THE HIGH COURT OF SIKKIM : GANGTOK

(Civil Extraordinary Jurisdiction)

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SINGLE BENCH : THE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE

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WP(C) No.75 of 2025

Petitioner : Hill Brow Metallics & Construction Pvt. Ltd.

versus

Respondents : Ministry of Defence and Others

Application under Article 226 of the Constitution of India

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Appearance

Mr. Tarique Sidique, Mr. Norzang Lepcha and Ms. Nima Phuti Lepcha,

Advocates for the Petitioner.

Ms. Sangita Pradhan, Deputy Solicitor General of India for the

Respondents No.1 to 5.

Mr. Sudesh Joshi, Advocate for the Respondent No.6.

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Date of hearing : 01-12-2025

Order reserved : 01-12-2025

Order pronounced & uploaded : 03-12-2025

ORDER

Meenakshi Madan Rai, J.

1. In the instant Petition, the Petitioner seeks an interim

relief, viz.;

“Stay the impugned letter/Summary of Technical Evaluation

dated 04.10.2025 issued by the respondent no.5 whereby

the technical committee of respondent no.5 has illegally,

unlawfully, arbitrarily and wrongly evaluated bid documents

of respondent no.6 during the technical evaluation and all

consequential actions/proceedings including issuance of

Letter of Acceptance (LoA) to Respondent No.6 who has

been illegally and arbitrarily declared as L-1.”

2. Learned Counsel for the Petitioner submits that the

Respondent No.5 the Chief Engineer, Border Roads Organisation,

invited bids from eligible contractors for the construction and

improvement of Rishi-Rongli-Kupup road in East Sikkim, as

detailed in the Request for Proposal (RFP) [Annexure P-2] to the

Petition. Both the Petitioner and the Respondent No.6 , M/s

Rajinder Infrastructure Private Limited participated in the tender

WP(C) No.75 of 2025

Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 2

process relating to the Tender ID No.2025_BRO_706797_1. The

technical committee of the Respondent No.5, vide the Summary of

Technical Evaluation, dated 04-10-2025, illegally and arbitrarily

declared Respondent No.6, M/s Rajinder Infrastructure Private

Limited, as qualified in the technical bid despite it not meeting the

requirements thereof and permitted it to participate in the next

stage of bidding. The Respondent No.5 then declared that the

financial bids of all technically responsive bidders would be opened

on 11-10-2025, at 1700 hours. Thereafter, without following due

process the financial bids were opened on 22-10-2025 declaring

Respondent No.6 as L-1. It is canvassed by Learned Counsel for

the Petitioner that the technical bid of Respondent No.6 is required

to be set aside as illegal and arbitrary the selection of Respondent

No.6 being in violation of the terms of the technical requirements

of the Request for Proposal (RPF) consideration. That, the

Respondent No.6 in the “Integrity Pact Format” filed along with its

documents had declared that it had no previous transgressions in

the last three years, immediately before signing of the Integrity

Pact, which could justify its exclusion from the tender process

which is contrary to records.

(i) That, Clause 2.1.14 of the RFP specifically lays down

that the bidder shall be deemed to be a non-performing party, if it

attracts any or more of the conditions detailed in the clause, in any

of its ongoing or completed projects. The paragraph below sub -

Clause (xx) of Clause 2.1.14 provides that, the bidder shall give

the list of projects of Expressways, National Highways, works of

Ministry of Road Transport and Highways, or it’s implementing

agencies (NHAI/NHIDCL/State PWDs/BRO) and the status of the

each project and on the bid submission date undertake that they

WP(C) No.75 of 2025

Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 3

do not attract any of the above categories. It is clarified that the

categories indicated in the paragraph (supra) includes the

categories detailed in Clause 2.1.14 (i) to (xx). All bidders were

also to give not only the details of ongoing projects but also details

of updated ongoing process of black listing if any under any

contract with the authority and the Government.

(ii) It was urged by Learned Counsel that the Respondent

No.6 had not disclosed relevant information pertaining to its

debarment by a public undertaking being Greater Mohali Area

Development Authority (GMADA) and Punja b Urban Development

Authority (PUDA) from carrying out contract works or the fact that

a criminal case was registered against Gurinder Pal Singh , who

holds 99.95% shares of the Respondent No.6 Company . The

information pertaining to Charge-sheet filed against Respondent

No.6 Company and Gurinder Pal Singh under Section 420 of the

Indian Penal Code and Prevention of Money Laundering Act, 2002,

was also concealed. Relying on Annexure P-8, P-9 and P-12,

Learned Counsel submitted that Respondent No.5 failed to take

into consideration that Respondent No.6 was entrusted with the

construction of high altitude road to Indo-China Border from Dorjila

Base, which was to commence from 07 -12-2021 and to be

completed by 25-05-2024. This project is still incomplete but

information pertaining to such incompletion was not furnished by

Respondent No.6 to Respondent No.5, who has overlooked this

shortcoming. In another contract pertaining to construction of high

altitude road to Indo-China Border from Kerang, the project was to

commence from 18 -12-2021 and was to be completed on 26-05-

2024. The Petitioner has failed to complete it on the scheduled

date as also construction of ITBP high altitude road to Indo-China

WP(C) No.75 of 2025

Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 4

Border from Leema which was to commence from 10 -11-2022 and

the date of completion is 03-01-2026. In the last contract the

progress of the work is not in terms of the area to be covered and

flies in the face of details required by Annexure P-7.

(iii) That, it is in such circumstances that the interim relief

(supra) is being sought, as Respondent No.5 failed to take steps

despite the Petitioner have issued an e-mail to them firstly on 12-

11-2025 and thereafter on detecting defects and rectifying the

errors, sent a repeat e-mail on 15-11-2025 at 11.29 a.m .,

regardless of which further steps were taken by Respondent No.5

in favour of Respondent No.6.

3. Learned Deputy Solicitor General of India (DSGI) for

the Respondent No.1 to 5 submitted that , there has been no

illegality or arbitrariness in the act of the Respondent No.5 who has

already issued the LoA on 17-11-2025 to the Respondent No.6.

The Learned DSGI denied knowledge of the e -mail dated 15-11-

2025.

4. Learned Counsel for the Respondent No.6 for his part

contended that after following due process and all necessary

considerations by the Respondent No.5 in terms of the R FP,

Respondent No.6 was found to be the lowest bidder and declared

as “L-1”. Consequent thereto , the LoA was issued to the

Respondent No.6 upon which steps are yet to be taken by

Respondent No.6. It was clari fied that although the Petitioner

placed reliance on Annexure P-16, i.e., the proceedings in Punjab

and Haryana High Court in M/s. Rajinder Infrastructure Pvt. Ltd. vs.

State of Punjab and Others

1

the Counsel for the Petitioner failed to

apprise this Court that the Counsel representing the Respondent

1

CWP No.7158 of 2023 (O&M) dated 03-12-2024

WP(C) No.75 of 2025

Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 5

No.6 in the said matter had conceded that both orders debarring

the Respondent No.6 by the GMADA and PUDU respectively were

not defensible and he was therefore under instructions to submit

that the said Orders be deemed to have been withdrawn.

(i) Walking this Court through the provisions of Section

41(ha) of the Specific Relief Act, 1963, it was urged that the

provision clearly lays down conditions when an injunction cannot

be granted by the Court. Strength was also drawn from the

decision of the Supreme Court in N. G. Projects Limited vs. Vinod

Kumar Jain and Others

2

, wherein the Supreme Court has cautioned

that, construction of roads is an infrastructure project, therefore

the intent of the legislature shoul d be kept in view and

infrastructure projects should not be stayed. In the said matter, it

was observed that the High Court would have been well advised to

hold its hand to “stay the construction” of the infrastructure

project. Besides, the decision as to whether the bidder satisfies

the tender condition is primarily upon the authority inviting the

bids. Reliance was also placed on Jagdish Mandal vs. State of Orissa

and Others

3

, wherein the Supreme Court observed that it is the

authority considering the tender who has to take into consideration

various points while determining the validity of the tender. This

was done by Respondent No.5 and pursuant thereto has carried

out the necessary scrutiny and the LoA was issued to the

Respondent No.6. Hence, the interim relief or the prayers sought

by the Petitioner in the Writ Petition are not tenable.

5. I have given due consideration to the rival submissions

advanced by Learned Counsel for the parties, perused the Petition

and all documents relied on by the Petitioner.

2

(2022) 6 SCC 127

3

(2007) 14 SCC 517

WP(C) No.75 of 2025

Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 6

6. It is pertinent to mention at this juncture that upon

perusal of the Petition, on the last date, an enquiry was made by

this Court with regard to the locus standi of the authorised person

of the Petitioner. Learned Counsel for the Respondent No.6

submitted that in State Bank of Travancore vs. Kingston Computers

India Private Limited

4

, the Supreme Court has observed that there

has to be evidence of a resolution passed by the Board of Directors

of the company, authorising such persons to file the representation

against the Respondents. No such documents have been furnished

by the Petitioner. Per contra the Counsel for the Petitioner invited

the attention of this Court to the affidavit filed by the authorised

person “Sonam Choda Tamang ” as also Special Power of Attorney,

wherein the said person has been authorised by the Directors of

the Petitioner Company to take all steps as detailed therein on

behalf of the Petitioner Company. The attention of this Court was

also invited to the certified true copy of the resolution passed at

the meeting of Board of Director s of Hill Brow Metallics &

Construction Pvt. Ltd. held on 03-11-2025, at 11.30 p.m. at Jora

NH-06, Road near Jora the Mall, Opposite Agriculture College Jora,

Raipur (CG) - 492012, wherein the Board resolved that Sonam

Choda Tamang was the constituted attorney of the company.

That, the Special Power of Attorney specified that, the Power of

Attorney given to Sonam Choda Tamang was issued in pursuance

to delegation of power vide resolution, dated 03-11-2025, passed

by the Board of Directors.

7. Having considered and perused the above document s, I

am of the considered view that the locus standi of the authorised

person requires no further discussion.

4

(2011) 11 SCC 524

WP(C) No.75 of 2025

Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 7

8. While considering the competing submissions advanced

by Learned Counsel for the parties, at this stage I find that the

Petitioner has made out a prima facie case to grant an interim

relief for the reason that the RFP lays down certain requisites for a

bidder to qualify and even if the Order of the Punjab and Haryana

High Court (supra) is taken into consideration, which reflects that,

the orders of debarment of the Respondent No.6 vide Orders dated

11-08-2021 and 06-07-2022 were deemed to be withdrawn as not

defensible, it appears that in the instant bid, no disclosure was

made by the Respondent No.6 with regard to details pertaining to

its ongoing contracts and the work progress as required in

Annexures of the RFP. It is also noticed that the Petitioner had

issued an e-mail to all Respondents dated 15-11-2025, at 11.29

a.m. Surprisingly on 17-11-2025, the LoA in a rather unholy hurry

was issued to the Respondent No.6. From the timelines which are

reflected hereinbelow it is evident that prior to the e-mail sent by

the Petitioner to Respondent No.5, the Respondent No.5 was taking

its time with regard to the bid and the LoA, viz., on 05-05-2025

the RFP was issued by the Respondent No.5. On 20 -06-2025 the

technical bids were opened. On 04 -10-2025 the results of

technical bids were declared. On 11-10-2025 the bids were to be

opened. On the said date the bids were not opened and the date

was extended to 22-10-2025. Even after the opening of the bids

on 22-10-2025, no steps were taken by Respondent No.5 but on

17-11-2025 immediately after the e-mails were sent to the

Respondents on 15-11-2025, the LoA was issued.

9. The submission of Learned DSGI that Respondent No.5

was not aware of the e-mails cannot be countenanced. Appositely

the LoA is not a contract, in this circumstance, reliance placed by

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Hill Brow Metallics & Construction Pvt. Ltd. vs. Ministry of Defence and Others 8

Learned Counsel for the Respondent No.6 on N. G. Projects Limited

(supra) stating that the High Court should “stay its hand” in

matters of infrastructure development is not relevant as the

contract work has not even commenced nor has a da te been set for

such commencement. Only the LoA has been issued. It is now

settled law that issuance of L oA does not tantamount to a

concluded contract. The dates for commencement and completion

of the contract have not been specified as that stage is yet to be

reached.

10. Hence, in the fa cts and circumstances detailed

hereinabove and in consideration of the balance of convenience

and inconvenience of the parties, the impugned letter/Summary of

Technical Evaluation, dated 04-10-2025, is stayed along with steps

in the context of the LoA dated 17-11-2025, until further orders of

this Court.

11. It is clarified that the observations made hereinabove

are only for the purposes of interim stay and shall in no manner be

construed as findings on the merits of the Writ Petition.

( Meenakshi Madan Rai )

Judge

03-12-2025

Approved for reporting : Yes

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