A.K. Goel, C.J.

1. This petition seeks quashing of order dated 17.04.2012 issued by the Executive Engineer, Tawang Electrical Division, Arunachal Pradesh, on the basis of the letter dated 19.03.2012 issued by the Chief Engineer (Power), Government of Arunachal Pradesh, rejecting the bid of the petitioner and initiating steps for fresh tender process. Case of the petitioner is that NIT dated 25.08.2011 was issued by the Executive Engineer (Electrical), Tawang Electrical Division, Government of Arunachal Pradesh, for turnkey (Supply & erection) execution of construction of 132 KV Single Circuit Transmission Line from Khuppi to Tawang including 132/33 KV Sub-Station at Bomdila and Tawang with C/o 132 KV Bay (NEEPCO Extension at Khuppi) (Sub-Head : C/o 4 x 5 MVA, 132/33 KV Sub-Station each at Tawang and Bomdila with 1 No. 132 KV Bay (NEEPCO Extension at Khuppi), at an estimated cost of Rs. 32.87 Crores. The petitioner submitted its bid on 25.10.2011 and on evaluation of technical bids of four tenderers, who had submitted their bids, the Superintending Engineer (Electrical), Dirang, accorded approval to the opening of the price bids of three bidders including the petitioner. On 22.11.2011, the price bids were opened in presence of all the representatives of the bidders and the petitioner was found to be the lowest bidder. The price quoted by the petitioner was 32.54 crores approximately while the price quoted by the other two bidders were 40.49 and 47.47 crores approx. respectively. However, the work was not awarded to the petitioner and vide letter dated 17.4.2012 the petitioner was informed that the tender process had been cancelled and the technically qualified bidders were asked to collect their bid guarantees. A fresh NIT was issued on 09.05.2012 increasing the estimated cost to Rs. 101.30 crores and the Bank guarantee has been increased from 57.87 to 111.30 crores due to increase in estimated cost. According to the petitioner, order dated 17.04.2012 rejecting the lowest bid of the petitioner was arbitrary, based on factually incorrect finding. Even though the State could take its own decision, it could not act arbitrarily. The letter dated 19.03.2012 to the effect that the tender opening committee had found all the bidders to be not qualified for the opening of the price bids and thus opening of price bids was contrary to the tender conditions was not based on facts.

2. Reply has been filed by the Executive Engineer (Electrical), Power Department of the Government of Arunachal Pradesh at Tawang Division, opposing the writ petition. It has been stated that the tender conditions required furnishing of undertaking from the manufacturers for guarantee, quality, timely supply, performance and warrantee and obligations for the equipments. The Divisional Tender Opening Committee found that the petitioner had not furnished the said undertaking as required but approval was granted for opening of price bids by the Superintending Engineer. The competent authority to take the decision was the Chief Engineer who vide letter dated 19.03.2012 informed the Superintending Engineer that the petitioner and other bidders were not qualified. Accordingly, the bids were rejected and the bid guarantee was returned. Though in the letter of the Chief Engineer dated 19.03.2012 mention was made of decision of award being given to Power Grid Corporation, a Government of India Company, the said decision was subsequently revised. The work had to be done during September to December before the heavy rainfall and therefore the tender process had to be completed before August for which new tender process was initiated. The estimated cost now was Rs. 101.30 crores against the earlier estimated cost of Rs. 103 crores and thus the estimated value of the project was lesser than the earlier tender.

3. On 31.07.2012 following order was passed :

Main contention on the basis of which this writ petition has been filed challenging notice inviting tender is that in