JUDGMENT & ORDER :

1. The nature of the grievance being similar in these two writ petitions filed by the same petitioner, the same are taken together for analogous hearing and are disposed of by this common judgment and order.

2. The issue briefly is with regard to the requirement in the tender notice to deposit the Bid Security and the Tender Document Cost by online payment. The amount as such is not the subject matter of dispute and it is only the manner prescribed which the writ petitioner has raised for a re-consideration by invoking the writ jurisdiction of this Court for a judicial review.

3. Before coming to the issue in details, it would be convenient to place the facts of the case in brief.

4. It may be mentioned that this Court has not gone into the detailed facts of the work connected as the same would not be relevant for adjudication of the dispute.

WP(C) No./ 5053/2022

5. This writ petition concerns a Notice Inviting Tender dated 19.07.2022 concerning 7 (seven) numbers of works which are:

(i) MRL08-Athuagaon to Chungapota via Dangtol Bazar,

(ii) T05- Rongsai to Borjhora Road (NEC),

(iii) MRL08-Rangauti Pt II to Chandrapur via Borbond Pt III,

(iv) T03-Subansah to Halogaon via Dhareswari Mandir,

(v) MRL 14- Bechimari to Daipangpara,

(vi) T03- Gomothagaon Bherbheri Chalchali Road and

(vii) MRL04-NH-52 Koomsang to Gulapjan via Bordubi TE factory.

The estimated value of the said work was Rs. 2940.871 lakhs and the last date of submission of the tender and the opening of tenders was fixed on 12.08.2022.

WP(C) No. 7520/2022

6. This writ petition concerns a Notice Inviting Tender dated 14.11.2022 concerning eleven nos. of roads and ten nos. of bridges work in the districts of Barpeta, Karbi-Anglong, Kokrajhar, Darrang, Nagaon, Sibsagar and Chirang including routine maintenance for five years under Pradhan Mantri Gram Sadak Yojana for the year 2022-2023.

The last date for submission of tender is fix on 24.11.2022.

7. The petitioner claims to be eligible in all respects and accordingly procured a copy of the tender document. Clause 7.1 of the said document however provides that the tenderers have to deposit Bid Security and Tender Document Cost by making online payment.

8. It is the case of the petitioner that the said direction cannot be insisted upon as such payment should also be accepted in the form of Bank Guarantee.

9. It is the case of the petitioner that deposit of Bank Guarantee against such requirement is beneficial to the tenderers to participate in a tender process and such practice has been prevalent since a long time. It is the further case of the petitioner that on no count, any prejudice would be caused to the owner if the payment is made by way of Bank Guarantee. The petitioner alleges that the aforesaid requirement has been introduced only to limit the competition amongst certain blue eyed persons.

10. I have heard Shri K.N. Choudhury, learned Senior Counsel assisted by Shri R.M. Deka, learned counsel for the petitioner in both the cases whereas the State is represented by its Advocate General, Shri D. Saikia assisted by Shri B. Gogoi, the learned counsel. Shri K. Gogoi, learned counsel has represented the respondent no. 3 which is an Agency of the Government of India.

11. Shri Choudhury, the learned Senior Counsel for the petitioner has submitted that on principle, there is no opposition or objection on the part of the petitioner regarding the payment to be made against earnest money and Bid Security which are usual requirements in a tender. He submits that the only grievance is with regard to the mode of making such payment which as per the impugned tender notice is by online payment.

12. It is submitted that the said requirement can at best be termed as directory in nature and this according to the petitioner stood substantiated by other contemporaneous tender notices.

13. Attention of this Court has been drawn to the affidavit-in-reply filed by the petitioner dated 23.09.2022 filed in WP(C)/5053/2022 with which a Notice Invit