Ravindra Maithani, J.

1. The respondent no. 2, the Uttarakhand Jal Vidyut Nigam Ltd. ("the UJVN Ltd.") invited tenders for balance civil works for construction of 204 meter high concrete gravity dam intake (3 x 100 MW) capacity underground power house and appurtenant works on river Yamuna of Lakhwar Multipurpose Projects in District Dehradun/Tehri Garhwal, Uttarakhand ("the project") by Tender No. 01/Civil Lakhwar UJVN/2021-2022 ("the tender").

2. Instant petition has been filed for quashing entire tender process with the direction to respondent no. 1, UJVN Ltd. to reinitiate/re-invite the fresh tenders with the related reliefs.

3. Heard learned counsel for the parties and perused the record.

4. The UJVN Limited invited tenders for the project on 29.12.2021. No bid was submitted pursuant to the initial tender. 17 Extensions were given by the UJVN Limited for submitting tenders. The 17th extension expired on 09.11.2022. On 11.11.2022, 18th extension was given. The extended date for submission of bids was till 21.11.2022. Instant is a Public Interest Litigation. According to the petitioner, he has reasons to believe that in complete ignorance and breach of provisions of the tender, the respondents intend to award the tender to Larsen & Toubro Limited ("the L & T"), the sole bidder. The petitioner seeks the indulgence of this Court for overseeing the decision making process on awarding of tender. Some of the grounds taken in the petition are as follows:-

(i) That the petitioner verily believes that the decision making process in the present tender is not free and fair. Therefore, process may be quashed by the Court.

(ii) The petitioner verily believes that unlawful tactics collectively adopted by the respondents is violation of public interest.

(iii) The petitioner verily believes from the material available in the public domain that the respondents are violating the entire bidding process in the manner which would defeat the public interest at large.

(iv) The tender has been issued in relation to a large project which would cause a huge ramification to the public exchequer.

(v) Despite the tender being of such a high magnitude, the bid documents only enables sole bidders to submit bids, thereby preventing JVs/partners to submit a joint bid.

(vi) The work is being awarded in violation to Clause 4.2 of the bid documents, which relates to experience of prior construction.

(vii) For a bidder to be eligible, as per clause 4.2 of the bid document, the bidder should have completed at least one concrete dam in a hydroelectric project with a minimum dam height of 140 meters above the deepest foundation level or two concrete dams in a hydroelectric project with a minimum height of 80 meters above the deepest foundation level.

(viii) The 17th extension had expired on 09.11.2022, but the respondent no. 1, the UJVN Limited unilaterally extended the time for submitting of bids till 21.11.2022.

(ix) The submission of bid by a sole bidder was completely belated and result of the collusive, arbitrary and biased tactic adopted by the respondent no. 1.

(x) There are facts available in public domain which clearly indicate that the sole bidder is completely ineligible to submit the bid.

5. Learned Senior counsel appearing for the petitioner has mainly raised three points in his submissions as follows:

(i) Clause 4.2 of the bid document, requires prior work experience, which has been violated in the instant case. It is argued that a bidder was required to have experience of similar contracts in Hydroelectric Projects, as given under Clause 4.2. It is argued that even according to the L & T, it has no experience, as required in Hydroelectric Projects because one of the projects shown as experience by the L & T was Gotipatiya Canal, which was an irrigation project. It is argued that the Expert Committee cannot change any condition of the bid document. The officers who interpreted the bid document differently should be taken to task. It is an instance of favouritism.

(ii) Rule 20 sub Rule (16) of the Uttarakhand Procurement Rules, 2016 ("the Procurement Rules") provides that, in case, single bid is received, it shall be cancelled and thereafter, fresh tenders shall be invited and if again single tender is received, it shall be analysed as per the provisions given under Rule 20 sub Rule 16 of the Procurement Rules. But, it has not been done in the instant case.

(iii) The CVC guidelines cannot override the Procurement Rules. Even otherwise, the CVC guidelines does not dictate that dehors of the Procurement Rules, single tender may be opened and work may be allotted. It is submitted that even the CVC Rules provides for modification of the guidelines, in case single tender is received.

(iv) The last date for submission of bid as per 17th extension was 09.11.2022. If the L & T had submitted its bid on 09.11.2022, why the bid was resubmitted It is not clear.

6. Learned Senior counsel for the petitioner would submit that the process is arbitrary and biased that warrants interference of the Court. The respondent should be required to place all the record before this Court for its scrutiny.

7. In support of his contentions, learned Senior counsel for the petitioner has placed reliance on the principles of law, as laid down in the cases of Bakshi Security and Personnel Services Private Limited Vs. Devkishan Computed Private Limited and others, (2016) 8 SCC 446, [LQ/SC/2016/951] W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and others (2001) 2 SCC 451, [LQ/SC/2001/142] Vidarbha Irrigation Development Corporation and others Vs. Anoj Kumar Agarwala and others, (2020) 17 SCC 577 [LQ/SC/2019/112 ;] and Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and others, (2000) 5 SCC 287 [LQ/SC/2000/930]

8. In the case of Bakshi Security (supra), the Hon'ble Supreme Court while dealing with conditions of a tender and its adherence, observed as hereunder:-

"14. The law is settled that an essential condition of a tender has to be strictly complied with. In Poddar Steel Corpn. v. Ganesh Engg. Works [Poddar Steel Corpn. v. Ganesh Engg. Works, (1991) 3 SCC 273] [LQ/SC/1991/271] this Court held as under: (SCC p. 276, para 6)

"6.... 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."

15. Similarly in B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd.,(2006) 11 SCC 548] [LQ/SC/2006/1018] this Court held as under: (SCC pp. 571-72, para 66)

"(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 with 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;..."

9. In the case of W.B. State Electricity Board (supra), the Hon'ble Supreme Court interpreted the terms of instructions to bidders and observed as hereunder:-

"24......... The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil prequalification alone are invited to bid, adherence to the instructions cannot be given a go-by by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules. We have, therefore, no hesitation in concluding that adherence to the ITB or rules is the best principle to be followed, which is also in the best public interest."

10. In the case of Vidarbha Irrigation (supra), the Hon'ble Supreme Court discussed the importance of the words used in the tender document and observed that those words cannot be ignored or treated as redundant or superfluous. The Hon'ble Supreme Court observed as hereunder:-

"16. 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."

11. In the case of Monarch Infrastructure (supra), the Hon'ble Supreme Court discussed the law of interference in the matter of tender process and observed as hereunder:-

"10. There have been several decisions rendered by this Court on the question of tender process, the award of contract and have evolved several principles in regard to the same. Ultimately what prevails with the courts in these matters is that while public interest is paramount there should be no arbitrariness in the matter of award of contract and all participants in the tender process should be treated alike. We may sum up the legal position thus:

(i) The Government is free to enter into any contract with citizens but the court may interfere where it acts arbitrarily or contrary to public interest.

(ii) The Government cannot arbitrarily choose any person it likes for entering into such a relationship or to discriminate between persons similarly situate.

(iii) It is open to the Government to reject even the highest bid at a tender where such rejection is not arbitrary or unreasonable or such rejection is in public interest for valid and good reasons.

11. Broadly stated, the courts would not interfere with the matter of administrative action or changes made therein, unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide.

12. If we bear these principles in mind, the High Court is justified in setting aside the award of contract in favour of Monarch Infrastructure (P) Ltd. because it had not fulfilled the conditions relating to clause 6(a) of the Tender Notice but the same was deleted subsequent to the last date of acceptance of the tenders. If that is so, the arguments advanced on behalf of Konark Infrastructure (P) Ltd. in regard to the allegation of mala fides of the Commissioner of the Municipal Corporation in showing special favour to Monarch Infrastructure (P) Ltd. or the other contentions raised in the High Court and reiterated before us are insignificant because the High Court had set aside the award made in favour of Monarch Infrastructure (P) Ltd. The only question therefore remaining is whether any contract should have been awarded in favour of Konark Infrastructure (P) Ltd. The High Court had taken the view that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had begun and, therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. Therefore, we find that the course adopted by the High Court in the circumstances is justified because by reason of deletion of a particular condition a wider net will be permissible and a larger participation or more attractive bids could be offered."

12. On the other hand, learned counsel appearing for the respondent no. 1, the UJVN Limited, would submit that the petitioner has no concern with the tender process. He did not participate in the process. It is not clear as to why and how he is before the Court. It is submitted that all the judgments which have been cited on behalf of the petitioner relates to such cases where there were competitive bidders and some deviation was done or arbitrariness was alleged. Learned counsel would submit that in the instant case, the respondents were not receiving any bid despite repeated extensions. It is submitted that the project is a huge project, which has twin objectives, i.e., (i) generation of electricity and (ii) water for irrigation, which may be beneficial to six states. It is submitted that, in fact, the project is funded by the Central Government and by, all the beneficiary States and others. The work could not be completed for a long. The tender in question was for completion of unfinished work. Public interest requires that it should be completed without delay. Learned counsel has raised the following points in his submissions:

(i) There has been no violation of any terms or conditions of the bid document.

(ii) Clause 4.2 of the bid document has been wrongly reflected by the petitioner.

(iii) Clause 4.2 of the bid document cannot be read into isolation. It has to be read with Clause 4.1, that requires the technical experience criteria. It is submitted that the construction of hydropower project or non-hydropower project involving components similar to hydropower projects, such as dams/barrages/tunnels/power houses etc. is one of the technical experiences. It is submitted that Form 8 is part of clause 4.2. It does not make any discrimination with regard to hydropower project, dams or other dams. Instead, it is argued, that Form 8 begins with "specific construction experience (for concrete dam completed works)". Learned counsel would submit that after bids were received, they were examined by the expert committee to ascertain as to whether the bidder is eligible for the bid. It is argued that as per Clause 28.3 of the bid document, it is the sole satisfaction of the employer, which is paramount. It is submitted that, the L & T is eligible. It has requisite experience.

(iv) In case single bid is received, as per CVC guidelines, the tender may not be cancelled, but, it has to be examined. Learned counsel has referred to the Procurement Rules to argue that Rule 71(4) of the Procurement Rules empowers the Finance Department to relax the Rules, in case of outside aided or special projects. It is argued that when single bid was received, the UJVN Limited sought Government's direction in the matter on 06.12.2022. The matter was taken up in Cabinet and on 27.12.2022, the UJVN Limited was informed that the tender submitted by single bidder may be opened. While referring to the communication dated 27.12.2022 of the Government of Uttarakhand, learned counsel for the respondent no. 1 UJVN Limited would submit that specifically the Procurement Rules were relaxed to that extent. It is argued that Rule 20 sub-Rule 16 of the Procurement Rules was relaxed in the instant case by the State Government as per Rule 71 sub-Rule 4 of the Procurement Rules. Therefore, it is argued that the petition on this count has no merits for acceptance.

(v) The last date for submission of bids, as per 17th extension was on 09.11.2022. On that date, the L & T had submitted online bid and provided hard copy of it on 10.11.2022. Thereafter, on 11.11.2022, 18th extension was granted and the date for submission of bids was extended till 21.11.2022. It is submitted that thereafter, the L & T resubmitted the bids, which can be done, in view of the guidelines issued by the Government of India for E-Procurement in Department/Organisation of Government of Uttarakhand. Reference has been made to Clause 15 of it.

13. Learned Chief Standing Counsel would submit that it appears that the petitioner has some oblique motives to file the instant petition. He did not participate in the bid. He is not connected, in any manner, with the project, which also helps in irrigation in the remote parts of the State of Uttarakhand. Learned counsel would submit that the tender process cannot be examined, in the manner, in which the petitioner wants it to be examined by this Court. In support of his contention, learned counsel has placed reliance on the principles of law, as laid down in the case of Esteem Properties Pvt. Ltd. Vs. Chetan Kamble and others, and Villianur Iyarkkai Padukappu Maiyam Vs. Union of India and others, (2009) 7 SCC 561 [LQ/SC/2009/1289 ;] and Michigan Rubber (India) Limited Vs. State of Karnataka and others, (2012) 8 SCC 216 [LQ/SC/2012/666] .

14. In the case of Esteem Properties (supra), the Hon'ble Supreme Court discussed the menace of frivolous and private interest which is ventilated through Public Interest Litigation. In Paragraphs 27 and 28, the Hon'ble Supreme Court observed as hereunder:-

"27. One of the measures this Court can adopt to ensure that frivolous or private interests are not masqueraded as genuine claims, is to be cautious when examining locus standi. Generally, PIL, being a summary jurisdiction, has limited powers to examine the bonafides of parties. It is usually on the pleadings that the Court should take a prima facie view on the bonafides of the party. If the Court concludes that the litigation was initiated under the shadow of reasonable suspicion, then the Court may decline to entertain the claims on merits. In these cases, Courts have multiple options - such as dismissing the PIL or appointing an amicus curiae, if the cause espoused in the case requires the immediate attention of the Court. [refer T.N. Godavarman Thirumulpad v. Union of India, (2006) 5 SCC 28]

28. In the case of Balwant Singh Chaufal (supra), this Court held as under:

"181. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:

(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.

(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.

(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."

15. In the case of Villianur (supra), the Hon'ble Supreme Court discussed the aspect of Public Interest Litigation as to under what matters it should be taken up. In Paragraphs 113 and 114, the Hon'ble Supreme Court observed as hereunder:-

"113. As far as second preliminary objection regarding locus standi of the appellant to challenge the award of the contract for the development of the Pondicherry Port to Respondent 11 is concerned, this Court finds that the contract assailed in the writ petitions is purely commercial in nature. Neither the parties, which had participated in the process of selection of the consultant/developer nor one of those, which had expressed desire to develop the Pondicherry Port but was not selected, has come forward to challenge the selection procedure adopted by the Government of Pondicherry or the selection of Respondent 11 as developer of the Pondicherry Port.

114. The question of locus standi in the matter of awarding the contract has been considered by this Court in BALCO Employees' Union v. Union of India (2002) 2 SCC 333] [LQ/SC/2001/2865] . This Court, after review of law on the point, has made following observations in para 88 of the judgment: (SCC p. 381)

"88. It will be seen that whenever the Court has interfered and given directions while entertaining PIL it has mainly been where there has been an element of violation of Article 21 or of human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to court due to some disadvantage. In those cases also it is the legal rights which are secured by the courts. We may, however, add that public interest litigation was not meant to be a weapon to challenge the financial or economic decisions which are taken by the Government in exercise of their administrative power. No doubt a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same in a court of law, but, a public interest litigation at the behest of a stranger ought not to be entertained. Such a litigation cannot per se be on behalf of the poor and the downtrodden, unless the court is satisfied that there has been violation of Article 21 and the persons adversely affected are unable to approach the court."

From the passage quoted above it is clear that the only ground on which a person can maintain a PIL is where there has been an element of violation of Article 21 or human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage."

16. In the case of Michigan Rubber (India) Limited (supra), the Hon'ble Supreme Court discussed the scope of Judicial Review on administrative actions and while referring to the earlier principles of law, as laid down by the Hon'ble Supreme Court in Paragraphs 21, 22, 23 and 24 observed as hereunder:-

"21. In Jagdish Mandal v. State of Orissa (2007) 14 SCC 517] [LQ/SC/2006/1265] the following conclusion is relevant: (SCC pp. 531-32, para 22)

"22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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 bona fide 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 blacklisting 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."

22. The same principles have been reiterated in a recent decision of this Court in Tejas Constructions & Infrastructure (P) Ltd. v. Municipal Council, Sendhwa (2012) 6 SCC 464] [LQ/SC/2012/432] ..

23. From the above decisions, 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 the 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 the 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 a fundamental right to carry on business with the Government.

24. 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" and

(ii) Whether the public interest is affected

If the answers to the above questions are in the negative, then there should be no interference under Article 226."

17. During the course of argument, the Court wanted to know from learned Senior counsel appearing for the petitioner as to what material is with the petitioner to assail the decision of the process adopted by the respondents, in the matter of the tender in question. Learned Senior Counsel would submit it is a writ of certiorari, therefore, the record should be called and examined.

18. At the very outset, the Court may like to note that the Court may not at the instance of any person, in any Public Interest Litigation, start enquiring the role of any public office without there being substantial material to question such action or process..

19. It has been argued on behalf of the State that the Public Interest Litigation ("PIL") Rules, as framed by this Court, requires that a PIL can be filed by public spirited persons, substantially on the basis of material in his possession. Reference has been made to Rule 2(g), which is as hereunder:-

"(g) "Public Spirited Person' means and includes, a person who has a genuine interest in the issue(s) being canvassed through a "PIL-Petition', and can substantiate on the basis of material in his possession, that he has been pursuing the subject matter involved with the concerned authorities; but shall not include a person pursuing a private interest litigation, or a publicity interest litigation, or a political interest litigation, in the guise of a 'PIL-Petition'." (emphasis supplied)

20. The scope of judicial review, in the matter of administration is not open for all reasons and all the time. The law has been well settled on this point. In the case of the Gohil Vishvaraj Hanubhai and others Vs. State of Gujarat and others, (2017) 13 SCC, Hon'ble Supreme Court discussed the principles of governing judicial review and held in Paragraphs 15 and 16 as hereunder:-

"15. The basic principles governing the judicial review of administrative action are too well settled. Two judgments which are frequently quoted in this regard are Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] and Council of Civil Service Unions v. Minister for the Civil Service [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)].

16. Lord Diplock in his celebrated opinion in Council of Civil Service Unions [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] summarised the principles as follows: (AC p. 410 D-H & 411 A-B)

"... Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality", the second "irrationality" and the third "procedural impropriety". That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

By "illegality", as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the Judges, by whom the judicial power of the State is exercisable.

By "irrationality" I mean what can by now be succinctly referred to as "Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)]). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that Judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow [Edwards (Inspector of Taxes) v. Bairstow, 1956 AC 14 : (1955) 3 WLR 410 (HL)] of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. "Irrationality" by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all."

It can be seen from the above extract, Lord Diplock identified three heads under which judicial review is undertaken i.e. illegality, irrationality and procedural impropriety. He also recognised the possibility of new heads such as "proportionality" being identified in future. He explained the concepts of the three already identified heads. He declared that the head "irrationality" is synonymous with "Wednesbury unreasonableness".

21. In fact, in the case of Tata Cellular Vs. Union of India, (1994) 6 SCC 651, [LQ/SC/1994/685] in Para 77, the Hon'ble Supreme Court observed as hereunder:-

"77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. Whether a decision-making authority exceeded its powers

2. Committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".

22. The petitioner is not an expert in the field of construction of dams. Some of the documents which have been filed, according to the petitioner were press reports and documents on public domain placed by the L & T. This is particularly with regard to the experience, as required under Clause 4.2 of the bid document. On behalf of the respondent no. 1, the UJVN Limited, reference has been made to clause 4.1 as well. Therefore, these Clauses are being reproduced as hereunder:-

"4.1 General Construction Experience: Bidder must have construction experience of having completed/substantially completed, under construction contracts in the role of prime contractor, JV member (Having share of more than 35% in the JV) for the least the last 10 financial years, starting 1st April 2010 whose aggregate value must not be less than Rs. 3000 Crores (Rupees Three thousand crores).

Construction of Hydro Power projects or non-hydro power projects involving construction of components similar to hydro power projects such as Dams/barrages/tunnels/power houses etc. either as Development cum Contractor or Contractor, must not be less than Rupees 2000 Crores (Rupees Two Thousand Crores) with one hydro power project or similar non hydro power project work not less than Rs. 300 Crores (Rupees Three Hundred crores) during the last ten years, starting from 01st April 2010.

The bidder(s) should also specify the year when such works were completed including the monetary value, and while moderating the value an escalation factor of 5% per year shall be applied to arrive at the intrinsic present value of work for the purpose of determining minimum, cut off value.

Financial Year has been considered from April to March. Bidders whose financial year closure falls in the month other than March, may submit all relevant data for the last 10 years financial years. (Details are to be furnish as per Qualification form 7 of Section-IV Bid and Qualification Form Appendix-B).

4.2 Specific Construction Experience (for Dam)

A minimum number of similar contracts in Hydro Electric Projects specified below that have been satisfactorily completed as a prime contractor, Joint Venture Member (Having share of more than 35% in the JV) during the preceding 20 years from the date of bid and must have achieved an average concrete placement rate of 20,000 Cum per month continuously for six months and peak concrete placement rate of 30,000 cum/month continuously for three months. (Details are to be furnish as per Qualification form 8 of Section-IV Bid and Qualification Form Appendix-B).

Either:

(i) Completion of one concrete dam (gravity/arch/RCC) dam with a minimum dam height of 140 m above the deepest foundation level.

(ii) Construction of two numbers concrete dams (gravity/arch/RCC) with a minimum height of 80m above the deepest foundation level out of which one project completed and another one substantially completed.

Note 1: Substantially completion shall be based on 90% or more work (physically and financially) related to concrete dam completed under the contract. (Details are to be furnished as per Qualification form 9 of Section-IV Bid and Qualification Form Appendix-B)."

23. On behalf of the respondent no. 1 the UJVN Limited, reference has also been made to Clause 28.3 of the bid document, which is as hereunder:-

"28.3 The Employer shall determine to its satisfaction during the evaluation of Techno-commercial bids as to whether bidders meet the qualifying criteria specified in Appendix-A of Section III (Qualification information), Appendix-B of Section IV (Bid and Qualification Forms), Section XI (Bidding Data Sheets) and as well as other criteria of the Bid. The submission of Bidder's Appreciation Report is also mandatory."

24. A bare perusal of Clause 28.3 of the bid document reveals that, in fact, the employer has to determine its satisfaction with regard to qualifying criteria.

25. Clause 4.1 speaks of general construction experience. The initial lines of second paragraph are really very important. It speaks of construction of hydropower projects or non hydropower projects involving the components similar to hydropower projects such as dams/barrage/tunnels/power houses etc.

26. Learned counsel for the respondent No. 1, the UJVN Limited would submit that, the project is a hydroelectric project for irrigation also. What was to be seen is the similarity in its components. Therefore, it is argued that the qualification under Form 8 does not speak of hydroelectric power dams. It speaks of specific construction experience (for concrete dam completed works). Reference has been made to various heads of it, including at SL. Nos. 20, 21, and 22. It speaks of earlier experiences. It is argued that, in fact, the project is for electricity generation and irrigation purposes also. The L & T qualifies the eligibility criteria. It is submitted that the qualification under Form 8, which was filed by the L & T has been examined by the expert committee and they have found that the L & T qualifies the eligibility criteria.

27. Biding document defines the experience required for the project and other qualification. Clause 4.1 is with regard to General Construction Experience. First paragraph of this clause 4.1 speaks of the requirement of construction experience and paragraph two of the Clause 4.1 is important for the instant purpose. According to it, construction may be that of Hydro Power Projects or Non Hydro Power Projects involving "construction of similar components", the details of General Construction Experience is to be submitted in the Qualification Form 7. This form requires submission of document with regard to hydro power project as well as non-hydro power project. It simply means construction of dams for non hydro power project also has bearing. And paragraph 2 of Clause 4.1 defines the extent of experience in non hydro power project. It is to the extent it "involves construction of components similar to hydro power projects". Clause 4.2 of the biding document makes reference to Qualification Form 8. It is not confined to hydro power project dams. As such, it relates to "Specific Construction Experience (for Concrete Dam Completed Works"),

28. According to Clause 28.3 included to bidder document, the employer may determine to its satisfaction the eligibility criteria of a bidder. It is being argued on behalf of the respondent no. 1, the UJVMN Limited that based on the instruction given in the bid document, the expert committee has found that the L & T meets eligibility criteria. This Court cannot doubt this procedure and the satisfaction arrived at by the respondent no. 1, the UJVN Ltd. Therefore, the argument that the L & T does not meet the eligibility criteria has no merit for acceptance.

29. On behalf of the petitioner, it is argued that, in fact, the qualification under Form 8, column E has not been filled up by the L & T, therefore, it is an incomplete form. This argument has less merit for acceptance.

30. It is a categorical assertion on behalf of the respondents that after 16th Extension, at the closure of 17th Extension, on 09.11.2022, the L & T submitted its bid. Two days thereafter, another extension, according to the respondents was given, but no other bidder submitted its bid. It is being argued that since extension was further granted, t, the L & T resubmitted its bid, which is permissible, in view of Clause 15 of the guidelines issued by the Government of Uttarakhand. It is as hereunder:-

"15. RESUBMISSION AND WITHDRAWAL OF BIDS:

a. Resubmission of bid by the bidders for any number of times before the final date and time of submission is allowed.

...................................................................................

.............................................................................."

31. On behalf of the petitioner, it is argued that, it is beyond comprehension as to why the L & T would resubmit the bid.

32. This Court cannot speculate as to why the L & T resubmitted its bid. It is the categorical case of the respondent that the L & T resubmitted its bid, which is permissible, as per guidelines. It cannot be doubted merely because the petitioner says that it should be doubted. Therefore, the arguments, which have been advanced on this count has less force to stand.

33. An argument has been raised with regard to the violation of the Rules when single bid is offered. On behalf of the petitioner reference has been made to Rule 20 sub Rule (16) of the Procurement Rules to argue that according to it, in case, single bid is received it has to be cancelled and fresh tender is to be invited.

34. On behalf of the respondent no. 1, the UJVN Limited, it is argued that there has been no defiance with the Procurement Rules or CVC guidelines.

35. It is true that Rule 20 sub-Rule (16) of the Procurement Rules, inter alia, provides that in case single bid is received, it shall be cancelled and fresh tender shall be invited. This sub-Rule further provides that if even after such fresh tender, a single bid is received, it shall be examined subject to the condition as laid down in sub-Rule (16) of Rule 20 of the Procurement Rules. But, Rule 71 of the Procurement Rules is an explanation. Sub-Rule 4 of Rule 71 of the Procurement Rules, provides that the Finance Department, under special circumstances and in outside aided/special project, may give relaxation to the Rules.

36. It has been argued on behalf of the respondent no. 2 that, in fact, when single bid was received, the UJVN Limited sought directions from the Government and the Government on 27.12.2022 relaxed the condition of the Procurement Rules with regard to the single bid and directed the opening of single bid. A communication dated 27.12.2022 of the Secretary Government of Uttarakhand has been tendered at the time of hearing of the case. The Procurement Rules provide for relaxation, that is what has been done in the instant case. Therefore, merely because single bid is received and it has been acted upon, it cannot be said that the procedure has not been followed.

37. In view of the foregoing discussion, this Court is of the view that there is no merit in this petition. Accordingly, it deserves to be dismissed at the stage of admission itself.

38. The petition is dismissed in limine.