JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. T.T. Tara, learned counsel appearing on behalf of the appellant. Also heard Mr. R.H. Nabam, learned Additional Advocate General, Arunachal Pradesh and Mr. T.T. Tagum, learned counsel for the respondent Nos. 9. Though respondent Nos. 7 and 8 were duly served through dasti service, none appears for them.

2. The background fact:

(I) The present intra court appeal is preferred against the order dated 30.03.2023 passed by the learned Single Judge in WP (C) 158/2023.

(II) Pursuant to an IFB dated 02.09.2022, issued by the Executive Engineer, Sagalee Division, Public Works Department for the work ‘construction of road from Marung Gika to Panior Bridge Point via Sarchgai, Mate Kushuk and Pan, 21.00 k.m. under NESIDS 2nd Call, the petitioner along with the respondent Nos. 7, 8 and 9 and some other bidders offered their bids for the work in question.

(III) By an order dated 13.03.2023, issued by the respondent No. 5, the bid submitted by the petitioner and 12 others bidders were rejected for the reason of the same being technically non responsive for non-fulfillment of the eligibility criteria as per clause 4.2 and clause 2.0 (11) (iii) of the ITB.

(IV) To be more precise, the tenders were rejected for non-compliance of 4.2(j), 4.2(i) and 4.2(v) of Section 1 of ITB and clause 2.0(11)(iii) of Section 2 of the ITB. The aforesaid clauses provide for the following:

“4.2(j) affidavit executed before First Class Magistrate/Notary indicating that furnished statements are true and will abide by the terms and conditions of tender.

4.2(i) undertaking regarding litigation history in the form of affidavit executed before the First Class Magistrate/Notary.

4.2(v) details of construction plant and equipment likely to be used in carrying out the work with supporting documents such as Affidavit/ Undertaking/ Lease document certifying all the tools and machinery are in possession with bidder. For details refer Annexure-I of Appendix to ITB.”

(V) Further, Clause 2.0(11)(iii) of Section 2 of the ITB provides for declaration of having not more than two ongoing works in hand by way of an affidavit to be sworn before First Class Magistrate.

(VI) A very important fact, which is required to be noted is that subsequent to issuance of IFB dated 02.09.2022,another IFB relating to the same work was issued on 29.10.2022 and the same was challenged by another bidder in WP (C) 415/2022, who participated in the tender process pursuant to IFB dated 02.09.2022. Said writ petition was allowed by the learned Single Bench by its order 13.02.2023 and the decision and reason is reflected at paragraph 12 of the said order, which is quoted herein-below:

“12. Apart from the justification given in the counter-affidavit of the respondent authorities, which has been quoted hereinabove for issuing the 3rd NIT dated 29.10.2022, no materials have been placed before the Court, indicating the decision taken and notified by the respondent authorities on the bids submitted by the 16 bidders pursuant to NIT dated 02.09.2022. Once an NIT is issued by the authorities and the bids submitted pursuant thereto, I am of the view that the respondent authorities are duty bound to take a decision in the matter either rejecting or accepting the bids submitted with cogent reasons. It is so because, the participants/bidders, who have submitted their respective bids pursuant to NIT dated 02.09.2022 have the right to know as to what is the fate of the bids submitted by them.”

(VII) The respondent State, in the aforesaid writ proceeding, by filing an affidavit took a stand and cited a reason for cancellation of IFB dated 02.09.2022 that the clauses incorporated in the IFB regarding requirement of swearing affidavit before Magistrate First Class was a mistake and such insertion was in contravention and in derogation of provision of statutory Rule 4.(ii)(e) of the Arunachal Pradesh District Based Entrepreneur and Professional Rules, 2018 (for short Rules, 2018) framed under