W.P.(C) No.1134 of 2026 Page 1 of 88

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 2 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

AND

HONOURABLE JUSTICE

MR. MURAHARI SRI RAMAN

Date of Hearing : 05.02.2026 :: Date of Judgment : 31.03.2026

JUDGMENT

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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 alleging

W.P.(C) No.1134 of 2026 Page 10 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 11 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 affected

W.P.(C) No.1134 of 2026 Page 12 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 13 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 14 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 15 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 16 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 17 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 18 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 19 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 20 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 21 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 22 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 : 05.01.2026

The 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 33

3 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 23 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 other

lowest 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 24 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 25 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 26 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 of

W.P.(C) No.1134 of 2026 Page 27 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 before

W.P.(C) No.1134 of 2026 Page 28 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 29 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 Articles

W.P.(C) No.1134 of 2026 Page 30 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 31 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 32 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 33 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) Krishna

W.P.(C) No.1134 of 2026 Page 34 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 35 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 36 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 37 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 38 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 39 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 40 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 41 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-à-

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 42 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 43 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, to

W.P.(C) No.1134 of 2026 Page 44 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 45 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 46 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 Rathour

W.P.(C) No.1134 of 2026 Page 47 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 48 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 49 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 50 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 51 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 52 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 an

W.P.(C) No.1134 of 2026 Page 53 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 54 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 55 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 56 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 57 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 58 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 is

W.P.(C) No.1134 of 2026 Page 59 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 60 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 61 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 62 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 63 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 64 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 tailored

W.P.(C) No.1134 of 2026 Page 65 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 best

W.P.(C) No.1134 of 2026 Page 66 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 67 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 68 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 that

W.P.(C) No.1134 of 2026 Page 69 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 process

W.P.(C) No.1134 of 2026 Page 70 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 71 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 72 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 10

th 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 73 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 74 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 75 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 76 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 77 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 78 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 79 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 80 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 81 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 82 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 83 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. It

W.P.(C) No.1134 of 2026 Page 84 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 85 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 86 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 87 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 88 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

High Court of Orissa, Cuttack

The 31

st March, 2026/Aswini/Bichi/MRS