1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant, a company incorporated under the provisions of the Companies Act, 1956, has prayed for the following reliefs :

“A. That this Hon’ble Court be pleased to admit and allow the present petition;

B. That this Hon’ble Court may be pleased to declare the action of the respondent of disqualifying the petitioner no.1 from the bidding process in relation to the Tender Notice No.RIDE/BRCL/EPC/2020-21/002 dated 16.01.2021 issued by the respondent for the “Gauge Conversion of Becharaji (63.83 KM) - Ranuj (101.983 KM) Section, Total length of 38.153 KM Metre Gauge to Broad Gauge with 25 KV AC Electrification in Ahmedabad Division of Western Railway” as being arbitrary, illegal and unjust;

C. that this Hon’ble Court may be pleased to issue a writ, order or direction to the respondent to consider the bid submitted by the petitioner no.1 in relation to the Tender Notice No.RIDE/BRCL/EPC/2020-21/002 dated 16.01.2021 issued by the respondent for the “Gauge Conversion of Becharaji (63.83 KM) - Ranuj (101.983 KM) Section, Total length of 38.153 KM Metre Gauge to Broad Gauge with 25 KV AC Electrification in Ahmedabad Division of Western Railway”;

D. That pending the hearing and adjudication of the present petition, this Hon’ble Court may be pleased to direct the respondent not to proceed further in relation to the Tender Notice No.RIDE/BRCL/EPC/2020-21/002 dated 16.01.2021 issued by the respondent for the “Gauge Conversion of Becharaji (63.83 KM) - Ranuj (101.983 KM) Section, Total length of 38.153 KM Metre Gauge to Broad Gauge with 25 KV AC Electrification in Ahmedabad Division of Western Railway”;

E. For Ex-parte interim and ad-interim reliefs in terms of prayer (D) above;

F. For such other and further reliefs as this Hon’ble Court may deem fit in the facts and circumstances of the present case.”

2. The facts giving rise to this writ-application may be summarised as under :

3. The writ-applicant no.1 is a company incorporated under the provisions of the Companies Act, 1956. The company is engaged in the business of infrastructure, construction and development with operations diversified across the highways, railways, buildings and factories, mining, energy infrastructure and water & irrigation verticals of the infrastructure sector. The writ-applicant no.2 is one of the Directors of the company.

4. The respondent no.1 is a joint venture of the Government of Gujarat and the Ministry of Railways. The respondent no.2 is the company in whose favour the contract has been awarded.

5. It appears from the materials on record that the respondent no.1 issued a tender notice dated 16th January 2021, calling for the bids from the interested bidders for the “Gauge Conversion of Becharaji (63.83 KM) - Ranuj (101.983 KM) Section, total length of 38.153 KM Meter Gauge to Broad Gauge with 25 KV AC Electrification in the Ahmedabad Division of the Western Railway”. The timelines in relation to the bids, as prescribed by the respondent, were as under :

- Bid Due Date (Online) – 06.03.2021 upto 1800 hours. -

Bid Due Date (Physical) – 09.03.2021 upto 1200 hours. -

Bid Opening Date (Technical) – 09.03.2021 upto 1230 hours.

6. The writ-applicant no.1 submitted its bid in the prescribed form on 6th March 2021 through the online portal, and on 9th March 2021 also through the physical mode. The writ-applicant no.1 submitted the following documents along with the bid :

" i. Demand Draft for Bid Processing Fee.

ii. Bid Security in the form of Bank Guarantee.

iii. Letter comprising the Technical Bid.

iv. Details of the Bidder including MoA and AoA of the petitioner no.1 and copy of PAN Card.

v. Technical Capacity of the Bidder.

vi. Details of Eligible Projects.

vii. Mandatory Experience Certificate.

viii. Detail setting out the Financial Capacity of the Bidder.

ix. Statement of Legal Capacity.

x. Power of Attorney for signing the Bid.

xi. Undertaking to agree and abide by the Terms and Conditions of the Contract including the Bid Document.

xii. Letter regarding the Price Bid.

xiii. Acceptance of Longitudinal Section and Dimension of Road Crossing Structures."

7. The technical bids were opened on 9th March 2021. On 12th April 2021, the price bids were to be opened.

8. It is the case of the writ-applicant that the price bid offered by it was not opened and it is at that stage that the writapplicant realized that its bid was rejected at the technical stage.

9. It is not in dispute that the price bid submitted by the writapplicant company is lower than that of the respondent no.2 company in whose favour the contract has been awarded. However, it is also not in dispute that the writ-applicant company failed to submit the physical copies of the Volumes I to IV of the bid document as required in terms of the tender conditions.

10. As the bid offered by the writ-applicant came to be rejected at the technical stage itself, the writ-applicant has come up before this Court with the present writ-application.

SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT :

11. Mr.Soparkar, the learned senior counsel assisted by Mr.Parth Contractor, the learned advocate appearing for the writ-applicant, vehemently submitted that the action on the part of the respondent no.1 in rejecting the bid offered by his client at the technical stage could be termed as wholly arbitrary. He would submit that it was an inadvertent mistake on the part of his client in not submitting the physical copies of the Volumes I to IV of the bid document. This, according to the learned counsel, was only a formal process of submitting a document, which is already available with the respondent no.1. This inadvertent non-submission, according to the learned senior counsel, is effectively of no consequence.

12. Mr.Soparkar would submit that while submitting the letter comprising the technical bid (Appendix-I) and the letter regarding the price bid (Appendix-VI), his client in unequivocal terms had agreed to abide by all the terms and conditions of the bid document. Mr.Soparkar would submit that the nonsubmission of the physical copies of the Volumes-I to IV of the bid document has no bearing either on the technical or the financial eligibility of the bidders in general and the writapplicant no.1 in particular.

13. Mr.Soparkar invited the attention of this Court to Page-154 of the paper-book. The document at Page-154 is a letter comprising the technical bid. This is in context with Clause (2.16.1.4) of the tender document. According to Mr.Soparkar, the letter dated 5th March 2021 forwarded by his client to the Director (Project and Planning) makes it clear that the bid offered by the writ-applicant was unconditional and unqualified. The learned senior counsel would submit that his client had agreed to abide by all the terms and conditions of the bid document. Mr.Soparkar also submitted that in the said letter, his client made it clear that they had no reservations to the bid document including any addendum issued by the authority.

14. In such circumstances referred to above, Mr.Soparkar would submit that the failure on the part of his client in not submitting the physical copies of the Volumes-I to IV of the bid document could not have been made a ground to reject the bid at the technical stage itself.

15. In the aforesaid context, Mr.Soparkar placed strong reliance on a decision of the Supreme Court in the case of Poddar Steel Corporation vs. Ganesh Engineering Works and others, reported in (1991) 3 SCC 273 [LQ/SC/1991/271] , wherein the Supreme Court drew a fine distinction between an essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the conditions. In other words, this decision of the Supreme Court in the case of Poddar Steel Corporation (supra) is being relied upon to fortify the submission that the lapse on the part of the writ-applicant could be termed as merely ancillary or subsidiary with the main object to be achieved by the conditions.

16. Mr.Soparkar, in support of his submissions, has placed reliance on the following other judgments :

" (i) B.S.N.Joshi and Sons Ltd. vs. Nair Coal Services Ltd. and others, reported in (2006) 11 SCC 548 [LQ/SC/2006/1018] ;

(ii) Telecommunications Consultants India Ltd. vs. Bharat Sanchar Nigam Limited, reported in 2014 SCC Online Delhi 7013;

(iii) PES Installations Pvt. Ltd. and another vs. Union of India and another, reported in 2015 SCC Online Delhi 8397;

(iv) Om Prakash Sharma vs. Ramesh Chand Prashar and others, reported in (2016) 12 SCC 632 [LQ/SC/2016/718] ."

17. In such circumstances referred to above, Mr.Soparkar prays that there being merit in his writ-application, the same be allowed and the reliefs prayed for be granted.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1 :

18. Mr.Gursharan H.Virk, the learned counsel appearing for the respondent no.1 Company, has vehemently opposed the present writ-application. He would submit that the Volumes-I to IV were not just to be ignored by the writ-applicant. According to the learned counsel, they are the very heart of the tender and are essential conditions incapable of being relaxed. He would submit that the writ-applicant failed to submit this critical, essential, pre-qualification document, and having accepted such lapse or failure, cannot turnaround and argue that such document was not of such an essential condition. Mr.Virk would submit that the tender document, in an unequivocal and clear terms, stipulated that the bids were required to be submitted in the “required formats” and that the bidder would prepare “1 (one) set each of bidding document required to be submitted as part of the bid”. Mr.Virk pointed out that the tender also stipulated the exact manner in which the submissions would be required to be made with specific emphasis on the manner of printing, use of specific colour of pen-ink, page numbering and binding of the documents. Such stipulation made it abundantly clear that the submissions of the physical bids was a fundamental prerequisite in the process of tender which, indisputably, has not been complied with by the writ-applicant.

19. Mr.Virk would submit that the tender document specifically stipulates that “no hard copy of the price bid shall be submitted along with technical bid”. This makes it abundantly clear that the technical bid was required to be submitted in a hard copy/physical format.

20. Mr.Virk would submit that an offer which is not in conformity with the tender could be termed as non-responsive. It is open for the tendering authority to specify in precise terms what are the essential and non-essential terms and conditions and which terms can be waived or an opportunity be given to fulfill even after the acceptance of the bid.

21. In such circumstances referred to above, Mr.Virk prays that there being no merit in the present writ-application, the same be rejected.

SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 :

22. Mr.Jay Savla, the learned counsel has appeared on behalf of the respondent no.2 in whose favour the contract has been awarded. He would submit that the letter of award dated 12th April 2021 was issued by the respondent no.1 in favour of his client. His client was the qualified L-1 bidder. He would submit that in compliance with the scheme of the tender document, his client has submitted its bank guarantees for Rs.16.68 crore and 3.92 crore respectively on 19th April 2021. Thereafter, the bid security/earnest money deposit of all the remaining nine bidders were returned to the respective bidders including the writapplicant no.1. The learned counsel finally pointed out that the tripartite EPC contract/agreement between his client and the respondent no.1 came to be executed on 19th April 2021. According to Mr.Savla, the writ-applicants have no case worth the name and the writ-application deserves to be rejected.

ANALYSIS :

23. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the respondent no.1 is justified in rejecting the bid offered by the writ-applicant.

24. We take cognizance of the following averments made in paragraphs 1.3 and 4.6 respectively of the memorandum of the writ-application :

“1.3 It is stated that the Tender Notice, inter alia, required the bidders to send hard copy of the Bid Document (Volume I, II, III, IV and V) in a separate sealed envelope to the Respondent. The Petitioner No.1 inadvertently missed out on sending the Volume I to IV in hard copies. The said inadvertent action is neither material in nature nor is it such which leads to any disqualification of a bidder. The Tender Notice does not specifically prescribe that failure to submit the hard copies would entail the Bid to be summarily rejected. On the contrary, the Tender Notice itself prescribes that the Respondent could very well communicate with the bidder and call for the documents to be submitted. No such communication has been done by the Respondent.

4.6 The Price Bid submitted by the Petitioner No.1 is lower than that of the Lowest Bidder declared by the Respondent. The only issue is the inadvertent non-submission of physical copy of only Volume I to IV of the Bid Document, which also is only a formal process of submitting a document which is already available with the Respondent. This inadvertent non-submission is effectively of no significance also because the Petitioner No.1 while submitting the Letter comprising Technical Bid (Appendix-I) and the Letter regarding Price Bid (Appendix-VI) has categorically agreed and undertaken to abide by all the Terms and Conditions of the Bid Document. A comparative tabular summary of all documents and information required to be submitted as compared to the Documents and Information actually submitted by the Petitioner No.1 is annexed hereto and marked as ANNEXURE-P7.”

25. We also take notice of some relevant part of the bidding process as provided in the draft tender notice :

“1.2.1 The Authority has adopted a Single Stage Two Packet Selection process for Evaluating the Bids and selection of the bidder for award of the Project.

In this process, the prospective bidders are required to submit Bid Document in Two Packets as under :

First Packet : Technical Bid

1. Online Submission : Scanned Copies of :

a. Bid Processing Fee Document (Demand Draft etc.)

b. All the Appendices I to VII of Volume-I of Bid document including DD for Bid Security, if any instead of Bank Guarantee.

2. Physical/Offline Submission :

a. Bid Processing Fee Document (Demand Draft etc.)

b. Bid documents consisting of Volume-I to VolumeV, including all Appendices/Annexures and also including DD for Bid Security, if any instead of Bank Guarantee.

Second Packet : Price Bid

3. To be submitted Online Only.

The Bidders are essentially required to submit the Price Bid Online Only (Available online only at www.nprocure.com)

The first part of the bidding process involves evaluating the qualification (the “Qualification”) of interested parties who make a Bid in accordance with the provisions of this RFP (the “Bidder” which expression shall, unless repugnant to the context, include the Members of the Consortium).

The Bidder shall submit the Demand Draft (non-refundable) towards the Bid processing fee in a separate sealed cover super-subscribed as “Demand draft for BIDDING PROCESS and name and address of the Bidder”.

For this payment, the bidder shall enclose a demand draft (Non-Refundable) for an Amount of Rs. 40,000 in the name of Bahucharaji Rail Corporation Limited (BRCL) payable at Gandhinagar. The validity of this Demand Draft shall be minimum of 80 (Eighty) days from the Bid due date.

Bidder to note that bids not accompanied by valid DD towards the cost of bidding process shall be summarily rejected.

At the end of Qualification Stage, the Authority shall announce a shortlist of qualified Bidders as stated in para 3.4, whose Price bids (Second Packet) shall be opened for evaluation in the second part of the Bidding Process Comprising Price Bid (To be Submitted Online).

GOI has issued guidelines (see Annexure VI of Appendix-1A of RFP) for qualification of Bidders seeking to acquire stakes in any public sector enterprise through the process of disinvestment. These guidelines shall apply mutatis mutandis to this Bidding Process. The Authority shall be entitled to disqualify any Bidder in accordance with the aforesaid guidelines at any stage of the Bidding Process. Bidders must satisfy themselves that they are qualified to Bid, and should give an undertaking to this effect in the form at Appendix-IA.

1.2.2 In the Qualification Stage, Bidder would be required to furnish all the information specified in this document.

The Price bids of only those Bidders who are qualified and short-listed by the Authority shall be opened.

The Bidder are, therefore, advised to visit the site and familiarise themselves with the Project prior to submission of BID.

2.15.1 The Bidder shall provide all the information sought under this Bidding process. The Authority will evaluate only those Bid that are received in the required formats and complete in all respects. Incomplete and/or conditional Bids shall be liable to rejection.

2.15.2 The Bidder shall prepare 1(one) set each of bidding document required to be submitted as part of the Bid.

2.15.3 The bid shall be typed and signed by the authorised signatory of the bidder who shall also initial each page in blue ink. In case of printed and published documents, only the cover shall be initialled. All the alterations, omissions, additions or any other amendments made to the Bid shall be initialled by the person(s) signing the Bid. The Bid shall contain page numbers and shall be bound together in hard cover.”

26. In the aforesaid context, we shall now look into the reply of the respondent no.1 :

“10. The impression sought to be created by these averments is that certain documents, which were submitted electronically, were “inadvertently missed out” at the stage of Physical Filing of Bids. This is wholly untrue.

11. As the situation stands in the case of the Petitioner No.1, the Petitioner has not filed Volumes I, II, III and IV of the Bid Document/Tender either in the electronic form or in the physical form. Therefore, the major, substantive, essential terms and conditions of the Tender Document have not been followed/ complied with by the Petitioner No.1; and, therefore, the Petitioner No.1 was never eligible to be qualified at the Pre-Qualification/Technical Stage; and was, in fact, never qualified.

12. Resultantly, the entire substratum of the Petitioners’ case is defective and based on a false rendition of facts; and, therefore, the captioned Petition deserves to be rejected with cost.

Admission by the Petitioners, of non-compliance of essential terms of the Tender Document

13. The Petitioners have, at paragraph nos.1.3 and 4.6 of the Memo of Petition categorically admitted that the Petitioner No.1 “inadvertently missed out on sending the Volume I to IV in hard copies” and that there was “inadvertent non-submission of physical copy of only Volume I to IV of the Bid Document”.

14. This admission of the Petitioners is, respectfully, reason enough for the captioned Petition to be dismissed in limini

15. As submitted hereinabove, the core and central documentation of the Tender/Bid Document, being Volumes I to IV, have not been submitted by the Petitioner either physically or in the electronic format.

16. Volumes I to IV are not merely cosmetic or formal submissions. They are the very heart of the Tender; and are essential conditions incapable of being relaxed.

16.1 Volume I of the Tender Document is the RFQ/RFP and Bid Details which contains all key bidding particulars.

16.2 Volume II is the EPC Agreement and the Conditions of the Contracts, which are required to be accepted by all bidders so as to even be considered for Technical Qualification.

16.3 Volume III is the Scope of Work and Schedules which every bidder must accept as-is, without deviation, modification or condition, for the bid to be considered for Technical Qualification.

16.4 Volume IV contains all Typical Plans and Drawings of the entire route of the rail track for which the Gauge Change is required to be performed, which every bidder must unconditionally accept before the bid can be considered for Technical Qualification.

17. The Petitioner No.1 – Montecarlo Limited failed to submit these critical, essential, pre-qualification document;and now expects, by virtue of orders from this Hon’ble Court, that the Respondent must consider the Petitioner No.1’s bid without any of the said critical, essential, prequalification documents being on record. This would amount to a fundamental alteration of the Tender Document, which, respectfully, is impermissible in law.

18. It is in this context, that the admission of the Petitioners deserves to be considered. The Petitioners admit that they have failed to file/submit essential documents; and, therefore, cannot now demand that their defective and non-responsive bid be considered in vacuum of prequalification documents, which is not permitted. Resultantly, the captioned Petition deserves to be dismissed.”

27. In the reply, more particularly, from paragraph 21 onwards, the scheme and essential framework of the tender document has been explained. We quote the relevant averments thus :

“21.1 The Tendered Works are required to be performed on a turnkey Engineering, Procurement and Construction (EPC) format: and, therefore, it was essential that only those bidders who unconditionally accepted the specific technical conditions of the Tender Document were considered as eligible for participation in the Tender. The Petitioner No.1 has not accepted the Tender Document and has not submitted any documents, either at the e-filing/online submission stage or at the physical filing stage of the Tender.

21.2 It was categorically clarified in the Tender Document that “Bid documents consisting of Volume-I to Volume-V, including all Appendices/Annexures and also including DD for Bid Security, if any instead of Bank Guarantee” were required to be submitted as part of the Physical/Offline Submission. The Petitioners failed to comply with the said Tender condition.

21.3 The Tender specifies that the Price Bids of only these bidders who are qualified and short-listed would be opened. Since the Petitioner No.1 did not qualify, its Price Bid was not opened.

21.4 The Schedule for the Bidding Process prescribed in the Tender Document specifically stipulated that within 2 days of the submission of the Online Bid, the Offline/Hard Copy of Bid Documents was required to be submitted, which was admittedly not done by the Petitioner No.1.

21.5 The Tender Document specifically stipulates that “Offline Bids received by the Authority after the specified time shall not be eligible for consideration and shall be summarily rejected.” It is an admitted position that the Petitioner No.1 never submitted its Offline/Physical Bid within the stipulated timeframe.

21.6 The Tender Document categorically stipulated that the bidder (Petitioner No.1) was deemed to have “made a complete and careful examination of the Bidding Documents”. Therefore, The Petitioners cannot now, belatedly and as an afterthought, demand a rewriting of the tender conditions to suit their convenience.

21.7 The Tender Document specifically notes that “The submission of originals shall be made to G-RIDE for Appendix I to VII”. Therefore, the submission of original, physical tender documents was an essential pre-condition which was not complied by the Petitioner No.1.

21.8 The Tender Document, in unequivocal and crystalclear terms stipulated that bids were required to be submitted in “required formats” and that the bidder would “prepare 1 (one) set of each bidding document required to be submitted as part of the Bid”. The Tender also stipulated the exact manner in which the submissions would be required to be made, with special emphasis on the manner of printing, use of specific color of pen-ink, page-numbering and binding of the documents. These stipulations made it abundantly clear that the submission of Physical Bids was a fundamental pre-requisite in the tendering process, which was admittedly not complied with by the Petitioner No.1.

21.9 Specific directions as regards the sealing and marking of the bids is provided in the Tender Document, which makes it clear that the requirement to submit Physical Bids was not an obscure formality found in some obscure corner of the Tender Document, but an essential requirement of the Tender process.

21.10 The Tender Document specifically stipulates that “No hard copy of the Price bid shall be submitted along with Technical Bid”, thereby making it abundantly clear that the Technical Bid was required to be submitted in a hard-copy/ physical format.

21.11 The Tender Documents specifies the mechanism of submission of “Offline Single Envelop” and also stipulates that “Complete Technical bid (Hard copy) along with all the relevant documents and Bid Processing Fee shall be submitted on or before the due date”. Having failed to do so, the Petitioners cannot now seek a fresh opportunity and preferential treatment.

21.12 One of the key conditions in the “Test of Responsiveness” in the Tender Document is that the “Technical Bid is signed, sealed, bound together in hard cover, and marked as stipulated”, which was admittedly never done by the Petitioners. Additionally, what the Petitioners are demanding is an alteration, modification and substitution of the Tender conditions, which is impermissible in terms of the Tender Document itself.

21.13 It is pertinent to note that even in the Letter Regarding the Price Bid (Appendix VI) submitted by the Petitioner No.1, the Petitioner No.1 had categorically undertaken that “The documents accompanying the Bid, as specified in Clause 2.1.6 of the Bid document, have been submitted in a separate envelop and marked as “Enclosures of the Bid.”. Despite this undertaking, admittedly, the Petitioners have not submitted the said documents.”

LAW ON THE SUBJECT :

28. The scope of judicial review in contractual matters is no longer res integra. The Supreme Court, in Tata Cellular vs. Union of India, reported in (1994) 6 SCC 651 [LQ/SC/1994/685] , held that while the principles of judicial review would apply to the exercise of the contractual powers, the same were accompanied with inherent limitations and that a right balance had to be struck between the administrative discretion to decide matters and the need to remedy any unfairness or arbitrariness by judicial review. In paragraph 94 of the said judgment, the following principles were deduced :

“(1) The modern trend points to judicial restraint in administrative action.

(2) The court does not sit as a Court of appeal but merely reviews the manner in which the decision was made.

(3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.

(5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides.

(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.”

29. In Poddar Steel Corporation (supra), the Supreme Court drew a distinction between an essential condition of eligibility and others which are merely ancillary or subsidiary and held as under :

“It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank the clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said noncompliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in G.J. Fernandez vs. State of Karnataka (1990) 2 SCC 488 [LQ/SC/1990/55] a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty vs. International Airport Authority of India (1979) 3 SCC 489 [LQ/SC/1979/277] : (AIR 1979 SC 1628 [LQ/SC/1979/277] ) but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the Court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs.”

30. In B.S.N. Joshi and Sons Ltd. (supra), the Supreme Court in paragraph 66 after noticing various pronouncements of the Supreme Court on the subject deduced the principles of judicial review in paragraph 66, which reads as under :

“i) If there are essential conditions, the same must be adhered to;

ii) If there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully;

iii) If, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing.

iv) The parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance of another part of tender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the Court otherwise finds relaxation of a condition which being essential in nature could not be relaxed and thus the same was wholly illegal and without jurisdiction.

v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object for which essential conditions were laid down, the same may not ordinarily be interfered with.

(vi) The contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority.

(vii) Where a decision has been taken purely on public interest, the Court ordinarily should exercise judicial restraint.”

31. In M/s. Master Marine Services Pvt. Ltd. vs. Metcalfe & Hodgkinson Pvt. Ltd., reported in (2005) 6 SCC 138 [LQ/SC/2005/514] , and Jagdish Mandal vs. State of Orissa, reported in (2007) 14 SCC 517 [LQ/SC/2006/1265] , the Supreme Court crystallized the following tests for judicial review in administrative action.

“Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bonafide and is in public interest, Courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/ procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a Court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :

i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.

OR

Whether the process adopted or decision made is so arbitrary and irrational that the Court can say : the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.-

ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving black-listing or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.”

32. In Reliance Airport Developers Pvt. Ltd. vs. Airports Authority of India, reported in (2006) 10 SCC 1 [LQ/SC/2006/1051] , the Supreme Court held that judicial review was intended to prevent arbitrariness and must be exercised in larger public interest.

33. In Tejas Construction and Infrastructure Pvt. Ltd. vs. Municipal Council, Sendhwa, reported in (2012) 6 SCC 464 [LQ/SC/2012/432] , the position of law as stated hereinabove was reiterated.

34. In Michigan Rubber (India) Limited vs. State of Karnataka, reported in (2012) 8 SCC 216 [LQ/SC/2012/666] , the Supreme Court held that the basic requirement of Article 14 was fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. In paragraph 23 of the judgment, it was held as under :

“From the above decision, the following principles emerge :

(a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;

(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;

(c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;

(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and

(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.”

35. In Ramana Dayaram Shetty vs. International Airport Authority of India, reported in (1979) 3 SCC 489 [LQ/SC/1979/277] , the Supreme Court held that the words used in a document are not superfluous or redundant but must be given some meaning and weightage.

36. It is a well-settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the court should not be prompt to ascribe superfluity to the language of a document and “should be rather at the outset inclined to suppose every word intended to have some effect or be of some use”. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable.

37. In G.J. Fernandez vs. State of Karnataka, reported in (1990) 2 SCC 488 [LQ/SC/1990/55] , both the principles laid down in Ramana Dayaram Shetty (supra) were reaffirmed. It was reaffirmed that the party issuing the tender (the employer) has “the right to punctiliously and rigidly” enforce the terms of the tender. If a party approaches a court for an order restraining the employer from strict enforcement of the terms of the tender, the court would decline to do so. It was also reaffirmed that the employer could deviate from the terms and conditions of the tender if the “changes affected all intending applicants alike and were not objectionable”. Therefore, deviation from the terms and conditions is permissible so long as the level playing field is maintained and it does not result in any arbitrariness or discrimination in the Ramana Dayaram Shetty sense.

38. The Supreme Court, in the case of Vidarbha Irrigation Development Corporation vs. Anoj Kumar Garwala, reported in (2019) 2 SCALE 134 [LQ/SC/2019/112] , has observed in paragraphs 14 and 15 as under :

“14. However, learned counsel appearing on behalf of the appellant strongly relied upon Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 [LQ/SC/2016/1201] , and paragraphs 14 and 15 in particular, which state:

“14. We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty vs. International Airport Authority of India [(1979) 3 SCC 489] [LQ/SC/1979/277] was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous — they must be given meaning and their necessary significance. In this context, the use of the word “metro” in Clause 4.2(a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.

15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.”

15. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous – they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.”

39. In Central Coalfields Limited and another vs. SLL-SML (Joint Venture Consortium) and others, reported in (2016) 8 SCC 622 [LQ/SC/2016/1041] , the Supreme Court has explained the true purport of its earlier decision in the case of Poddar Steel Corporation (supra). We quote the relevant observations thus :

“39. Poddar Steel was a rather interesting case and added a new dimension to the discourse. The decision of the Allahabad High Court records that the relevant clause in the NIT gave the bidder the option of depositing the earnest money in cash or by a "demand draft drawn on DLW Branch of SBI in favour of Assistant Chief Cashier, DLW/- Varanasi." (Ganesh Engineering Works v. Union of India and others, 1990 All. LJ 1140) As many as 21 parties had responded to the NIT, but 8 of them had not deposited any earnest money at all and the remaining 13 bidders had "deposited the earnest money by one mode or the other but not necessarily in the manner provided in the NIT except perhaps a few." The Tender Committee deviated from the terms of the NIT and considered the bids of these 13 bidders and accepted the bid of Poddar Steel, who had given the earnest money not by cash or a demand draft but by "a loose cheque drawn on its C/D account in the Union Bank of India, Sonarpura, Varanasi." On the issue of discriminatory treatment, the contention of the employer was that since all the 13 bidders who had made the earnest money deposit were treated equally, there was no issue of any discriminatory treatment.

40. However, the High Court took the view, following Ramana Dayaram Shetty and the privilege-of-participation principle, that it was possible that if those who did not deposit any earnest money had known that a crossed cheque (drawn on a bank other than SBI) towards earnest money was acceptable to the employer, they too could have been in the fray. Under these circumstances, the High Court held that excluding them from competition, through this unannounced deviation affecting bidders and potential bidders alike, rendered the bidding process unfair. The High Court introduced an "essential term" concept and held that the clause in the NIT relating to deposit of earnest money was an essential term thereof and could not be deviated from. The Allahabad High Court held:

"The mere fact that all the tenderers who had deposited the earnest money, whether in terms of Clause 6 or not had been treated alike cannot make any difference. It is quite possible to visualise that the parties who had failed to deposit the earnest money may also have been in the fray had they known that earnest money through cheque was also acceptable. Thus they have obviously been deprived from competing with others and this makes the action of Respondents 1 to 5 unfair when condition No. 6 of the NIT so specifically points out that deposit of earnest money in any other mode except in cash or by demand draft would not be acceptable. It leads us to think that this was an essential precondition for submitting tenders and the Respondents were not entitled to deviate from this. All tenders which were not accompanied by deposit of earnest money strictly in the manner indicated in the NIT deserved to be rejected. We reject the contention of the Respondents that the earnest money could be accepted even when it was deposited by some mode other than those in NIT. We also hold that Clause 6 of NIT is not merely ancillary or subordinate condition but in view of the language in which is couched the same was a crucial and essential terms of the tender which could not be deviated from."

41. In appeal, this Court accepted the theory of essential and non-essential or ancillary or subsidiary terms of an NIT. It was held that the cheque of the Union Bank of India issued by Poddar Steel (though a deviation from the terms of the NIT) was sufficient for meeting the conditions of the NIT, the condition being ancillary or subsidiary to the main object to be achieved by the condition and that the employer could waive the "technical literal compliance" of the earnest money clause of the NIT "specially when it was in its interest not to reject the said bid which was the highest." In other words, this Court concluded that an essential term of the tender document could not be deviated from but an ancillary or subsidiary or non-essential term could be deviated from, and that the deviation could be without any reference to potential bidders.

42. Unfortunately, this Court did not at all advert to the privilege-of-participation principle laid down in Ramana Dayaram Shetty and accepted in G. J. Fernandez. In other words, this Court did not consider whether, as a result of the deviation, others could also have become eligible to participate in the bidding process. This principle was ignored in Poddar Steel.

43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and re-introducing the privilege-ofparticipation principle and the level playing field concept, this Court laid emphasis on the decision making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-judge decision in Tata Cellular v. Union of India (1994) 6 SCC 651 [LQ/SC/1994/685] which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of the NIT is not arbitrary, irrational, unreasonable, malafide or biased, the Courts will not judicially review the decision taken. Similarly, the Courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation….

46. It is true that in Poddar Steel and in Rashmi Metaliks a distinction has been drawn by this Court between essential and ancillary and subsidiary conditions in the bid documents. A similar distinction was adverted to more recently in Bakshi Security and Personnel Services Pvt. Ltd. v. Devkishan Computed Pvt. Ltd. 2016 (7) SCALE 425 [LQ/SC/2016/951] through a reference made to Poddar Steel. In that case, this Court held a particular term of the NIT as essential (confirming the view of the employer) and also referred to the "admonition" given in Jagdish Mandal followed in Michigan Rubber (India) Limited v. State of Karnataka, (2012) 8 SCC 216 [LQ/SC/2012/666] . Thereafter, this Court rejected the challenge to the employer's decision holding Bakshi Security and Personnel Services ineligible to participate in the tender.

47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or malafide or intended to favour someone or a decision "that no responsible authority acting reasonably and in accordance with relevant law could have reached" as held in Jagdish Mandal followed in Michigan Rubber.

48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.

49. Again, looked at from the point of view of the employer if the Courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby re-write the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that "Any Bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive." Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a nonessential term of the GTC. From the point of view of CCL the GTC has been impermissibly re-written by the High Court.”

40. The decision in the case of Poddar Steel Corporation (supra) was doubted by the Supreme Court in the later decision in Central Coalfields Ltd. (supra). In that case, the Court observed that the "issue of acceptance or rejection of a bid of a bidder should be looked at not only from the point of view of an unsuccessful party but also from the point of view of the employer." The Supreme Court reiterated the principal that the soundness of an administrative decision may be questioned only if it is irrational or malafide or intended to favour someone. It referred to its earlier decisions in Jagdish Mandal vs. State of Orissa, (2007) 14 SCC 517 [LQ/SC/2006/1265] and M/s Michigan Rubber (I) Ltd. vs. State of Karnataka, (2012) 8 SCC 216 [LQ/SC/2012/666] , wherein the Court had opined that a decision which no responsible authority acting reasonably and in accordance with relevant law could have reached, was also susceptible to challenge on that ground.

41. In Raunaq International Ltd. vs. I.V.R. Construction Ltd., reported in (1999) 1 SCC 492 [LQ/SC/1998/1168] , the Supreme Court held that the superior courts should not interfere in matters of tenders unless substantial public interest was involved or the transaction was malafide.

42. In Air India Limited vs. Cochin International Airport Ltd., reported in (2000) 2 SCC 617 [LQ/SC/2000/214] , the Supreme Court once again stressed the need for overwhelming public interest to justify judicial intervention in contracts involving the State and its instrumentalities. It was held that the courts must proceed with great caution while exercising their discretionary powers and should exercise these powers only in furtherance of public interest and not merely on making out a legal point.

43. In Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd., reported in (2005) 6 SCC 138 [LQ/SC/2005/514] , it was held that while exercising power of judicial review in respect of contracts, the Court should concern itself primarily with the question, whether there has been any infirmity in the decisionmaking process. By way of judicial review, the court cannot examine the details of the terms of contract which have been entered into by the public bodies or State.

44. In Jagdish Mandal vs. State of Orissa, reported in (2007) 14 SCC 517 [LQ/SC/2006/1265] , it was held:

“22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bonafide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold……..”

45. In Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd., reported in (2016) 16 SCC 818 [LQ/SC/2016/1201] , it was held that a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of malafides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision-making process or the decision. The owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given.

46. In Montecarlo vs. NTPC Ltd., reported in AIR 2016 SC 4946 [LQ/SC/2016/1345] , it was held that where a decision is taken that is manifestly in consonance with the language of the tender document or sub-serves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints.

47. Most recently the Supreme Court in Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others, reported in (2019) 6 SCALE 70 [LQ/SC/2019/661] , observed that a writ petition under Article 226 of the Constitution of India was maintainable only in view of government and public sector enterprises venturing into economic activities. This Court observed that there are various checks and balances to ensure fairness in procedure. It was observed that the window has been opened too wide as every small or big tender is challenged as a matter of routine which results in government and public sectors suffering when unnecessary, close scrutiny of minute details is done.

48. The Supreme Court, in SILPPI Constructions Contractors vs. Union of India and another [Special Leave Petition (Civil) Nos.13802-13805 of 2019, decided on 21st June 2019], observed in paragraphs 19 and 20 as under :

“19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, malafides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or malafides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges’ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.

20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, malafides or perversity. With this approach in mind we shall deal with the present case.”

49. Thus, from the aforesaid discussion of the case-law what is discernible is that the court must, as far as possible, avoid a construction which would render the words used by the author of the tender document meaningless and futile. The court would not ascribe superfluity to the language of a document. The court would necessarily examine the decision making process to ascertain whether the process adopted or decision made by the authority is malafide or arbitrary and irrational or is such that no such authority acting reasonably and in accordance with the relevant law could have reached, and whether the decision is against the public interest. As observed in Central Coalfields Limited (supra) that if an administrative decision, even a deviation in the terms of the notice inviting tender, if it is not arbitrary, irrational, unreasonable, malafide or biased, the courts would be loath to undertake judicial review of such decision. Also the courts would not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. The employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions.

50. We are not impressed by the vociferous submissions of Mr.Soparkar that the submission of the physical copies of the Volumes I to IV of the bid document could be termed just a formal process of submitting a document which was already available with the respondent.

51. We are also not impressed by the submission of the learned senior counsel that such lapse would fall in the second category as laid in the case of Poddar Steel Corporation (supra) as the writ-applicant categorically agreed to abide by all the terms and conditions.

52. Mr.Virk, the learned counsel appearing for the respondent no.1 is right in his submission that the bids were required to be submitted in the “required formats” and that the bidder was obliged to prepare “1 (one) set each of the bidding document and submit the same as a part of the bid”. The tender also stipulates the exact manner in which the documents are to be submitted with specific emphasis on the manner of printing, use of specific colour of pen-ink, page numbering and binding of the documents. The documents specifically stipulate that “no hard copy of the price bid shall be submitted along with technical bid”, thereby making it abundantly clear that the technical bid was required to be submitted in a hard copy/physical format. The technical bid was supposed to be signed, sealed, bound together in hard cover and marked as stipulated. To exempt, the writ-applicant from undertaking the stipulated exercise would be as good as modifying or substituting the tender conditions which is even otherwise not permissible in law.

53. It was strenuously urged before us by the learned senior counsel appearing for the writ-applicant that the mistake committed by the writ-applicant could be termed as unintentional, and if that be so, then the writ-applicant, being the lowest bidder, should be considered for awarding the contract. The Supreme Court, in W.B.State Electricity Board vs. Patel Engineering Co. Ltd. and others, reported in (2001) 2 SCC 451 [LQ/SC/2001/142] , had observed in paragraph 23 as under :

“The mistakes/errors in question, it is stated, are unintentional and occurred due to the fault of computer termed as a repetitive systematic computer typographical transmission failure. It is difficult to accept this contention. A mistake may be unilateral or mutual but it is always unintentional. If it is intentional it ceases to be a mistake. Here the mistakes may be unintentional but it was not beyond the control of respondent Nos.1 to 4 to correct the same before submission of the bid. Had they been vigil in checking the bid documents before their submission, the mistakes would have been avoided. Further, correction of such mistakes after one and a half month of opening of the bids will also be violative of Clauses 24.1, 24.3 and 29.1 of ITB.”

54. In the overall view of the matter, we are convinced that we should not interfere with the decision taken by the respondent no.1.

55. In the result, this writ-application fails and is hereby rejected. The interim relief, earlier granted, stands vacated forthwith.