ARAVIND KUMAR, C.J.

1. Since both these petitions are related to same tender process to be carried out by virtue of E-Tender Notice No.14 of 2021-22 (Tender ID No.502430) floated by the respondent-authority, and since the request is made by the learned advocates to hear and dispose of both these petitions conjointly, we deem it proper to consider the request, and accordingly, both these petitions are taken up for hearing and being disposed of by this common order.

2. Since the Special Civil Application No.14857 of 2022 is filed not only first in point of time but is a matter pertaining to the grievance about non-consideration of tender of the petitioner, we deem it proper to treat this petition as the lead matter and the facts, for the sake of convenience, are taken from the said petition.

3. Subsequent petition, i.e., Special Civil Application No.19459 of 2022 is filed by the concerned petitioner seeking direction to the respondent-authority to proceed further with the E-Tender Notice No.14 of 2021-22 (Tender ID No.502430), hence we deem it proper to deal with the lead petition at the first instance.

4. The background of facts which has given rise to filing of aforesaid lead petition is that the petitioner is a joint venture entity incorporated for the purpose of bidding E-Tender Notice No.14 of 2021-22 (Tender ID No.502430) floated by the respondent authority, namely, Narmada Water Resources, Water Supply and Kalpsar Division, Government of Gujarat for desilting of river Tapi in upstream of Singanpore weir (hereinafter referred to as “impugned tender”). The said joint venture agreement stated to have been executed on 08.04.2022 between M/s. Siddhi Vinayak Knots & Prints Pvt. Ltd. and Mr. Alpeshkumar Babulal Panchal.

5. It is the case of the petitioner that on 21.01.2022, the respondent No.2-authority invited bids as indicated above for tender in question and the process of such tender was being done through N-procure (a tender management portal for Government of Gujarat). The lead member of the petitioner joint venture, i.e,. JV-M/s. Siddhi Vinayak Knots & Prints Pvt. Ltd. is a registered entity on the said portal. The last date for submission of bid was fixed as 14.01.2022 and for tendering documents in physical, a date was prescribed as 19.02.2022. According to the petitioner, the technical bids pertaining to the impugned tender were to be opened on 21.02.2022.

6. The case of the petitioner is that eligibility criteria is prescribed in the tender notice in Clause-III which essentially require following particulars. The chart related to it quoted in the petition is reproduced hereunder;

7. The case of the petitioner is that eligibility criteria in the original tender document has permitted bidders to hire the required machinery by submitting the MOU agreement pertaining to hired machinery along with the bid agreement, and the criteria for machinery is relevant for the adjudication of the present dispute and the said particulars related to machinery were required to be submitted in Form No.C.

8. It is the case of the petitioner that once the bidder fulfills the aforesaid criteria related to technical bid, the said bidders are eligible for price bidding and the validity period of the said tender was fixed as 120 days from the date of opening of preliminary bid of the impugned tender.

9. The further case of the petitioner is to the effect that in the present tender, several Corrigendums came to be issued by the respondent State authority. The first Corrigendum was issued on 31.03.2022 in the form of Corrigendum No.7 whereby the requirement of submitting MOU for hiring of the machinery was substituted with the requirement of submitting the proof of ownership of the required machinery. The said Corrigendum is attached by the petitioner vide Annexure-P5. On account of the said subsequent change, even a Revised Schedule was updated vide Corrigendum No.8 in the said tender and the last date of submission of technical bid was extended upto 11.04.2022 and the opening of the preliminary qualification bid was fixed as 20.04.2022. In view of such, the petitioner submitted its bid on 11.04.2022 along with other six bidders as mentioned in paragraph-3.6 of the petition. The petitioner, stated to be fulfilling the eligibility criteria as well as financial criteria fixed under the tender; had supplied all the relevant documents along with the bid; and, according to petitioner, tender was submitted as required in Form No.C. Since tender process was being carried out on N-procure portal, the tender documents of each of the bidders was accessible to every bidder who was registered on the said portal.

10. The successful bidder, i.e., the respondent No.4 herein, namely, Rachana Construction Co. and the petitioners of cognate petition, submitted an offer letter dated 14.03.2022 from the seller, offering a weed cutter/harvester having valued at Rs.45,75,000/- and has also submitted a letter dated 09.04.2022 from the seller of machine acknowledging receipt of the cheque which was amounting to Rs.4,75,500/- and further neither there was any invoice generated to the said effect nor any agreement to sell for the said machinery, and as such, according to the petitioner of the lead petition, the said respondent No.4, who found to be successful bidder by the authority though has clearly violated the terms of the contract and not fulfilling the eligibility criteria. According to the petitioner, the other bidder, namely, Ocean Sparkle Ltd., who only produced a valuation report of weed cutter/harvester, still made qualified in technical bid. Same is the case with Navayuga Engineering Co. Ltd. who also executed a mere agreement to sell and has not submitted any ownership proof regarding the weed cutter/harvester, still the authorities have accepted them and approved them as qualified in technical bid, whereas the technical bid presented by the petitioner as well as Godavari Commodities Ltd. and Shiwalaya Infra Projects Pvt. Ltd. have been rejected. The price bids of Navayuga Engineering Co. Ltd., Thorns Infrastructure Pvt. Ltd. and Ocean Sparkle Ltd. were Rs.05/-, Rs.10/- and Rs.02/- per M.T. respectively, whereas the respondent No.4 who was the highest successful bidder quoted a price of Rs.251/- per M.T. According to the petitioner, in view of such quoted price variation, there would be a substantial difference and there would be a direct loss of Rs.150 Crores to the authority since there is a huge difference between the price quoted by respondent No.4 and the price quoted by the present petitioner. By narrating such figures in Para-3.12, an assertion is made by the petitioner that there would be a substantial loss to the State Exchequer.

11. The grievance of the petitioner is that despite aforesaid sizable difference and the irregularities in submission of various documents as indicated above, the petitioner merely received an e-mail from N-procure on 11.07.2022, whereby petitioner was informed that it is not qualified at the preliminary stage itself and no other reasons are assigned for declaring as disqualified. The petitioner since was having a serious apprehension that respondent No.4, who found to be a successful bidder, would back out from the tender process and will not come forward to execute the contract and the Thorns Infrastructure Pvt. Ltd., who is the next bidder to respondent No.4 (H2 bidder) will get the tender at a trivial price of Rs.10/- per M.T., i.e. around Rs.9 Crores, as a result of which, on 18.07.2022, the petitioner made a representation to the authority, inter alia, requesting and demanding reasons for rejection of preliminary bid in the impugned tender, but as indicated, no response has been given which has constrained the petitioner to approach this Court by way of present petition under Article 226 of the Constitution of India for the reliefs which are set out in Para-10, which reads thus;

“(A) To pass appropriate direction, order or writ declaring that the action of the respondent state authorities in rejecting/disqualifying the bid of the petitioner in the E-Tender Notice 14 of 2021/2022 (Tender ID-502430) issued by Narmada Water Resources Water Supply & Kalpsar Division, Govt. of Gujarat for desilting of River Tapi in upstream of Siganpore weir at preliminary stage/technical bid stage, without assigning any reasons as manifestly arbitrary, without following due process of law, violative of principles of natural justice and hence violative of Articles 14, 19(1)(g) & 21 of Constitution of India;

(B) To pass appropriate direction, order or writ quashing and setting aside the action of respondent state authority in cancelling the bid of the petitioner in the E-Tender Notice 14 of 2021/2022 (Tender ID-502430) issued by Narmada Water Resources Water Supply & Kalpsar Division, Govt. of Gujarat for desilting of River Tapi in upstream of Siganpore weir at preliminary stage/technical bid stage, and further quash and set aside the communication email dated 11.07.2022 received by the petitioner from N-procure informing the petitioner about rejection of the bid at preliminary stage.

(C ) To pass appropriate order, direction and/or writ directing the respondent state authorities to grant/award the tender being E-Tender Notice 14 of 2021/2022 (Tender ID-502430) issued by Narmada Water Resources Water Supply & Kalpsar Division, Govt. of Gujarat for desilting of River Tapi in upstream of Siganpore weir.

(D) Be pleased to pass appropriate direction, order or writ to quash and set aside, the acceptance of commercial bid of respondent no.4 in E-Tender Notice 14 of 2021/2022 (Tender ID502430) issued by Narmada Water Resources Water Supply & Kalpsar Division, Govt. of Gujarat for desilting of River Tapi in upstream of Siganpore weir as being contrary to law, arbitrary and based on extraneous considerations and hence violating Article 14, 19 & 21 of the Constitution of India.

(E) Pending admission and final hearing of the present petition, be pleased to restrain the respondent state authorities from granting/awarding of the tender being E-Tender Notice 14 of 2021/2022 (Tender ID-502430) issued by Narmada Water Resources Water Supply & Kalpsar Division, Govt. of Gujarat for desilting of River Tapi in upstream of Siganpore weir, to the respondent no.4 or his agents, servants or authorized persons or to any other entity, and restraining from executing a contract pursuant to the acceptance of bid of respondent no.4.

(F) Be pleased to pass any such other and further order which this Hon’ble Court may deem fit and appropriate in the interest of justice and equity.”

12. The cognate petition being Special Civil Application No.19459 of 2022 is filed by M/s. Rachana Construction Co. on the premise that under the guise of pendency of the lead petition, i.e., Special Civil Application No.14857 of 2022, the authority will desist from processing further. As per Condition No.25 of Special Condition No.II of Section 5 of the Tender Notice, an agency is required to start the work within 30 days after issuance of work order and if the agency does not commence the work within aforesaid period, the security deposit will be forfeited and the work will be awarded to another agency if found appropriate. In view of the terms and conditions, six machines are already procured along with a second partner for the project and the capital cost of one Dredger Machine is approximately Rs.14 Lakh, and as such, five machines would be of around Rs.70 Lakhs which is a very huge amount. On account of pendency of the lead matter, if the work is not allowed to be commenced, there will serious prejudice, and as such, petitioner and its partner are going to incur a huge financial loss on each day’s delay since the letter of award and work was not issued under the guise of aforementioned pendency of the lead matter, and as such, for the purpose of seeking direction to the respondent authority to proceed further in connection with E-Tender Notice No.14 of 2021-22 (Tender ID-502430), a petition is brought by invoking Article 226 of the Constitution. The reliefs sought for are set out in Paragraph-9 of the said petition.

13. With the aforesaid background of facts of both the petitions and upon request of learned advocates appearing on behalf of both the sides, we took up the hearing of present petitions and heard the matters at length, namely, Mr. Dhaval Dave, learned senior counsel appearing for the petitioner in the lead matter, learned advocate Mr. Bhaumik Dholariya appearing for the petitioner in the cognate petition and Mr. K.M. Antani, learned AGP appearing on behalf of the respondent-authority in both petitions.

14. Mr. Dhaval Dave, learned senior counsel appearing on behalf of the petitioner in the lead petition has vehemently contended that entire exercise of tender in question undertaken by the authority is suffering from material irregularity and petitioner has not been informed about the reasons as to why their bid is rejected or is disqualified for the tender in question, and as such, the decision of rejection of the bid of the petitioner is absolutely unjust, arbitrary and irrational and also is violative of well recognized principles of natural justice. Hence, reliefs prayed for deserves to be granted.

15. It has been contended that action of the respondent authority is in conflict with public interest since there would be a huge financial loss to the State Exchequer, and as such, action on the part of the authority from the initial stage of technical bid itself amounts to an arbitrary act and decision making process is nothing but reflects a colourable exercise of power. It has been further contended that though respondent No.4 who is stated to be a successful bidder is also not fulfilling the eligibility criteria if to be looked into since has merely produced an offer letter which cannot be termed as a proof of ownership of machinery by any stretch of imagination, and this conveniently has been ignored by the authority.

16. The learned senior counsel has further submitted that a successful bidder, i.e, respondent No.4 has submitted a price of Rs.251/- per M.T. as against the bid of petitioner to an extent of Rs.415/- per M.T and the quantity requirement of tender is for 90,00,000/- M.T.. Therefore, the total amount offered by the respondent No.4 comes to Rs.225/- Crores whereas the bid which has been presented by the petitioner, if to be calculated, comes to Rs.373/- Crores, and as such, apparently the State Exchequer would be at a loss of Rs.150/- Crores, and as such, the rejection of the petitioner’s bid is not at all in the public interest as well. The learned senior counsel has further submitted that a proper perusal of material clearly indicates that eligibility criteria of petitioner is on par with the respondent No.4 as well as other bidders who have been qualified in the technical bid stage, and as such, the rejection of petitioner’s bid is a clear example of malafide exercise of power. A systematic attempt is made in the process of tender just with a view to see that respondent No.4 may get the tender work and, therefore, the entire exercise undertaken is unfair, not in consonance with the principles of fair play in action. Hence, in view of such situation, the Hon’ble Court‘s intervention is desirable and, hence, requested to examine the same and grant the reliefs as prayed for in the petition. To substantiate his submission, the learned senior counsel Mr. Dhaval Dave has referred to following decisions, which we may deal with at an appropriate stage in the present order.

“(i) In the case of Sumesh Engineers Pvt. Ltd. vs. MGVCL, Special Civil Application No.6533 of 2022;

(ii) In the case of Uflex vs. Govt. of Tamilnadu, 2022 (1) SCC 165 [LQ/SC/2021/3025 ;] ">2022 (1) SCC 165 [LQ/SC/2021/3025 ;] [LQ/SC/2021/3025 ;] ;

(iii) In the case of Afcons Infrastructure Pvt. Ltd. vs. Nagpur Metro Rail Corporation, 2016 (16) SCC 818 [LQ/SC/2016/1201] ;

(iv) In the case of Bharat Coking Coal vs. Amr Dev Prabha, 2020 (16) SCC 757;

(v) In the case of PKF Shridhar & Santhanam vs. Airports Economic Regulatory Authority of India, Writ Petition (C ) No.12385 of 2021;

(vi) In the case of Reliance Energy Ltd. vs. MSRDC, 2007 (8) SCC 1 [LQ/SC/2007/1094] ;

(vii) In the case of Ravi Industries vs. Gujarat Rural Industries Marketing Corporation, Special Civil Application No.6886 of 2019.

17. By referring to the above said decisions, a contention is reiterated that looking to the chronology of events which are set out in the petition along with the documentary material, the Court may exercise the judicial review by entertaining the petition. Hence, he has requested to allow the petition in terms of reliefs which are set out in the petition. No other submissions have been made.

18. As against this, the learned advocate Mr. Bhaumik Dholariya appearing on behalf of the petitioner in the cognate petition has vehemently opposed this lead petition by contending that there is a huge investment made by the petitioner in respect of the tender in question and on account of pendency of this petition, the authority is not proceeding ahead which has seriously prejudiced not only the case of the petitioner but also causing everyday huge financial loss, and as such, the learned advocate Mr. Bhaumik Dholariya has submitted that since the decision making process is well within the frame work of eligibility criteria and the decision is essentially in the domain of the tender inviting authority, the Hon’ble Court may not exercise extraordinary equitable jurisdiction since the facts are also not possible to be examined at length. Hence, he has requested to dismiss the lead petition, and consequently grant the reliefs as prayed for in the cognate petition.

19. Mr. K.M. Antani, the learned AGP appearing on behalf of the contesting tender inviting authority has vehemently opposed the lead petition by contending that there is neither any irregularity nor any malafide of any nature in taking decision against the petitioner of the lead petition, and said petition is based upon vague and inadequate particulars, and petitioner should not be allowed to invoke extraordinary jurisdiction. By drawing the attention of the Court to the affidavit-in-reply which has been filed, the learned AGP has submitted that upon detailed evaluation of eligibility criteria possessed by the bidders, a conscious decision is taken, and petitioner was not falling within the same, the authority has rejected the bid. In fact, petitioner was intimated of its non-selection at a preliminary stage of evaluation of its tender and bidders were also intimated to login for viewing further details regarding non-selection, and as such, it is ill-founded on the part of the petitioner to contend that petitioner was unaware about such rejection and the reasons for the same. The said reasons were very much available after the declaration of non-selection and the copy of snapshot of the screen taken on 11.07.2022 is also appended with the affidavit dated 23.08.2022.

20. It has further been contended that right from the beginning, petitioner was aware about the tender process in its entirety and petitioner though was under an obligation to make available his mobile number, has not indicated for reasons best known to him, but nonetheless, petitioner was made known about his rejection on the basis of his own material which would reflect from the login activity of 02.08.2022 of the petitioner. In fact, upon such login by the petitioner, it came to know about the reasons in detail and there was an evidence of petitioner having visited the portal after being intimated of rejection, and as such, according to Mr. Antani, a systematic attempt is made to suppress the material fact and thereby mislead the Court. Hence, the stand of the petitioner deserves to be deprecated. On the contrary, by referring to Page-28, which is an excerpt of the email received by the petitioner, instructing the petitioner to login for viewing further details with respect to its rejection, Mr. Antani contended that it is not correct on the part of petitioner to contend that petitioner was not aware about its rejection. In fact, bid came to be rejected on account of non-fulfillment of two eligibility criterias, namely, petitioner was not a registered joint venture as projected by the petitioner and further petitioner did not submit any proof of ownership of machinery with the bid submission which was an obligation on the part of petitioner, and said criteria having not been fulfilled, it cannot be said that authority was not justified in rejecting the bid of the petitioner.

21. Insofar as the stand about discrimination part is concerned, Mr. Antani, the learned AGP, has contended that so far as Rachana Construction Co., i.e, the respondent No.4 is concerned, same has been identified itself through contemporaneous documents about the firm, and for the purpose of establishing that it is registered entity, the registration certificate in this regard was presented along with bid document and further in respect of proof of ownership in connection with the machines owned by JV of respondent No.4, the registration certificate of such machines have been submitted, and as such, on the basis of aforesaid documents which have been submitted by respondent No.4, the authority found that said firm is clearly falling within the eligibility criteria and, therefore, neither there is any discrimination nor any arbitrariness of any nature which reflects in the decision making process against the petitioner. Hence, learned AGP has submitted that attempt to mislead deserves to be deprecated.

22. To strengthen his submission, learned AGP Mr. Antani has further submitted from Annexure-R1 reflecting on Page-291 indicating that bid is tendered by Siddhi Vinayak Knots & Prints Pvt. Ltd. and not by the petitioner as can be clearly seen from the said document. Further by referring to Page-293 of the petition compilation, vide Annexure-P1, it has been clearly informed about the rejection at the preliminary stage evaluation and it has been clearly projected also to login on a site to view more details, and as such, it is not proper on the part of the petitioner to misdirect the Hon’ble Court. For the purpose of substantiating the stand of the authority, a reference is made to Page-332, Annexure-R6 as well as joint bidding document reflecting on Page-334 and further the registration certificate reflecting on Page-338 has also been brought to the notice of the Hon’ble Court to contend that rejection is not on account of any malafides or on account of any discrimination. In fact, the ownership of machinery is also not properly established as can be found from the relevant pages attached to the affidavit-in-reply. In fact, learned AGP has submitted from Page-378 onwards, the documents which are being relied upon with respect to ownership are not found sufficient enough to indicate that bid can be accepted and no negative equality can be claimed by the petitioner since its bid has not been accepted. Conjoint effect of circumstances which are prevailing on record, the learned AGP has contended that no case is made out by the petitioner calling for any interference, more particularly, when assertion which has been made is not establishing any case on merit. The comparison which is tried to be made out by the petitioner with respect to other entities is of no assistance to the petitioner simply because petitioner itself has not been in a position to establish its right to seek the tender as a matter of right.

23. As against this, in rejoinder, the learned senior counsel Mr. Dhaval Dave appearing for the petitioner has contended that action of rejection on the part of the authority is without any justifiable reason and the decision making process is not reflecting any reason, and as such, he has reiterated his stand as canvassed in the petition. Mr. Dave has submitted that apart from the fact that rejection is unreasoned, but a perusal of comparison of other firms/entities also would clearly indicate that whatever reasons which are assigned are even if treated as reasons, cannot be said to be a valid reason and, hence, prayer made in the petition deserves to be granted. On the basis of such submission made by the learned senior counsel, a contention is raised that authorities are required to be estopped from proceeding ahead with Tender Notice No.14 of 2021-22 (Tender ID-502430) and thereby to direct not to allot or issue work order in favour of respondent No.4. Hence, he has requested to allow the petition.

24. Having heard the learned advocates appearing for the parties and having gone through the material on record and before arriving at a conclusion, few circumstances deserve consideration. First of all, a bare perusal of the communication with regard to rejection of the bid at the preliminary evaluation stage appears to have been communicated and it has been made clear and informed the bidders to login to view more details. Pages-325 and 326 of the petition compilation are again indicating in the remarks column that petitioner, i.e, JV of M/s. Siddhi Vinayak Knots & Prints Pvt. Ltd. is not fulfilling the eligibility criteria and Joint Venture bidder has not submitted the relevant particulars. Even Joint Venture bidder has not submitted registration certificate of JV member, and as such, it has been indicated that joint venture bidder does not fulfill the prescribed criteria of even machinery. Hence, it is not proper on the part of petitioner to contend that petitioner is not aware about anything about rejection of its bid.

25. Further, eligibility criteria which has been postulated in the tender notice, which we have already reproduced hereinabove at Paragraph-6 of this judgment, reflects various particulars which the bidder is supposed to have. Though petitioner is contending that it fulfills the eligibility criteria, but tender inviting authority, upon critical analysis of documents submitted by the petitioner, found the situation other way round which appears to be clearly in consonance with the terms of the tender notice. Hence, we are not inclined either to substitute our views or to enter into the zone or domain of the tender inviting authority to take a particular decision of its own requirement as stipulated. Hence, we are not inclined to exercise our extraordinary jurisdiction to evaluate the view taken by tender inviting authority which is exclusive domain of it unless it is so arbitrary or so irrational. We are satisfied that there is neither any arbitrariness nor any irrationality in such decision making process. Hence, petitioner has not made out any case calling for our interference.

26. Additionally, it has also been found that the reasons which are assigned for rejection are on the basis that it was not a registered joint venture as claimed and did not submit the proof of ownership of machinery with the bid submission. If petitioner has not submitted along with the bid the requirement which is clearly stipulated, then no fault can be found with the tender inviting authority which has arrived at a decision on the basis of material which is made available by bidders. Hence, no grievance can be raised. In addition to it, a stand is taken about discrimination which is also not found to be justified in view of the clear stand stated in affidavit-in-reply filed by the authority on Page-287 at Parasgraphs-6.2 and 6.3. The said stand is also well supported by the documents attached to the affidavit-in-reply which is affirmed on 23.08.2022. In view of this clear stand of respondenttender inviting authority also, we are of the opinion that decision taken by the respondent-authority cannot be said to be discriminatory in any manner and since we have considered the stand of the authority, we deem it proper to quote hereunder the said stand taken by the authority as stated in Paragraphs-6.2, 6.3 and 6.4 of the affidavit. The same reads thus;

“6.2 With respect to the very same eligibility criteria’s the Respondent no.4 has been evaluated to have fulfilled the same. Such evaluation is based upon consideration of the documents submitted by the Respondent no.4.

6.3 At this stage, it may be known that whilst the petitioner has named the respondent No.4 as Rachna Construction Company, the same has identified itself through contemporous documents as Rachna Construction Co.

For the purposes of establishing that the Joint Venture (JV) of Respondent no.4 is a registered entity its certification of incorporation was presented, a copy whereof is annexed herewith and marked as Annexure-R9.

So far as proof of ownership with respect to the machines owned by the JV of Respondent no.4 is concerned, registration certification of such machines have been submitted by the JV of Respondent no.4 which are annexed herewith and marked as Annexure-R10.

6.4 A clear consideration of the aforestated documents would indicate that Respondent no.4 has fulfilled all the requisite eligibility criteria’s and particularly those where the petitioner has failed.”

27. From the aforesaid particulars and in view of the material placed before us, we are not satisfied with the stand of the petitioner that authority has taken decision either in haste or with malafides or in any irrational manner. It is exclusively open for the tender inviting authority to insist for eligibility criteria which is prescribed and if that is not fulfilled by the petitioner in view of authority, we are satisfied that in the absence of any distinguishable material, Writ Court cannot be utilised as a leaver to substitute the view. Hence, the petition found to be merit less, we deem it proper not to entertain the same.

28. At this stage, the issue of judicial review in contractual matters which is well settled by the Hon’ble Apex Court in catena of decisions and the recent trend propounded by the Hon’ble Apex Court can be noted with benefit. We deem it proper to refer to certain observations from the decisions taken in the recent past. We deem it proper to quote hereunder.

29. In a recent decision delivered by the Hon’ble Apex Court in the case of N.G. Products Limited. vs. Vinod Kumar Jain & Ors., reported in 2022 (6) SCC 127, [LQ/SC/2022/380 ;] ">2022 (6) SCC 127, [LQ/SC/2022/380 ;] [LQ/SC/2022/380 ;] the Hon’ble Apex Court has held in paragraphs-12, 13, 22, 23 and 26 as under;

“12. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr.5, this Court held 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. It was held as under:

“13. In other words, 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.

xx xx xx

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.”

13. This Court sounded a word of caution in another judgment reported as Silppi Constructions Contractors v. Union of India and Ors., (2020) 16 SCC 489, [LQ/SC/2019/934] wherein it was held that the Courts must realize their limitations and the havoc which needless interference in commercial matters could 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 would cause unnecessary loss to the public exchequer. It was held 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 realize 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 realize 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.” (Emphasis supplied)”

22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bonafide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.

23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.

26. A word of caution ought to be mentioned herein that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good. The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.”

30. Additionally, in yet another decision of the Hon’ble Apex Court in the case of Silppi Constructions Contractors vs. Union of India & Anr., reported in 2020 (16) SCC 489, [LQ/SC/2019/934] the scope of judicial review has been elaborately considered by the Hon’ble Apex Court, and as such, relevant observations as contained in various paragraphs can be noted with benefit;

“6. Aggrieved, the original writ petitioner is before us in these petitions. This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved.

11. In Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd.,(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 decision making process. By way of judicial review, Court cannot examine details of terms of contract which have been entered into by public bodies or State.

12. In B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd., (2006) 11 SCC 548, [LQ/SC/2006/1018] it was held that it is not always necessary that a contract be awarded to the lowest tenderer and it must be kept in mind that the employer is the best judge therefor; the same ordinarily being within its domain. Therefore, the court's interference in such matters should be minimal. The High Court's jurisdiction in such matters being limited, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record.

13. In Jagdish Mandal vs. State of Orissa, (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.”

14. In Michigan Rubber (India) Ltd. vs. State of Karnataka & Ors., (2012) 8 SCC 216, [LQ/SC/2012/666] it was held that if State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, interference by Court would be very restrictive since no person could claim fundamental right to carry on business with the Government. Therefore, the Courts would not normally interfere in policy decisions and in matters challenging award of contract by State or public authorities.

15. In Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd., 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.

18. Most recently this Court in Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others., (2019) 14 SCC 81, [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.

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.”

31. The conjoint effect of the aforesaid proposition of law and in view of the analysis of the material on record in the context of submission made by both the learned advocates appearing for the respective sides, we are of the clear opinion that petitioner has not made out any case on merit which would call for our interference, more particularly, in exercise of extraordinary jurisdiction. Since the decision making process is not irregular in any nature, we are of the opinion that lead petition do not deserve to be entertained. Further in the peculiar background of facts which are stated herein before and in view of the recent proposition of law propounded by the Hon’ble Apex Court on the issue related to tender process and its interference by the Court, we are of the clear opinion that judgments which have been cited by the learned counsel appearing for the petitioner are of no assistance to the petitioner. Since the facts are also quite distinct and in the latest pronouncements, as indicated above, it has been elaborately made clear by the Hon’ble Apex Court that interference is limited, we deem it proper not to consider the stand of the petitioner.

32. In respect of cognate petition which has been attached herewith, since said petition was only with respect to directing the authority to proceed ahead with the process of tender in question and even the learned advocate appearing for the petitioner has not canvassed the submissions with full vigor in view of the fact that the lead petition has been exhaustively heard and his fate is depending upon the outcome of the lead petition, we make it clear that it would be independently open for tender inviting authority to proceed ahead with the tender in question looking at the urgency or the need which may be felt by the authority, and as said further by the respondent authority that tender process will be carried out strictly in consonance with the process which has been published, we are leaving it open for the authority to examine and proceed ahead, and as such, without expressing much on the said cognate petition, it is disposed of with an observation that respondent authority may examine and proceed ahead with the tender process in accordance with law as early as possible. With these observations, we deem it proper to dispose of the cognate petition also.

33. Insofar as lead petition is concerned, as we have indicated above, no case is made out by the petitioner to call for any interference and petition being merit less, we are of the opinion that same deserves to be dismissed. Hence, we proceed to pass the following;

ORDER

(i) Special Civil Application No.14857 of 2022 is hereby dismissed with no order as to costs, and in view of main petition being dismissed, no separate order deserves to be passed in the cognate petition, i.e. Special Civil Application No.19459 of 2022 and same stands disposed of with aforesaid observations which have been made in the present order. Notice is discharged. Ad-interim relief, if any, stands vacated.

(ii) All pending applications stand consigned to records since both petitions are disposed of.