Gauhati High CourtM/S Naagaamii Infratech Pvt. Ltd vs Joint Venture Construction And 7 ... on 11 November, 2021Page No.# 1/8\n\nGAHC010174592021\n\n\n\n\n                      THE GAUHATI HIGH COURT\n  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n                            Case No. : WA/283/2021\n\n         M/S NAAGAAMII INFRATECH PVT. LTD.,\n         REP. BY ITS DIRECTOR, MR. ROKOLHU ANGAMI, R/O- JHARNAPANI,\n         MEDZIPHEMA, DIMAPUR, NAGALAND, PIN- 797106.\n\n\n         VERSUS\n\n         JOINT VENTURE CONSTRUCTION AND 7 ORS.\n         OF M/S. VERTEX CONSTRUCTION , M/S. MULTI BUILDERS AND M/S. HI-\n         TECH, PUDUMPUKHURI, DIMAPUR, NAGALAND, PIN- 797112.\n\n         2:M/S. VERTEX CONSTRUCTION\n          REP. BY ITS PROPRIETOR MR. Y. AKATO ZHIMOMI\n          PUDUMPUKHURI\n          DIMAPUR\n          NAGALAND\n          PIN- 797112.\n\n         3:M/S. MULTI BUILDERS\n          REP. BY ITS PROPRIETOR MR. HOWOTO JAKHALU\n         TRINITY APARTMENT\n          BANK COLONY\n          DIMAPUR\n          NAGALAND\n          PIN- 797112.\n\n         4:M/S. HI-TECH CONSTRUCTION AND CO.\n          REP. BY ITS PROPRIETOR MR. KUCHI RANGKAU ZELIANG\n          OLD MINISTER HILL\n          KOHIMA\n          NAGALAND\n          PIN- 797001.\n\n         5:THE STATE OF NAGALAND\n                                                                     Page No.# 2/8\n\n           REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT OF NAGALAND\n           KOHIMA, NAGALAND.\n\n           6:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF NAGALAND\n            DEPARTMENT OF WORK AND HOUSING\n            KOHIMA, NAGALAND.\n\n           7:THE ENGINEER-IN-CHIEF\n            NAGALAND PUBLIC WORKS DEPARTMENT (R AND B)\n            GOVERNMENT OF NAGALAND\n            KOHIMA, NAGALAND.\n\n           8:THE DIRECTOR, NEC\n            MINISTRY OF DONER\n           VIGYAN BHAWAN ANNEXE\n            MAULANA AZAD ROAD\n            NEW DELHI, PIN- 110011\n\nAdvocate for the Appellant   : MR. K N CHOUDHURY, SENIOR ADVOCATE\nAdvocate for the Respondents : GA, NAGALAND, MR. S. BORGOHAIN\n\n\n                                  WA 283/2021\n                              With WA 285/2021\n\n\n                                BEFORE\n                     HONOURABLE THE CHIEF JUSTICE\n                 HONOURABLE MR. JUSTICE SOUMITRA SAIKIA\n\n\n                                  ORDER11.11.2021\n\n     Heard Mr. K. N. Choudhury, learned senior counsel, appearing for the\nappellant in both the appeals. Also heard Ms. A. Aier, learned Government\nAdvocate, appearing for the State of Nagaland as well as Mr. S. Borgohain,\nlearned counsel, appearing for the private respondent nos. 13 and 14/writ\npetitioners.2.    These writ appeals have been filed by the appellants against the common\norder dated 04.10.2021, passed in WP(C) 93/2021 and WP(C) 94/2021,\n                                                                       Page No.# 3/8\n\nwhereby the preliminary objections raised by the private respondent/present\nappellant on the maintainability of the writ petitions have been rejected by the\nlearned Single Judge.3.   The case has a rather chequered history. The Chief Engineer, Public Works\nDepartment (R&B), Government of Nagaland, issued a Notice Inviting Tender\n(NIT) on 13.09.2019 for the work of construction of road from Tening to Lekie in\nthe district of Peren, Nagaland. In response to the aforesaid NIT, three bidders\nwere ultimately declared qualified. The writ petitioner, namely, "Joint Venture\nConstruction", consisting of three constituents, namely (i) M/s Vertex\nConstruction, (ii) M/s Multi Builders and (iii) M/s Hi-Tech Construction & Co. was\none such qualified bidder. Apart from that, the present appellant, namely,\n"Naagaamii Infratech Pvt. Ltd." was also one of the qualified bidders. It appears\nthat when the financial bids were opened, writ petitioners ("Joint Venture\nConstruction") emerged as the L1 bidder. However, since Letter of Acceptance\n(LOA) was not being issued in favour of "Joint Venture Construction", one of the\nconstituents of "Joint Venture Construction", namely, M/s Hi-Tech Construction &\nCo. filed a writ petition, being WP(C) 249/2019, before the Kohima Bench of this\nCourt seeking a direction to the authorities to issue LOA in its favour. However,\nduring pendency of WP(C) 249/2019, the State respondents cancelled the\ntender process vide Cancellation Corrigendum Notice dated 16.12.2019 and\nissued a fresh NIT dated 18.12.2019 for the aforementioned work of road\nconstruction. Aggrieved with the cancellation of the tender process, M/s Hi-Tech\nConstruction & Co. (one of the constituents of "Joint Venture Construction") filed\nanother writ petition before the Principal Seat of this court, which was\nregistered as WP(C) 75/2020 and the said writ petition [WP(C) 75/2020] was\ntransferred to the Kohima Bench of this court vide an order dated 06.01.2020\n                                                                          Page No.# 4/8\n\npassed by this Court. On transfer of the case to Kohima Bench of this court, the\nwrit petition [WP(C) 75/2020] was renumbered as WP(C) 3/2020.4.   In the aforesaid two writ petitions the present appellant (respondent no. 5\nin the writ petitions) raised objection on the maintainability of both the writ\npetitions on the ground that it was the "Joint Venture Construction" which had\ntaken part in the bidding process and, therefore, it was the "Joint Venture\nConstruction" who, being a legal entity by itself, could approach the court and\nM/s Hi-Tech Construction & Co. was only one of the constituents of "Joint\nVenture Construction". Thereafter, the writ petitioner (M/s Hi-Tech Construction\n& Co.) filed an Interlocutory Application in the aforesaid writ petitions seeking\nimpleadment of the other entities of "Joint Venture Construction" in the writ\npetitions. The Interlocutory Application was registered as I.A. (C) 35/2021.\nHowever, learned counsel for the writ petitioner/applicant sought to withdraw\nthe writ petitions and the Interlocutory Application with liberty to file afresh and,\naccordingly, by an order dated 28.04.2021, passed in I.A. (C) 35/2021, the\nInterlocutory Application as well as the writ petitions were disposed of on\nwithdrawal with liberty granted to the petitioner to file fresh writ petition. The\norder dated 28.04.2021 passed by the learned Single Judge reads as under:"Heard Mr. S. Borgohain, learned counsel for the petitioners. Also\n\n      heard Mr. L. Iralu, learned senior counsel for the respondent No.5.\n      ms. V. Suokhire, learned Additional Senior Government Advocate\n      appears for the State respondents and Mr. Z.N. Ngullie, learned\n      C.G.C. appears for the Union of India.When the matter was put up for hearing on the I.A. Application\n      No.35/2021 connected with W.P. (C) 3/2020 and W.P. (C)\n      249/2019, Mr. Borgohain learned counsel for the petitioners submits\n                                                                   Page No.# 5/8\n\n     that the matters has been kept pending with several I.A.\n     applications being filed delaying the matter because of technical\n     defects in the writ petition which is ultimately not serving the\n     purpose of any parties. Reminding this Court that it is an issue of\n     public interest and also reminding that there is already a PIL filed\n     for expeditious construction of the road concerned, he submits that\n     he may be allowed to withdraw W.P. (C) 249/2019, W.P. (C) 3/2020\n     and also the connected I.A. (Civil) 35/2021 with liberty to file afresh\n     so that the matter may not be lingered for very long by addressing\n     the technicalities involved in the writ petition. He has prayed that\n     he may be allowed to withdraw the above mentioned cases with\n     liberty to change only the cause title which is the issue pending\n     before this Court and to incorporate all the facts that is contained in\n     the above mentioned two writ petition since there will be absolutely\n     no diversion of the facts enumerated therein the two writ petitions.Learned senior counsel Mr. L. Iralu appearing for the\n     respondent No.5 submits that he has no objection for withdrawing\n     the writ petitions and to file a fresh petition by the petitioners.However, the extra prayer that has been made by the learned\n     counsel for the petitioners is procedurally improper since once the\n     writ petition is withdrawn it has to be followed by filing fresh\n     petition and also by issuing notice to the parties. He also points out\n     that the parties are at liberty to engage any counsel and he would\n     not know the mind of the respondents as to whether he would be\nengaged again in the newly filed writ petition. Therefore, expressing his\nreservation on the procedure concerned he has submitted that procedure\nmay be followed.Page No.# 6/8\n\n           I have heard the parties and I am of the view that the matter\n     has been kept pending for very long for technicalities and the\n     connected I.As are being filed only on the issue of locus standi which\n     is resolvable by filing a fresh petition incorporating the concerned\n     people having locus standi. The respondents have also not objected\n     to the withdrawal, they have only expressed reservation on the\n     procedural aspect as prayed for by the learned counsel for the\n     petitioners. I am in agreement with the submissions made by the\n     learned senior counsel for the respondent No.5 on the issue of\n     procedure concerned.The petitioners are allowed with withdraw W.P. (C) 3/2020, W.P. (C)\n     249/2019 and I.A. (Civil) 35/2021 with liberty to file afresh by\n     adopting procedures as prescribed by law.Accordingly, W.P. (C) 3/2020, W.P. (C) 249/2019 and I.A.\n     (Civil) 35/2021 are disposed of on withdrawal."5.    Thereafter, two fresh writ petitions, being WP(C) 93/2021 and WP(C)\n94/2021 were filed by "Joint Venture Construction" and its aforementioned three\nconstituents as the petitioners. WP(C) 93/2021 was filed seeking direction to the\nrespondent authorities to issue LOA in favour of the petitioners since the\npetitioners were the L1 bidder. WP(C) 94/2021 was filed praying for quashing of\nthe Corrigendum Notice dated 16.12.2019, whereby the NIT dated 13.09.2019\nhad been cancelled as well as for quashing of the subsequent/fresh NIT dated\n18.12.2019.6.   In the second round of writ petitions [WP(C) 93/2021 and WP(C) 94/2021]\nalso preliminary objections were again raised by the appellant/respondent No. 5\non the maintainability of the writ petitions on the ground that while the earlier\n                                                                         Page No.# 7/8\n\nwrit petitions were withdrawn, liberty to file fresh writ petition was granted to\nthe writ petitioner, i.e. M/s Hi-Tech Construction & Co., which is only one of the\nconstituents of "Joint Venture Construction". Moreover, there was inordinate\ndelay on the part of the writ petitioners inasmuch as the writ petitions have\nbeen filed in the year 2021, i.e. almost after two years since the first tender\nprocess had been cancelled. However, the learned Single Judge, vide the\nimpugned order dated 04.10.2021 has rejected the preliminary objections raised\nby the appellant/respondent No. 5 on the maintainability of the writ petitions.7.   We are not going into the technicalities of the matter. The fact, however,\nremains that even if liberty was not granted to "Joint Venture Construction" to\nfile writ petition, in any case, "Joint Venture Construction" cannot be stopped\nfrom filing writ petition. All the same, before the writ petitions were taken up for\nconsideration on merits, some aspects, such as, whether there was inordinate\ndelay in filing the writ petition; whether "Joint Venture Construction" had in any\nway participated in the subsequent tender process initiated vide NIT dated\n18.12.2019 or not and, if participated, whether it amounts to waiver, etc.,\nshould be considered. However, all these aspects have not been considered by\nthe learned Single Judge.8.   In view of the above, we are of the opinion that the matter needs to be\nremanded back to the learned Single Judge to decide the matter afresh by\ntaking into consideration all the aspects referred to above.9.    Accordingly, without interfering with the impugned order passed by the\nlearned Single Judge, we remand back the matter to the learned Single Judge\nwith the request to decide the same as expeditiously as possible. However, the\nlearned Single Judge is also requested to consider the aspects of inordinate\ndelay in filing the writ petitions and the maintainability of the writ petitions on\n                                                                 Page No.# 8/8\n\nthe grounds as raised by the appellant/respondent no. 5.10.   The writ appeals are disposed of in terms of the above.JUDGE                  CHIEF JUSTICE\n\n\n\nComparing Assistant