JUDGMENT :

Heard Mr. I. Choudhury, the learned senior counsel assisted by Mr. N.R. Surana, the learned counsel for the petitioners and Mr. D. Das, the learned senior counsel assisted by Mr. D. Agarwal, the learned counsel for the respondent Nos.6. Also heard Mr. N. Deka, the learned counsel appearing on behalf of the respondent Nos.3 & 4.

2. The petitioners herein have filed the instant writ petition seeking a direction upon the respondent No.3 to forthwith rescind and/or withdraw and/or cancel the bid of the Respondent No.6 and all steps taken in pursuance of the acceptance of the bid of the Respondent No.6 including the purported declaration of the Respondent No.6 as L1 and the work order granted in favour of the Respondent No.6; for a direction upon the respondent No.3 to forthwith declare the petitioner No.1-consortium as the highest bidder (L1) and to grant the job work in Part-A of the tender bearing No.TP/LG/NRL/082176C/001 to the petitioner No.1-consortium ; for setting aside and quashing the bid of the Respondent No.6 and all steps taken in pursuance of the acceptance of the bid of the Respondent No.6 including the purported declaration of the respondent No. 6 as L1 and the work order granted in favour of the Respondent No.6; for setting aside and quashing the modified notice inviting tender dated 12.06.2012 and in the alternative for quashing and setting aside the entire tender process relating to Part-A of the tender No.TP/LG/NRL/082176C/001; for a direction upon the respondent Nos.3 & 4 to call for a fresh tender in respect to Part-A of the tender No.TP/LG/NRL/082176C/001, etc.

3. The Respondent No.6 who was awarded the tender by issuance of the Letter of Intent dated 29.10.2021 had filed an application before this Court challenging the maintainability of the writ petition which has been registered and numbered as I.A.(C) No.1628/2022. In the said application so filed by the Respondent No.6 as applicant, it was contended that the writ petition was not maintainable on the ground that only one of the Consortium partners has approached this Court by filing a writ petition whereas the other consortium partner has been arrayed as proforma respondent No.7. It has been further mentioned that the Petitioner No.1 alone cannot be termed to be a bidder in the tender process sans the proforma respondent No.7 in as much as without the proforma respondent No.7, the Petitioner No.1 alone is not eligible to submit the bid. It was further contended that even prior to filing of the writ petition by the petitioners, the proforma respondent No.7 has already transferred its project logistic business division on the basis of a business transfer agreement with one J. M. Baxi Heavy Private Limited for a consideration of Rs.98.64 crores which was duly informed to the Bombay Stock Exchange Limited as well as the National Sock Exchange of India Limited vide a regulatory communication dated 30.03.2022, and as such, the instant writ petition is not only suffers from suppression of material facts but also not maintainable as the consortium of the Petitioner No.1 and the proforma respondent No.7 is no longer technically qualified in terms of the notice inviting tender, and as such at the instance of the petitioner, the question of invoking jurisdiction under Article 226 of the Constitution of India do not arise in the facts and circumstances of the instant case.

4. It further appears from the records that the petitioners had filed an affidavit-in-opposition to the said Interlocutory Application filed by the Respondent No.6. In the said affidavit-in-opposition, on the question of non-maintainability of the writ petition as only the Petitioner No.1 who was one of the members of the consortium had challenged the tender conditions as well as the decision of the respondent authorities, it was mentioned that the primary role of the proforma respondent No.7 was to add the experience to the Petitioner No.1 as well as to add Order executed by the petitioner