Court holds that modification of an interim restraint in a pending writ petition is not appealable under Clause 12 of the Letters Patent; says tender process for operational defence works cannot be stalled at the cost of public interest.
The Jammu and Kashmir and Ladakh High Court has dismissed an intra-court appeal filed by M/s Jai Sukrala Trading Co. against an interim order in a defence tender dispute, holding that the modified order was not a “judgment” under Clause 12 of the Letters Patent and therefore not maintainable as an appeal.
A Division Bench comprising Justice Sindhu Sharma and Justice Shahzad Azeem said the impugned order of 13 August 2026 was only a discretionary modification of an earlier interim direction passed in a pending writ petition. Since the writ court had neither finally decided the validity of the rejection of the appellant’s bid nor conclusively ruled on the tender process, the order did not determine any substantive right with finality.
The dispute arose from a defence procurement process initiated by the Commanding Officer, 59 Engineer Regiment, for the realignment of IAIOS/AOIS at multiple stretches in the Naushera-Jhanger sector. The appellant, a supplier engaged in defence-related works, challenged its technical rejection in all nine tenders floated under the request for proposal. It alleged that a corrigendum issued shortly before the bid deadline introduced fresh conditions, including mandatory physical submission of a solar cube generator-cum-inverter sample, and claimed irregularities in the technical evaluation of all bidders.
The appellant also sought directions for re-evaluation before a duly constituted Technical Evaluation Committee and an interim restraint on opening or finalising financial bids. While an initial order dated 3 August 2026 deferred opening of financial bids, the writ court later modified that order and permitted the respondents to proceed with and finalise the tender process, subject to the final outcome of the writ petition. The successful bidder was also directed not to claim equity.
Before the Division Bench, the appellant argued that the modification effectively deprived it of interim protection and amounted to a final order affecting its right to compete. The Union of India, however, contended that financial bids had already been opened, that the appellant had earlier withdrawn from a similar tender after being declared L-1, and that the tender related to urgent operational defence requirements in a sensitive border area.
The High Court held that judicial review of tenders is limited to examining the decision-making process and not re-evaluating technical assessments made by competent authorities. The Bench observed that courts should exercise greater restraint in matters involving technical defence procurement, especially where public interest and operational readiness are involved.
Referring to precedents including Shah Babulal Khimji and Midnapore Peoples’ Coop Bank, the court reiterated that only orders determining rights or issues with finality qualify as “judgments” under Clause 12. Since the writ petition remained pending and all major issues—including the validity of the rejection, allegations of arbitrariness, and the disputed corrigendum—were left open for final adjudication, the appeal was held to be not maintainable.
The court emphasized that freezing an ongoing defence tender merely because a bidder claims it should have been considered technically qualified would jeopardize larger public and operational interests. It therefore declined to interfere with the writ court’s balancing of equities and dismissed the appeal, while clarifying that no opinion had been expressed on the merits of the writ petition.
Bottom Line :
Judicial review of tenders is limited to examining the decision-making process and not re-evaluating technical decisions made by the competent authorities. In cases involving defense procurements for operational requirements, the public interest and national security take precedence over the commercial interests of private bidders.
Statutory provision(s): Clause 12 of the Letters Patent
