional Chief Secretary, Rural Work Department, Government of
                 Bihar, Patna.
           3.    The Engineer in Chief cum Additional Commissioner cum Special Secretary,
                 Rural Work Department, Government of Bihar, Patna.
           4.    Nodal Officer MMGSUY, Rural Works Department, Govt. of Bihar, Patna.
           5.    The Chief Engineer Rural Works Department, Bihar, Patna.
           6.    The Chief Engineer (2), Rural Works Division, Gaya.
           7.    Superintending Engineer, Rural Works Department, Aurangabad.
           8.    The Executive Engineer, Rural Works Department, Arwal.

                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s    :         Mr. Ramakant Sharma, Sr. Advocate
                                                   Mr. Rajesh Kumar, Advocate
                                                   Mr. Priyansh Ranjan, Advocate
                 For the Respondent/s    :         Mr. Sanjay Prasad, AC to AAG-4
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
                         and
                         HONOURABLE MR. JUSTICE SHAILENDRA SINGH
                                       ORAL ORDER

                 (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

3   25-03-2026                    Heard the parties.

                                 2. Following is the relief sought for in the present writ

                   application:-

                                                        “I. For quashing the letter dated
                                             15.09.2025 issued by the Tender Committee
                                             constituted under the Chairmanship of Respondent
                                             No.-3, communicated vide E-letter dated 16.09.2025
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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                                  by the Respondent No.-5, as contained in Annexure-
                                  P:7 by which the Petitioner who was duly selected
                                  in financial bid being L-1 against NIT No-
                                  RRSMP/10/25-25,         Package    No-       RRSMP/25-26
                                  (Tender ID 143239) has been cancelled and order
                                  for re-tender has been made.
                                              II. For commanding the Respondents to
                                  continue the contract and issue work order in favour
                                  of the Petitioner as he has been duly selected being
                                  L-1 for the execution of the said contract work.
                                              III.   For      issuance    of    such   other
                                  appropriate order or direction which may deem fit
                                  and proper in the facts and circumstances of the
                                  present case.”


                      3. The brief facts of the present case are that an e-

          tender bearing No. RRSMP-10/2025-26 was invited under the

          signature         of       the       Engineer-in-Chief-cum-Additional

          Commissioner-cum-Special                Secretary     on       03.07.2025     for

          execution of works under the Rural Road Strengthening and

          Management Program (RRSMP), which was uploaded on the

          departmental portal on 05.07.2025. The last date for submission

          of bids was initially fixed as 01.08.2025 and was subsequently

          extended to 08.08.2025. The petitioner, being eligible,

          participated in the tender process for Package No. RRSMP/25-

          26 (Tender ID 143239), Arwal-2. During the technical

          evaluation, one of the bidders, namely Praveen Kumar (ID No.

          624777), was declared              disqualified on account of non-
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          submission of payment certificate and Form 26AS as required

          for verification of Annual Turnover under the bid conditions.

          Opportunity was granted to the bidders to raise objections;

          however the said bidder did not avail the same. Thereafter, the

          financial bid was opened and the petitioner was declared L-1

          (lowest bidder). The case of the petitioner was also

          recommended for issuance of work order by the Executive

          Engineer. Subsequently, the Tender Committee, vide decision

          dated 15.09.2025 (communicated on 16.09.2025), cancelled the

          tender process and directed re- tendering on the ground that the

          disqualified bidder was not afforded adequate opportunity.

                      4. The order under challenge is the Letter dated

          15.09.2025 (Annexure- P/7) issued by the Tender Committee,

          which is reproduced hereinbelow:-

                                            “fcgkj ljdkj
                                         xzkeh.k dk;Z foHkkx
          fnukad%& 15@09@2025 dks lEiUu foHkkxh; fufonk lfefr dh cSBd
          dh dk;Zokgh
          mifLFkfr%&
                  (i) Jh nhid dqekj flag] vij eq[; lfpo] xzkeh.k dk;Z foHkkxA
                  (ii) bZ0 t; fd”kksj Bkdqj] vfHk;ark izeq[k] xzkeh.k dk;Z foHkkxA
                  (iii) bZ0 pUnz”ks[kj vktkn] eq[; vfHk;ark&3 ¼Hkkxyiqj½A
                  (iv) bZ0 vfuy dqekj] eq[; vfHk;ark&2 ¼x;k½A
                  (v) Jh vkehj uS;~;j] vkarfjd foRrh; lykgdkj] xzkeh.k dk;Z foHkkxA
                   2- cSBd esa 4515 (MMGSUY) ;kstuk ds vo;o ds :i esa xzkeh.k
          lM+d lqn`<h+ dj.k ,oa izca/ku dk;Zdze vUrxZr E-Tendering ds ek/;e ls izkIr
          dh x;h 02 fufonkvksa (Tender Id-141673 ,oa 142021) dk rduhdh chM ij
          vfHk;ark izeq[k dh v/;{krk esa xfBr rduhdh chM lfefr }kjk rduhdh chM
          dk fu’iknu fd;k x;k gS mDr nksuksa fufonkvksa dk foRrh; chM [kqyus ds
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          mijkar mDr fufonk ds L1 fufonkdkj dk ATO ds tkWap ds dze esa Payment
          Certificate xyr ik;k x;k gS ,oa 01 fufonk (Tender Id-143239) esa
          fufonkdkj Praveen Kumar }kjk Bid esa ATO ds lk{; ds :i esa tek fd,
          tkus okys 26AS/ Payment Certificate Online tek ugha jgus ds dkj.k
          v;ksX; ?kksf’kr fd;k x;k gS ,oa foRrh; chM dk;Zikyd vfHk;ark }kjk [kksyus
          tkus ds vuq”kalk ds vkyksd esa [kksy fn;k x;k gS tcfd fufonkdkj Praveen
          Kumar }kjk ATO ds lk{; ds :i esa 26AS/ Payment Certificate dh ekax
          dh tkuh pkfg, Fkh pqfd CMBD dh dafMdk 24-2 esa Substantially Responsive
          ATO dh ekax dh x;h gSA CMBD esa ATO ds tkap gsrq 26AS/ Payment
          Certificate dh ekax dh tkuh gSA
                          mDr rhuksa fufonkvksa ds lac/ak esa foHkkxh; fufonk lfefr }kjk
          fuEuor~ fu.kZ; fy;k tkrk gSA




                      5. Learned counsel for the petitioner submits that the

          impugned action is arbitrary, unreasonable, and violative of

          Article 14 of the Constitution of India. It is further submitted

          that a concluded stage of tender evaluation cannot be nullified

          on untenable and extraneous considerations.

                      6. Learned counsel further submits that even the basis

          of the impugned action is factually unsustainable. It is pointed

          out that the petitioner has brought on record, by way of

          supplementary affidavit, a letter dated 12.09.2025 (Annexure-

          P/8 to the supplementary affidavit) issued by the concerned
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          bidder, namely Praveen Kumar, addressed to the competent

          authority, wherein he has categorically stated that he had

          mistakenly not submitted the requisite certificates and that he

          has neither filed any objection nor intends to do so in future.

          The said matter is reproduced as under:-

                                  “                                 DATE:-12/9/2025
                                  lsok esa]
                                           vij lpho egksn;
                                           xzkeh.k dk;Z foHkkx] iVuk

                                  fo’k;%& dk;Z ize.My vjoy R.R.S.M.P VsaMj bZMh
                                  0143239 esa rduhdh fufonk ds laca/k esaA

                                  egk”k;]
                                            mi;ZqDr fo’k; ds lanHkZ esa dguk gS fd eSa bl
                                  fufonk esa Hkkx fy;k Fkk eq>s bl fufonk esa A.T.O.
                                  lacaf/kr Payment Certificate ,oa 26AS @”kiFk i=
                                  esa rduhdh fufonk esa vlQy fd;k x;k gSA bl
                                  fufonk esa esjs }kjk Payment Certificate ,oa 26AS/
                                  “kiFk i= Hkqyo”k ugha yx Ikk;k Fkk blesa esjs }kjk
                                  ifjokn@vkifRr Hkh ugha fn;k x;k gS vkSj Hkfo’; esa
                                  ugha fn;k tk,xkA
                                            vr% Jheku ls vuqjks/k gS fd esjs }kjk fn, x;s
                                  vkosnu ij mphr fu.kZ; ysus fd d`I;k fd, tk,A
                                  izfrfyfi%&
                                     1- vfHk;ark izeq[k egksn;
                                     2- uksMy R.R.S.M.P xzkeh.k dk;Z foHkkx
                                     3- dk;Zikyd vfHk;ark xzkeh.k dk;Z foHkkx] vjoyA
                                                                           fo”oklHkktu
                                                                           izoh.k dqekj”

                      7. It is further submitted that the said letter was

          forwarded by the Executive Engineer vide Memo No. 1490

          dated 13.09.2025 (Annexure- P/9 to the supplementary
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          affidavit) to the higher authority, thereby leaving no ambiguity

          regarding the position of the said bidder. The said document is

          reproduced as under:-

                                  “i=kad 1490 @                  vjoy] fnukad 13-09-2025
                                  izs’kd]
                                           dk;Zikyd vfHk;ark]
                                           xzkeh.k dk;Z foHkkx]
                                           dk;Z ize.My] vjoyA
                                  lsok esa]
                                           vfHk;ark izeq[k]
                                           xzkeh.k dk;Z foHkkx]
                                           fcgkj] iVukA
                                  fo’k;%& VsUMj vkbZ0Mh0&143239 esa laosnd izoh.k dqekj
                                  }kjk fn;s x;s i= ds laca/k esaA
                                  egk”k;]
                                              mi;qZDr fo’k; ds laca/k esa dguk gS fd VsUMj
                                  vkbZ0Mh0&143239 esa laosnd izoh.k dqekj us Hkkx fy;k
                                  Fkk mUgsa bl fufonk esa layXu ATO ds lkFk flfoy
                                  dk;Z ds lk{; ds :i esa Payment Certificate ,oa
                                  26AS ugha layXu djus ds dkj.k mUgsa bl fufonk esa
                                  vlQy fd;k x;k FkkA
                                               laosnd izoh.k dqekj }kjk vius i= ds ek/;e
                                  ls ;g lwfpr fd;k x;k gS fd os Hkwyo”k Payment
                                  Certificate ,oa 26AS / “kiFk i= ugha yxk ik;s Fks
                                  vkSj bUkds }kjk dksbZ ifjokn@vkifRr ugha fn;k x;k gS
                                  vkSj Hkfo’; esa ugha fn;k tk;sxkA ¼izoh.k dqekj }kjk fn;s
                                  x, i= dh Nk;k izfr layXu½A
                                  vuq0&;FkksDrA
                                                                           fo”oklHkktu
                                                                               g0@&
                                                                       dk;Zikyd vfHk;ark
                                                                       xzkeh.k dk;Z foHkkx]
                                                                     dk;Z ize.My] vjoyA”

                      8. In view thereof, learned counsel submits that the

          very foundation of the impugned decision stands vitiated as the

          concerned bidder himself has accepted that he had mistakenly
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          not submitted the requisite documents and waived any right to

          object. It is, thus, submitted that the impugned order is

          unsustainable in law and is liable to be set aside.

                       9. Per contra, learned counsel for the respondents

          submits that the impugned decision has been taken after due

          scrutiny by the Departmental Tender Committee in order to

          ensure fairness and transparency in the tender process. It is

          submitted that as per Clause 4.4A(a) of the CMBD, submission

          of documents for verification of Annual Turnover (ATO),

          including payment certificate/26AS, is mandatory. Although,

          Clause       24.2    of    the     CMBD         pertains   to   substantial

          responsiveness, the requirement under Clause 4.4A(a) being

          essential could not be dispensed with. It is further submitted that

          since the financial bids had already been opened, the

          confidentiality of rates stood compromised, and therefore, it was

          not feasible to seek any further clarification from bidders. In

          such circumstances, the decision to cancel the tender was

          justified.

                       10. Learned counsel further submits that as per Clause

          33 of the NIT, the competent authority reserves the right to

          cancel the bidding process at any stage prior to award of

          contract without assigning any reason. It is further submitted
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          that the impugned decision is strictly in accordance with the

          aforesaid clauses and does not warrant interference.

                      11. The limited issue for consideration before this

          Court is whether the respondent authorities were justified in

          cancelling the tender process on the ground of alleged denial of

          opportunity to a bidder, when such bidder had, prior to the

          impugned decision itself, waived his right to submit the

          requisite documents or raise any objection.

                      12. Having heard learned counsel for the parties and

          upon consideration of the materials available on record, it

          transpires that the sole foundation of the impugned decision

          dated 15.09.2025 is that one bidder, namely Praveen Kumar,

          was disqualified for non-compliance of Clause 24.2 of the

          CMBD and non-submission of 26AS/Payment Certificate as

          required under Clause 4.4A, and that he was allegedly not

          afforded      adequate       opportunity        to   respond   to   such

          disqualification.

                      13. However, the materials on record unequivocally

          demonstrate that prior to the impugned decision itself, the said

          bidder had waived his right to submit the requisite documents or

          to raise any objection. The letters dated 12.09.2025 and

          13.09.2025 (Annexure- P/8 & P/9), clearly establish that the
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          said bidder consciously accepted his disqualification and

          categorically stated that he neither intends to file any objection

          nor to pursue the matter further.

                      14. In such circumstances, the very foundation of the

          impugned decision becomes unsustainable and collapses. The

          doctrine of waiver, which is a well-recognized principle in law,

          postulates that where a person, with full knowledge of his rights,

          voluntarily abandons or relinquishes the same, he cannot

          subsequently be heard to complain. The Hon’ble Supreme Court

          in Krishna Bahadur v. Purna Theatre, reported in (2004) 8

          SCC 229 has held that a right can be waived by the party for

          whose benefit it exists, even by conduct. The relevant part of the

          said judgment reads as follows:

                                              “10. A right can be waived by the party
                                  for whose benefit certain requirements or conditions
                                  had been provided for by a statute subject to the
                                  condition that no public interest is involved therein.
                                  Whenever waiver is pleaded it is for the party
                                  pleading the same to show that an agreement
                                  waiving the right in consideration of some
                                  compromise came into being. Statutory right,
                                  however, may also be waived by his conduct.”


                      15. Applying the aforesaid principle to the present

          case, once the concerned bidder had, before the decision dated

          15.09.2025, consciously and waived his right to object or to
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          furnish documents, there remained no subsisting right or

          grievance which required protection or consideration by the

          respondent authorities. In such a situation, for the authorities to

          subsequently rely upon an alleged denial of opportunity to that

          very bidder as a ground for cancelling the entire tender process

          is not only contradictory but also manifestly arbitrary.

                      16. This Court is unable to comprehend as to how a

          ground, which had already ceased to exist by virtue of

          Annexure-P/8        could      have     been    resurrected   to   justify

          cancellation of the tender. Such an approach clearly reflects

          non-application of mind and consideration of an irrelevant

          factor, while ignoring material facts available on record.

                      17. Further, it is well settled that while the State and

          its instrumentalities possess discretion in contractual matters,

          such discretion is not absolute and must conform to the mandate

          of fairness, transparency, and non-arbitrariness under Article 14

          of the Constitution. In Tata Cellular v. Union of India,

          reported in (1994) 6 SCC 651, the Hon’ble Supreme Court

          observed that judicial review is concerned with the decision-

          making process, and interference is warranted where the

          decision is arbitrary or based on irrelevant considerations. The

          relevant part of the said judgment reads as follows:-

                                              “94. The principles deducible from the
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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                                  above are:
                                                (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.
                                  Normally speaking, the decision to accept the tender
                                  or award the contract is reached by process of
                                  negotiations through several tiers. More often than
                                  not, such decisions are made qualitatively by
                                  experts.
                                                (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 an administrative sphere or
                                  quasi-administrative 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.”


                      18. Likewise, in Jagdish Mandal v. State of Orissa,
Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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          reported in (2007) 14 SCC 517, it has been held that if a

          decision is so arbitrary that no reasonable authority could have

          arrived at it, the Court would be justified in interfering.

                                                “22. Judicial review of administrative
                                  action   is    intended        to   prevent     arbitrariness,
                                  irrationality, unreasonableness, bias and mala fides.
                                  Its purpose is to check whether choice or decision is
                                  made “lawfully” and not to check whether choice or
                                  decision is “sound”. When the power of judicial
                                  review is invoked in matters relating to tenders or
                                  award of contracts, certain special features should
                                  be borne in mind. A contract is a commercial
                                  transaction. Evaluating tenders and awarding
                                  contracts are essentially commercial functions.
                                  Principles of equity and natural justice stay at a
                                  distance. If the decision relating to award of
                                  contract is bona fide and is in public interest, courts
                                  will not, in exercise of power of judicial review,
                                  interfere even if a procedural aberration or error in
                                  assessment or prejudice to a tenderer, is made out.
                                  The power of judicial review will not be permitted to
                                  be invoked to protect private interest at the cost of
                                  public interest, or to decide contractual disputes.
                                  The tenderer or contractor with a grievance can
                                  always seek damages in a civil court. Attempts by
                                  unsuccessful tenderers with imaginary grievances,
                                  wounded pride and business rivalry, to make
                                  mountains        out      of        molehills     of    some
                                  technical/procedural violation or some prejudice to
                                  self, and persuade courts to interfere by exercising
                                  power of judicial review, should be resisted. Such
                                  interferences, either interim or final, may hold up
                                  public works for years, or delay relief and succour
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                                  to thousands and millions and may increase the
                                  project cost manifold. Therefore, a court before
                                  interfering in tender or contractual matters in
                                  exercise of power of judicial review, should pose to
                                  itself the following questions:
                                                 (i) Whether the process adopted or
                                  decision made by the authority is mala fide or
                                  intended to favour someone;
                                                 OR
                                                 Whether the process adopted or decision
                                  made is so arbitrary and irrational that the court
                                  can say: “the decision is such that no responsible
                                  authority acting reasonably and in accordance with
                                  relevant law could have reached”;
                                                 (ii) Whether public interest is affected.
                                                 If the answers are in the negative, there
                                  should be no interference under Article 226. Cases
                                  involving blacklisting or imposition of penal
                                  consequences          on   a   tenderer/contractor         or
                                  distribution     of    State   largesse   (allotment       of
                                  sites/shops, grant of licences, dealerships and
                                  franchises) stand on a different footing as they may
                                  require a higher degree of fairness in action.”


                      19. In the present case, the cancellation of the tender

          is based on a ground which is demonstrably factually incorrect

          and legally untenable, inasmuch as the bidder concerned had

          already waived his right. The decision, therefore, suffers from

          arbitrariness, non-consideration of relevant material, and

          reliance on a non-existent ground.

                      20. This Court also finds that once the tender process
           Patna High Court CWJC No.16089 of 2025(3) dt.25-03-2026
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                     had progressed to the stage where the petitioner was declared L-

                     1, the respondents were expected to act in a fair and reasonable

                     manner, and any decision to annul such process ought to be

                     supported by cogent and valid reasons. The reason assigned in

                     the present case falls short of such standard.

                                 21. Accordingly, this Court is of the considered

                     opinion that the impugned decision dated 15.09.2025 cancelling

                     the tender process suffers from serious infirmity and cannot be

                     sustained in law.

                                 22. Consequently, the order dated 15.09.2025 is set

                     aside and the writ application is, accordingly, allowed.

                                 23. Pending application(s), if any, shall also stand

                     disposed of.



                                                 (Sudhir Singh, J)


                                               (Shailendra Singh, J)
Sachin/A.F.R.-

U


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