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GAHC030001952026

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : PIL/1/2026

1.Shri Vanlalruata Sailo

S/o Thangthuama

R/o LK/C 36, Leitan K Section,

Tlangnuam (Part), Aizawl, Durtlang,

Mizoram-796025

………Petitioner

-Versus-

1. THE STATE OF MIZORAM, through

The Chief Secretary, Government of

Mizoram, New Secretariat Complex,

Khatla, Aizawl, Mizoram-796001

2. THE PRINCIPAL SECRETARY,

Finance Department, Government of

Mizoram, New Secretariat Complex,

Khatla, Aizawl, Mizoram-796001.

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3. THE SECRETARY, Law & Judicial

Department, Government of

Mizoram, New Secretariat Complex,

Khatla, Aizawl, Mizoram-796001

……..Respondents

BEFORE

HON’BLE MR. JUSTICE NELSON SAILO

HON’BLE MR. JUSTICE KAUSHIK GOSWAMI

Advocates for the petitioner: Mr. Kartik Jain, Adv

Advocate for the respondents: Mr. Biswajit Deb, A.G,

Mrs. Linda L. Fambawl, Addl. A.G.

Date on which judgment is reserved : 02.09.2026

Date of pronouncement of judgment : 09.09.2026

Whether the pronouncement is of the

Operative part of the judgment? : No

Whether the full judgment has been

Pronounced? : Yes

JUDGEMENT AND ORDER (CAV)

(Nelson Sailo, J)

Heard Mr. Kartik Jain, learned counsel for the petitioner and

Mr. Biswajit Deb, learned Advocate General assisted by Mrs. Linda

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L. Fambawl, learned Addl. Advocate General appearing for the

State.

[2.] Brief facts of the case has already been highlighted in our

Order dated 20.05.2026 and the same is being abstracted

hereunder for brevity:

“Heard Mr. Kartik Jain, learned counsel for the petitioner as well as Mr.

Biswajit Deb, learned Advocate General, Mizoram, assisted by Mrs. Linda L.

Fambawl, learned Addl. A.G., Mizoram.

[2.] The learned counsel for the petitioner submits that a public

spirited person has filed the instant PIL to espouse the arbitrariness and

illegality committed by the State respondents in coming up with the

Notification dated 15.07.2024 fixing the permissible lower limit of tender at

5% below the estimated cost and the higher ceiling at 10% above the

estimated cost. Further vide Office Memorandum dated 26.09.2025 the State

Government in the Finance Department has also prescribed two (2) Standard

Biding Documents (SBD) for procurement of building & other related works;

and for road works. He submits that as per both the SBDs certain provision

and provisos of Clause-4 of the General Rules and Directions of the

Government of India, Central Public Works Department amongst others has

been omitted/excluded. The competent authority is therefore given an

unbridled power to choose the bidder of his choice. The learned counsel

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submits that the State respondents have themselves flouted the provisions of

the Mizoram Public Procurement Rules, 2020 published in the Mizoram

Gazette dated 12.02.2020, the Mizoram Transparency and Public Procurement

Act, 2008 published in the Mizoram Gazette dated 28.04.2008 and the

Government of Mizoram Notification No. PWE-7/72/71 dated 01.05.1976.

[3.] The learned counsel submits that in view of the impugned

Notification as well as the Standard Bidding Document issued by the State

respondents, there is no scope of having a fair play, there is no transparency

and also no reasonable procedure for selecting a successful bidder, since it is

already known to everyone that the lowest tenderer would be the one who

has quoted 5% below the estimated cost. Under the impugned Notification

and the Standard Bidding Document, the Competent Authority will be able to

pick and choose the tenderer of his choice. Therefore, the Court’s

interference to the impugned notification and the SBDs is necessary to ensure

fairness in the selection of tenderers.

[4.] Per contra, Mr. Biswajit Deb, learned Advocate General, Mizoram,

submits that the instant petition is not a Public Interest Litigation but a

private interest litigation. He submits that the impugned Notification has been

issued in the year 2024, whereas, the instant PIL is initiated only two (2)

years thereafter and purportedly in furtherance of the representation

submitted by an interested person. He submits that the Notification dated

15.07.2024 is the outcome of a policy decision of the State Government and a

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result of due consideration of pros and cons of such fixation. He submits that

unless a limit is fixed, public interest will suffer in view of the fact that

quotations will be made at a fairly low rate and thereby resulting in sub-

standard works, revision of estimates and also escalation of costs. Therefore,

taking into account all such issues, the Notification was issued.

[5.] The learned Advocate General, Mizoram, submits that in matters

relating to tender and contract, the role of the Court is to see whether the

State has acted validly and for a discernable reason and not whimsically for

ulterior purpose. Insofar as the fixation of value of tenders is concerned, it is

entirely within the purview of the executive and Courts have little or no role.

In support of his submission, he has relied upon the case of Michigan Rubber

(India) Limited Vs. State of Karnataka and Ors., (2012) 8 SCC 216 and

Judgment dated 17.09.2021 of the Apex Court in Civil Appeal No. 4862-4863

of 2021(UFLEX Limited Vs. Government of Tamil Nadu & Ors.).

[6.] We have considered the rival submissions. From a perusal of the

Notification dated 15.07.2024 impugned by the petitioner, we have noticed

that the permissible lower limit while considering tenders is fixed at 5%

below the estimated cost put to tender and the permissible upper ceiling is

fixed at 10% of the estimated cost put to tender. While such is the fixation,

the Clause-4 of the Government of India, Central Public Works Department is

being applied by the State through the SBD for procurement of building and

other related works as well as for road works. However, the original

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prescription of the Government of India, CPWD under Clause-4 providing the

procedure in case of more than two or more contractors having quoted the

lowest rate has been omitted. All that is provided is that in the case of two or

more lowest bidders, the successful bidder amongst such bidders will be

decided by the competent authority. This in our prima-facie view appears to

restrict competition in as much as the authority concerned has empowered

itself to pick and choose the successful bidder from amongst two or more

lowest bidder. The lowest bidder is already defined in terms of the impugned

Notification dated 15.07.2024, whereby, the permissible lower limit is fixed at

5% below the estimated cost put to tender. There can be no argument with

the principles enunciated by the Apex Court in the authorities relied upon by

the learned Advocate General. The State and its instrumentalities indeed has

a free hand to pick the best tenderer from amongst the valid tenders, but by

the impugned Notification and the SBDs it prima-facie appears that there is

no scope for having a competition amongst the tenderers and there is lack of

transparency and lack of reasonable procedure for selecting successful bidder.

Accordingly, in the interim, we are of the view that the impugned Notification

dated 15.07.2024 as well as the SBDs for procurement of building and other

related works as well as the road works should be stayed. It is ordered

accordingly.

[7.] List the matter again after three (3) weeks.

[8.] In the meantime, the respondents to file their counter-affidavit.”

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[3.] In response to the PIL, the State respondents have filed an

affidavit-in-opposition on 16.06.2026 contending inter-alia with the

impugned Notification dated 15.07.2024 in fact was issued in the

larger interest of the public with the primary objective of

safeguarding the quality of public works and ensuring prudent

utilization of public funds. They have also highlighted instances,

where similar variations below and above the estimated cost put

to tender have been issued which therefore would show that

fixation of the lower limit of bidding is necessary. Further,

reference has been made to the CPWD Manual which provides for

the power to accept the lowest tender after call of tender with or

without negotiation for both original and maintenance work.

According to the respondents, the Competent Authority with

financial powers for Rs.1 crore, 10 crore, 30 crore and 50 crore are

the Executive Engineer, Superintending Engineer, Chief Engineer

and the Addl. Director General/Engineer-in-Chief respectively.

Further, in case of tied bids as per the CPWD Manual, the

Competent Authority makes the final selection in the interest of

the Government based on factors such as past performance,

ongoing works, work done, quality and quantity of works executed

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and compliance integrity pact. The respondents thus contend that

fixation of 5% lower price ceiling is intended to prevent

abnormally low bids which often result in poor quality execution,

substandard materials and premature deterioration of public

assets. Such practices therefore could cause greater financial loss

to the exchequer. The cap ensures that contractors quote realistic

prices that reflect genuine costs of quality construction and

maintenance.

[4.] The respondents further contend that in pursuance to the

interim order dated 20.05.2026, it has been notified vide Office

Memorandum dated 26.05.2026 that the Notification dated

15.07.2024 shall remain inoperative w.e.f 20.05.2026 until further

orders. That in the meantime, all procurement/works shall be

governed by the provisions of Mizoram Transparency in Public

Procurement Act, 2008, The Mizoram Public Procurement Rules,

2020 and the applicable provisions of Clause-IV of the CPWD

Manual until further instructions are issued by the Government.

[5.] The State respondents thereafter filed an additional affidavit

on 03.07.2026, justifying the impugned Notification dated

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15.07.2024 with regard to capping of the lower ceiling by referring

to a number of decisions rendered by the Apex Court on the

subject matter.

[6.] When the matter was listed on 13.08.2026, the Court

recorded that from the submissions of the learned counsel for the

petitioner only one point has been stressed i.e., in the event there

is more than one lowest bidder, there is no fixed criteria on the

basis of which the successful bidder would be selected. The

submission of the learned Advocate General was also recorded

that in view of the interim order dated 20.05.2026 passed by this

Court, an Office Memorandum dated 26.05.2026 was issued by the

Government providing that in view of the said order the provisions

of Clause-IV of the CPWD Manual would be followed until further

instructions are issued. The Court therefore was of the considered

view that keeping the issue of maintainability of the PIL open, if

the State Government come up with a selection criteria as was

indicated in the said order, the grievance of the petitioner would

be fully addressed and nothing more would remain in the PIL.

[7.] Thereafter, the State respondents have filed an additional

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affidavit on 24.08.2026, incorporating a Notification dated

19.08.2026, issued by the Finance Department (Expenditure

Control Branch) on the subject “Procedure for section amongst

multiple responsive lowest bidders (L-1) and determination of

competent authority in procurement/works-regarding.” The said

Notification provides that this Court vide order dated 13.08.2026

by modifying interim order dated 20.05.2026 had granted liberty

to the State to formulate an appropriate criteria for selection

amongst multiple L-1 bidders and to specify the Competent

Authority in relation to the contract value. Accordingly, guidelines

for selection of bidder/contractor in case of tied bids was framed

which includes record of past performance in contract works,

record of experience in similar works, litigation, current or during

the last 5 years in which a bidder is involved, record of poor

performance, record of financial failure, availability of essential

construction equipments and man power and bid capacity.

[8.] Further, there is also a clause preventing the near relatives of

the Divisional Accountant or Engineering Officers between the

grades of Superintending Engineer and Junior Engineer from

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participating in the tender process. Also the Competent Authority

for the purpose of the guidelines would be a committee under the

chairmanship of the next higher authority to the authority

competent to accept the bid/tender as per delegation of financial

powers in Standard Operating Procedures for CPWD Works Manual

in force. A chart/table in this regard was also prepared.

[9.] In response to the above affidavit-in-opposition and two

additional affidavits filed by the State, the petitioner has not filed

any response. Mr. Kartik Jain, learned counsel for the petitioner

submits that fixation of lower ceiling at 5% is a restriction which is

unreasonable since there may be prospective tenderers who would

like to submit their bid more than 5% below the estimated cost

put to tender. He submits that there are instances where variations

have gone up to 30% below the estimated cost put to tender.

Therefore, by putting a restriction only up to 5% below the

estimated cost, the same amounts to wastage of funds from the

public exchequer. As the same is not in public interest, the

Notification dated 15.07.2024 should be set aside.

[10.] The learned counsel submits that insofar as the

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Notification dated 19.08.2026, issued by the Finance Department

is concerned, the same appears to be only a procedure to be

adopted during the technical bid. He submits that in a tender

process there are ordinarily two bidding process i.e., technical bid

and financial bid. He submits that the Notification dated

19.08.2026 covers only the technical bid and therefore, the claim

of the respondents that the said procedure provided in the

Notification dated 19.08.2026 is for a situation in case of more

than one lowest bid is only misleading and cannot be accepted.

[11.] The learned counsel as regards the maintainability of the

PIL submits that the guidelines itself provide that petitions

concerning matters of public importance can be entertained as a

PIL. Therefore, the issue raised in the instant PIL being a matter

of public importance, the PIL is only maintainable.

[12.] Per-contra, Mr. Biswajit Deb, learned Advocate General

submits that as per the guidelines issued by the Supreme Court of

India based on a full Court decision dated 01.12.1988 and the

subsequent modifications, cases falling under the assigned

category of the compilation alone can be entertained as the PIL

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and that complaint against the Central/State Government

Department and local bodies except those mentioned in Sl. No.1 to

10 of the compilation will not be entertained as PIL. Considering

the same, the learned Advocate General submits that the instant

PIL is not maintainable. In order to support his submission, the

learned Advocate General amongst others has relied upon the

Apex Court decision in Michigan Rubber (India) Limited v.

State of Karnataka and Ors, (2012) 8 SCC 216 and

Judgment dated 17.09.2021 of the Apex Court passed in Civil

Appeal Nos.4862 - 4863 of 2021 (Uflex Limited v. Government

of Tamil Nadu and Ors.).

[13.] The learned Advocate General further submits that by

order of this Court dated 13.08.2026, the issue in the instant PIL

has also been scaled down to only one point i.e., what would be

the criteria for selecting a successful bidder in the event there is

more than one lowest bidder. Apart from this, the issue of

maintainability has been left open to be considered. He submits

that the learned counsel for the petitioner on the other hand has

withheld this fact from this Court by enlarging the scope of

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consideration beyond what was recorded on 13.08.2026 by this

Court. The learned Advocate General submits that this fact has

also been taken into account subsequently by this Court on

25.08.2026. This Court by taking into account the Notification

dated 19.08.2026 brought on record by way of the additional

affidavit dated 24.08.2026 was of the view that the grievance of

the petitioner only appeared to have been redressed. That it was

only on the insistence of the learned counsel appearing on behalf

of the conducting counsel that the matter was adjourned. He thus

submits that the PIL should be dismissed on the ground of non-

maintainability and in view of the Notification dated 19.08.2026,

issued by the State Government in the Finance Department.

[14.] We have considered the submissions made by the

learned counsel appearing for the rival parties. This Court on

20.05.2026 after having a prima-facie view that there appears to

be lack of transparency and lack of reasonable procedure for

selecting successful bid, stayed the impugned Notification dated

15.07.2024 as well as the standard bidding documents for

procurement of building and other related works. Following the

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same, the Office Memorandum dated 26.05.2026 was issued.

[15.] Thereafter, when the matter was listed on 13.08.2026, as

already stated in the preceding paragraph, the Court recorded that

from the submission made by the counsel for the petitioner, only

one point is now stressed which is regarding unavailability of a

fixed criteria for selection of a successful bidder in the event there

is more than one lowest bidder. Accordingly, it was observed that if

the State Government comes up with a selection criterion to be

adopted in such a situation, the grievance of the petitioner would

be met and nothing would remain in the PIL. Apart from this

observation, the issue of maintainability of the PIL was kept open.

It was also importantly observed that the earlier interim order

dated 20.05.2026 was accordingly modified to enable the State to

proceed with the tender process but however, for the time being,

the State Engineering Departments should follow the Office

Memorandum dated 26.05.2026, till the policy of selection of a

successful bidder in the event there is more than one lowest

bidder as was suggested by the Advocate General is notified.

Therefore, the order dated 13.08.2026 and the subsequent order

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dated 25.08.2026 has only scaled down the issue for consideration

to (i) the maintainability of the PIL and (ii) the criteria to be

followed in case of more than one lowest bidder in order to select

a successful tender.

[16.] Pursuant to the order dated 13.08.2026, the State

Government in the Finance Department (Expenditure Control

Branch) have come up with the Notification dated 19.08.2026

providing for the procedure for selection in the event of multiple

responsive lowest bidders (L-1). The guidelines for making the

selection of the Competent Authority to select bidder in case of

tied bids has also been provided by the said Notification. The same

is already been mentioned in the preceding paragraphs, and

therefore not being repeated for brevity. The said criteria was not

provided in the standard bidding documents for procurement of

building and other related works issued through the Office

Memorandum dated 26.09.2025. All that was provided was that in

case of two or more bidders who have quoted the lowest amount,

the successful bidder amongst such bidders shall be decided by

the Competent Authority. Therefore, lack of transparency in the

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selection of successful bidder was the glaring point to be

considered. However, as per the Notification dated 19.08.2026, the

procedure and guidelines for selecting bidder/contractor in case of

tied bids have now been provided and therefore, it is seen that the

issue raised by the petitioner has already been addressed.

[17.] Be that as it may, it is neither within the domain of this

Court nor within the scope of judicial review to embark upon an

enquiry in the present PIL as to whether a particular criterion for

selection amongst successful bidders in the event of a tie is wise,

appropriate or preferable, or whether any other criterion could

have been evolved. In matters pertaining to policy and formulation

of criteria for selection, the Government has considerable latitude

to determine the manner in which such matters are to be

regulated, so long as the decision is bona fide, is within the limits

of the authority vested in it and does not suffer from any manifest

illegality or arbitrariness. In the present case, the

guidelines/criteria now prescribed do not appear to be in violation

of any law, nor is there any material to suggest that the same

have been framed or applied mala-fide. This Court, therefore,

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finds no ground to interfere with the same in exercise of its power

of judicial review.

[18.] Insofar as, fixation of the lower and upper ceiling of the

estimated cost put to tender, the same is now not open for

consideration since the scope of the PIL has been confined only to

the criteria for selecting a successful bidder in case of more than

one lowest bidder apart from maintainability of the PIL.

[19.] Insofar as the maintainability of the PIL is concerned, in

view of the developments that has taken place after filing of the

instant PIL, more particularly, the Notification dated 19.08.2026,

we are not inclined to dwell upon the same and instead leave it

open for consideration in appropriate proceedings.

[20.] In the result, the PIL stands closed. Interim order/orders

passed earlier stands vacated.

JUDGE JUDGE

Comparing Assistant