ORDER U.N. Bhachawat, J. 1. This is a public interest action initiated under article 26 of the Constitution of India by the petitioner, who was one of the tenderer for the purchase of plants and equipments of the Gwalior Power House, owned by respondent No 1; in response to the tender notice (Annexure P. 2) that was issued by respondent No. 1. 2. The petitioner has vide this petition sought writ in the nature of mandamus or certiorari for quashing the deal between respondent No. 1 and 5 regarding the disposal of the plants and equipments of the aforesaid power house; also for restraining delivery of the plants and equipments under the delivery order Annexure R. 5/6 and for directing respondent No. 1 to sell the plants and equipments as per specifications in Annexure P. 2 with the alleged additional items contained in delivery order Annexure R. 5/6 dated 30-9-81 for Rs. 53 lacs. 3. Initially, the M. P. Electricity Board, respondent No. 1 had taken a decision to hold the sale of the plants and equipments of Gwalior Power House by a public auction fixing the reserve price at Rs 30,12,340-75. This reserve price was fixed taking into consideration the highest tender of Rs. 31,70,88500 that was received on an earlier occasion in the month of January, 1980 and reducing it by 5 per cent The date of auction was fixed on 10th of January, 1981 at Gwalior the place where the said power house is situated. The auction could not be held on this date. Thereafter, respondent No. I took a decision to hold the sale by inviting tenders. This decision is Annexure R. I. Pursuant to this decision tenders were invited vide tender notice Annexure P. 2. In response to this notice 7 persons including the petitioner gave the tenders. The petitioner's tender was for Rs. 42,77,777 and that of respondent No. 5 which was the highest, was for Rs. 45,00,278. The Board, respondent No. 1, on 10th August, 1981, vide Annexure R. 7 took up a decision to accept the tender of respondent No. 5. Pursuant to this, telegraphically vide Annexure R. 5/2 dated 11-8-1981 the acceptance was communicated to respondent No. 5, stating also as to when the payment was to be made. Thereafter the Sale Order dated 24th August. 1981, Annexure R. 5/4 was issued by respondent No. 1. Pursuant to this, telegraphically vide Annexure R. 5/2 dated 11-8-1981 the acceptance was communicated to respondent No. 5, stating also as to when the payment was to be made. Thereafter the Sale Order dated 24th August. 1981, Annexure R. 5/4 was issued by respondent No. 1. The payment of the price was made by respondent No. 5 on 29th September, 1981, as per the details indicated in Annexure R. 5/5. Thereafter the delivery order Annexure R 5/6 dated 30th September, 1981 was issued by respondent No. 1 in favour of respondent No. 5. 4. The petition has been filed by the petitioner challenging the aforesaid deal and seeking the relief as a ready stated hereinabove. These are the broad facts. The necessary detailed facts shall be stated hereinafter at an appropriate stage. 5. It may be stated that a show cause notice on this petition was issued to the respondents in reply to which the respondents filed their respective returns. Since the returns were filed with the consent of the parties, the petition was heard on merits. After the first date of hearing some additional pleadings were filed by the respective parties which were also taken on record. 6. This being a public interest litigation, here we start dwelling upon the merits, we would like to set out hereinbelow as a preface the legal position in such matters. 7. The finger-post of our way of life as a social and political being, for what we the people of India stand and what are our hopes and aspirations, have been indicated in the preamble of our Constitution. Amongst others, justice social, economic and political, equality of status and of opportunity are the objectives indicated in the preamble which, to put in the words of Granville Austin, are 'the conscience of the Constitution', to achieve which is embedded and enshrined in our Constitution as the Rule of Law. 8. It is the law which governs and not the man howsoever high in status, Government is also no exception to the rule of law. Checks and balances are provided in the Constitution. 9. Ours is a welfare State, the State which caters to the body, mind and spirit; it does not neglect any aspect of human activity, a State where there is prosperity, equality, freedom, social and economic justice. Checks and balances are provided in the Constitution. 9. Ours is a welfare State, the State which caters to the body, mind and spirit; it does not neglect any aspect of human activity, a State where there is prosperity, equality, freedom, social and economic justice. Thus with the growth of the welfare State the magnitude and range of Governmental functions are bound to increase; are increased and are increasing. 10. These activities of the Government which includes instruments either in exercise of its statutory or executive power, be it in the matter of its commercial activities say awarding a contract or selling or leasing out its property must be kept within the limits of the law or the Constitution. It cannot unlike a private individual act as it pleases. It is open to judicial scrutiny, liable to be tested for its validity on the touch-stone of reasonableness and public interest. In short the Government cannot be permitted to function like an unruly horse. It is controlled by reins of law and Constitution. When an action of the Government in the matter of granting largess, awarding contract of selling or leasing out its properties and like is challenged such a litigation, as judicially coined is public interest litigation because every activity of the Government must be guided by public interest. 11. The instant case, which, as we have already observed is initiated on the alleged ground of public interest is a specie of 'public interest litigation. The public interest litigation coveted under the Administrative Law has assumed greater importance in the recent years. This branch of the law laying down the test and scope of judicial interference have been amply exposed in the recent decisions of the Supreme Court, The matter has to be adjudicated within the frame work of the law laid down by the Supreme Court and not merely ex aequo et bono. The latest decisions in this field wherein all the previous relevant decisions of the Supreme Court have been surveyed and the subject has been very adroitly discussed, are M/s Kasturi Lal Lakshmi Reddy v. The State of Jammu & Kashmir and another ( AIR 1980 SC 1992 ) and Fertilizer Corporation Kamgar Union Sindri and others v. Union of India and others ( AIR 1981 SC 344 ). The relevant excerpts from these decisions are set out herein below- Kasturilal's Case- The Constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in an unprincipled manner, it has to be exercised for the public good. Every activity of the Government has a public element in it and it must, therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to "be invalidated. If the Government awards a contract or leases out or otherwise deals with its properly or grants any other largess, it would be liable to be tested for its validity on the touch stone of reasonableness and public interest and if it fails to either test, it would be unconstitutional and invalid. XXX The concept of reasonableness in fact pervades the entire constitutional scheme. The interaction of Articles 14, 19 and 21 analysed by this Court in Maneka Gandi v. Union of India. (1978) 2 SCR 621 : ( AIR 1978 SC 597 ) clearly demonstrates that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and, as several decisions of this Court shows, this concept of reasonableness finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles. It has been laid down by this Court in E.P. Royappa v. State of Tamil Nadu (1974) 2 SCR 348 : ( AIR 1974 SC 555 ) and Maneka Gandhi's case (supra) that Article 14 strikes at arbitrariness in State action and since the principle of reasonableness and rationality, which is legally as well as philosophically an essential element of equality or non-arbitrariness, is projected by this article, it must characterise every governmental action, whether it be under the authority of law or in exercise of executive power without making of law. XXX Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. XXX .......for there may be an infinite variety of considerations which may have to be taken into account by the Government in formulating its policies and it is on a total evaluation of various considerations which have weighed with the Government in taking a particular action, that the Court would have to decide whether the action of the Government is reasonable and in public interest. But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not in brined with public interest This burden is a heavy one and it has to Be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and, therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law. XXX It may be pointed out that this ground of invalidity, namely, that the governmental action is unreasonable or, lacking in the quality of public interest., is different from that of mala fides though it may, in a given case, furnish evidence of mala fides. XXX Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual deal with any person it pleases, out its action must be in conformity with some standard or norm which is not arbitrary, irrational or irrelevant. The Governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Article 14. The Governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Article 14. The Court referred to the activist magnitude of Article 14 as evolved in E.P. Royappa, v. State of Tamil Nadu AIR 1974 SC 555 ) (supra) and "Maneka Gandhi's case ( AIR 1978 SC 597 ) (supra) and observes that it must follow as a necessary corollary from the principle of equality enshrined in Article 14 that though the State is omitted to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test or reasonableness and nondiscrimination and any departure from such standard or principle would be invalid unless it can be supported or justified on some rational and non-discriminatory ground. "This decision has re-affirmed the principle of reasonableness and non-arbitrariness in governmental action which lies at the core of our entire constitutional scheme and structure. Fertilizer Corporation Kamgar Union's Case ( AIR 1981 SC 344 ) We want to make it clear that we do not doubt the bona fides of the authorities, but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table. XXX One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegations of mala fides. XXX Certainly, it is not part of the judicial process to examine enter-preneurial activities to ferret out flaws. The Court is least equipped for such oversights. Nor, indeed, is it a function of the Judges in our constitutional scheme. XXX Certainly, it is not part of the judicial process to examine enter-preneurial activities to ferret out flaws. The Court is least equipped for such oversights. Nor, indeed, is it a function of the Judges in our constitutional scheme. We do not think that the internal management business activity or institutional operation of public bodies can be subjected to inspection by the Court. To do so, is incompetent and improper and, therefore, out of bounds. Nevertheless, the broad parameters of fairness in administration, bona fides in action, and the fundamental rules of reasonable management of public business, if breached, will become justiciable. It is in the light of the aforesaid legal position that the instant case has to be examined. 12. Before we proceed to dwell on the merits, we would like to deal with the objections, which are of a preliminary nature, though raised on behalf of the respondents while replying to the arguments of the learned counsel for the petitioners. 13. The learned counsel for respondents Nos. 1 to 4 had contended that certain contentions not raised in the petition and raised in re-joinder that has been filed by the petitioners, after the filing of their respective returns by the respondents and additional affidavits of Sarvashri K. C. Goel dated 18th November. 1981, G. C. Arya dated 18th November, 1981 and second affidavit of Shri R. B. Agrawal Dated 16th November, 1981, should not be entertained. His submission was that the petition is the foundation of the petitioner's case and he has to remain confined to the contentions raised in that. The learned counsel for the respondents in this case placed reliance on the following observations of the Supreme Court in S.S. Sharma v. Union of India ( AIR 1981 SC 588 )-- We are of opinion that the Courts should ordinarily insist on the parties being confined to their specific written-pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well-known process of formally applying for amendment. We do not mean that justice should be available to only those approach the Court confined in a strait jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. We do not mean that justice should be available to only those approach the Court confined in a strait jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. If undue laxity and a too easy informity is permitted to enter the proceedings of a Court it will not be long before a contemptuous familiarity assails its institutional dignity and ushers in chaos and confusion undermining its effectiveness, Like every public institution, the Courts function in the security of public confidence and public confidence resides most where institutional discipline prevails. Besides this, oral submissions raising new poluts for the first time tend to do grave injury to a contesting party by depriving it of the opportunity, to which the principles of natural justice hold it entitled of adequately preparing its response. There can be no quarrel on the question of principle laid down by their Lordships of the Supreme Court; in the instant case it does not apply. The observations were in the context of an oral submission challenging the validity of the Office Memorandum for the first time; that was raised for the first time before the Supreme Court which is not the position here. Further it was not a matter relating to public interest litigation In the public interest litigation where the question to be examined is weather the action under challenge is unreasonable and against public interest. In such matters the rigour of strictness should not be that high, of course altogether new matter for which there are no seed in the petition cannot be entertained and looked in to. In the instant case, the rejoinder is more or less argumentative and is just a penumbra to the central point raised in the petition 14. The learned counsel for the petitioner had also relied on the observation of the Patna High Court in Kartick Chandra Dutta v. District Trafic Supdt. Pandu Region Katihar ( AIR 1957 Pat 676 )-- The authority of the District Traffic Superintendent to remove him from the service was questioned for the first time in his re-joinder to the counter affidavit on behalf of the opposite party. For this reason alone, this argument must be rejected. There are no reasoning. It is an ipsedixit observation and for that reason no assistance can be drawn from this. 15. For this reason alone, this argument must be rejected. There are no reasoning. It is an ipsedixit observation and for that reason no assistance can be drawn from this. 15. We now turn to the consideration of the other objection raised on behalf of respondent No. 5 that respondent No. 5 had entered into an agreement dated 29-8-1981 (Annexure R. 5(7) with National Engineering Industries Ltd. for some of the items and as such the third party interest having intervened in his absence the petition cannot proceed. This point was merely stated but with no stress. It is also a question to be considered whether in a public interest litigation, should such technicality prevail. We, therefore, leave open this point and it is not necessary also to decide in the instant case in the light of the view that we are taking of the matter on merits. 16. We now proceed to consider the merits. 17. It may be stated that the decision to sell is not questioned; what in questioned is the sale in favour of respondent No. 5 and the delivery order in his favour This is so clear from what is stated in Paragraph 24 to quote- That, the acceptance of the tender and making available additional items to the respondent No 5 by respondent Nos. 1 and 2 in the same tender offer is illegal unconstitutional, arbitrary, void and mala fide on the following amongst other grounds. XXX 18. The aforesaid challenge in the light of the contentions raised in the petition-pleadings and arguments advanced by the learned counsel for the petitioner can be sub-sumed under two beads : (i) The deal suffers from the vice of discrimination inasmuch as it was brought out as a result of a secret understanding between respondent Nos. 2 and 5; to keep out the petitioner and to deliver respondent No. 5 items in addition to those specified in the tender notice document (Annexure P. 5). (ii) The deal deserved to be vitiated because respondent No. 2 acted arbitrarily and recklessly and settled it for a low price forgoing the available high price, hence mala fide. It is, therefore, against public interest. 19. We proceed to consider the arguments under each head ad seriatim. (ii) The deal deserved to be vitiated because respondent No. 2 acted arbitrarily and recklessly and settled it for a low price forgoing the available high price, hence mala fide. It is, therefore, against public interest. 19. We proceed to consider the arguments under each head ad seriatim. 19-A No. (i)- The relevant allegations in this respect of the petitioners, contained in Paragraphs 19 and 20 of the petition, which so far relevant, are set out herein below. 19.--That, the above items were not mentioned in the tender specification notice and documents by the respondent No. 2 for offer of the sale to other tenderers and were kept hidden. It appears for a deal to be negotiated and settled with the respondent No. 5 It is submitted that if the above additional items would have been made known for sale to the petitioner firm then the offer of the petitioner firm would have been much more and higher than it was made or offered. The reasons for not declaring the above items in the tender documents and keeping them undisclosed and hidden were best known to the respondent No. 2 XXX 20.--The petitioners have reason to believe that the aforesaid understanding between the respondent No. 2 and the respondent No. 5 had remained from the very beginning. Therefore the attitude and conduct adopted and mentioned above was also to that effect. This is against the public interest as well as the interest of the petitioner film, who was one of the buyer and offered without the additional item for Rs. 42,77,777 which was rained to Rs. 48 lacs later on. It is submitted if the additional items would have been made known to the petitioner Arm the offer of the petitioner firm itself would have gone much higher approximately to the tune of Rs. 53,00,000. Hence the offer so accepted of the respondent No. 5 was arbitrary, unauthorised mala fide and without following any procedure, unconstitutional and void. In support of the petition, affidavit of petitioner's partner Keshavdeo Makbaria has been filed. He has verified the averment in paragraph 19 on the basis of his personal knowledge and paragraph 20 on the basis of information; neither the name of the informant is mentioned nor the affidavit of the informant is filed. In support of the petition, affidavit of petitioner's partner Keshavdeo Makbaria has been filed. He has verified the averment in paragraph 19 on the basis of his personal knowledge and paragraph 20 on the basis of information; neither the name of the informant is mentioned nor the affidavit of the informant is filed. 19-B. Before we proceed to dwell upon the merit of the above allegation, it is necessary to spotlight the following undisputed facts. We may make it clear that at the moment we are not dealing with the question whether additional items not notified in the tender documents are included in the delivery order and are being delivered to respondent No. 5. We shall deal with that aspect hereafter at an appropriate stage : (i) The decision of the Board, respondent No. 1 to accept respondent No 5's tender is dated 10-8-1981 (Annexure R. 7). (ii) The Sale Order (Annexure R. 5/4) by respondent No. 1 is dated 24-8-1981 signed by G. C. Arya. (iii) The delivery order (Annexure R. 5/6 is dated 30-8-1981 signed by G. C. Arya. (iv) Respondent No. 2 is "The Executive Director (Operation and Maintenance-Gen) of respondent No. 1. (v) Respondent No. 2 represented respondent No. 1 (Petition-paragraph 24 (xiv). (vi) The fact that K. C. Goel was holding the office of Executive Director (Operation and Maintenance-Gen.) up till 19-8-1981 and thereafter G. C. Arya was holding the office, was made clear in the affidavits filed on behalf of respondent No. 1 and 2. The petitioner filed the rejoinder thereafter; in the rejoinder there is no averment that there was any conspiracy between these two incumbents of the office regarding the deal in question or that individually both of them had any understanding with respondent No. 5. 19-C. We proceed to appreciate the allegations in the backdrop of the above undisputed fact. The charge extracted hereinabove is a very serious charge Full particulars of such charge should be put forth and case can be decided on the particulars as laid. See Bishundeo Narain and another v. Seogni Rai and others ( AIR 1951 SC 280 (d) ). A mere look at the averments extracted hereinabove indicate the vagueness. Not only this The averments in paragraph 19 and 70 of the petitioner are self contradictory. See Bishundeo Narain and another v. Seogni Rai and others ( AIR 1951 SC 280 (d) ). A mere look at the averments extracted hereinabove indicate the vagueness. Not only this The averments in paragraph 19 and 70 of the petitioner are self contradictory. In paragraph 19 it is stated "It appears for a deal to be negotiated and settled with the respondent No. 5" which goes to show that a secret deal between respondent No. 2 and respondent No. 5 was yet to be settled; whereas in paragraph 20 of the petition, the allegation is "The petitioners have reason to believe that the aforesaid understanding between respondent No. 2 and the respondent No. 5 had remained from the very beginning" which goes to show that the secret deal between the two was for a fait accomolt. This material contradiction exposes the hollowness of the allegation. Further this allegation of understanding from the beginning contained in paragraph 20 of the petition which is verified on information does not deserve to be accepted inasmuch as neither the name of the informant is disclosed nor an affidavit of the informant is filed. At this stage it would be pertinent to advert to the decision of the Supreme Court in Barium Chemicals Ltd., and another v. Company Law Board and others ( AIR 1967 SC 295 ) relating to the weight to be attached to the affidavit-allegation mala fides when the deposition is on the basis of information that was referred to by the learned counsel for the respondents in support of their argument about the rejection of this allegation of the petitioner as unfounded. The relevant observation reads as under : But these allegations are not grounded on any knowledge but only on "reasons to believe". Even for their reasons to believe, the appellants do not disclose any information on which they were founded. The relevant observation reads as under : But these allegations are not grounded on any knowledge but only on "reasons to believe". Even for their reasons to believe, the appellants do not disclose any information on which they were founded. No particulars as to the alleged discussion with the 2nd respondent, or of the petition which the said two friends were said to have made, such as its contents, its time or to which authority it was made are forthcoming It is true that in a case of this kind it would be difficult for a petitioner to have personal knowledge in regard to an averment of mala fides, but then where such knowledge is wanting he has to disclose his source of information so that the other side gets a fair chance to verify it and make an effective answer. In such a situation this Court had to observe in 1952 SCR 674 : AIR 1952 SC 317 , that as slipshod verifications of affidavits might lead to their rejection, they should be modelled on the lines of O. 19, R. 3 of the Civil Procedure Code and that where an averment is not based on personal knowledge, the source of information should be clearly deposed. In making these observations this Court endorsed the remarks as regards verification made in the Calcutta decision in Padmabati Dasi, v. Rasik Lal Dhar, (1910) ILR 37 Cal. 259. Apart from this consideration it is clear that in the absence of tangible materials, the only answer which the respondents could array against the allegation as to malafides could be one of general denial.' Further the fact that the incumbent of the office of respondent No. 2 till the stage of acceptance was different then the person who issued the sale and delivery order militates against the charge in absence of the allegation as mentioned in paragraph 19-b (7) above. 20. It was argued by the learned counsel for the petitioner that as respondent No. 2 is not a persona designata but the Executive Director (Operation and Maintenance Gen.), the allegation inure for every person who-held the office during the deal in question viz. in the instant case for K. C. Goel and G. C. Arya. 20. It was argued by the learned counsel for the petitioner that as respondent No. 2 is not a persona designata but the Executive Director (Operation and Maintenance Gen.), the allegation inure for every person who-held the office during the deal in question viz. in the instant case for K. C. Goel and G. C. Arya. The learned counsel for the petitioner relied on a decision of the Supreme Court in The State of Punjab v. Ramjilal and others ( AIR 1971 SC 1228 ), in support of his argument. This authority is distinguishable on facts from the instant case. Here the allegation is of a secret understanding with respondent No. 5 of respondent No. 2 office. It is an allegation attributing moral turpitude, which can only be by some human being. This was not the case in The State of Punjab v. Ramjilal and others (supra). In the light of the facts and circumstances of the instant case it was necessary for the petitioner to have made specific allegation against the specific incumbent of the office of respondent No. 2. It is well settled cannon of natural justice that you cannot condemn a man unheard, that is, without affording him an opportunity to explain, The opportunity of hearing means notifying the man concerned a specific charge against him; otherwise it would tantamount to asking a man to defead himself against an assault tying his hands on his back. 21. We now advert to the question whether the Delivery Order (Annexure R. 5/6) dated 30-9-81 contains for delivery items in addition to or in excess of the items specified in the tender document (Annexure P. 2,) 22. The petitioner has specified the additional items which are allegedly included in the Delivery Order in paragraph 16. The respondents have denied that any item in addition to or in excess of the item included in the tender document shall be delivered to respondent No. 5. In the return and the additional affidavit filed on behalf of respondents Nos. 1 to 4 (Affidavit of R. B. Agrawal dated 16-11-81) reply has been given with regard to each of the specific items alleged in petition-paragraph 16. In the return and the additional affidavit filed on behalf of respondents Nos. 1 to 4 (Affidavit of R. B. Agrawal dated 16-11-81) reply has been given with regard to each of the specific items alleged in petition-paragraph 16. With regard to item No. 1 (a) "under-ground copper cable", it is pointed out that this item is specified at item No. 4 clause 'D'; item No. 5 clause C-1 and 2; item No. 6 clause 'C' and 'H' of tender specification. 23. On the book at the items Nos. 4, 5 and 6 we find that the submission of the respondents is correct; the item mentioned at No. 1 (a). "Under-Ground Copper Cables" in paragraph 16 of the petition is included in the sale. We may point out that during the course of the argument; when these items Nos. 4, 5 and 6 were read the learned counsel was unable to point out that these items do not cover 'under-ground copper cables." Regarding items mentioned at Nos. 1 (b), 1 (c), 1 (d) and 1 (e) in the petition-paragraph 16, it has been specifically stated that these items are not sold and are not intended to be delivered to respondent No. 5. Neither an affidavit has been filed on behalf of the respondent No 5 to counter this averment of respondents Nos. 1 to 4 nor during the course of argument its correctness was questioned on behalf of respondent No. 5 rather it was accepted. 24. The main dispute and vehement arguments on behalf of the petitioner were with regard to the item mentioned at No. (II) in paragraph 16 of the petition. For better appreciation of the question we would like to extract the relevant paragraph of the petition as also the specific reply in the additional affidavit dated 16-11-1981, of R. B. Agrawal Divisional Engineer (O. & M. Gen.). This man has verified the facts stated in his affidavit on the basis of his personal knowledge. K. C. Goel has also in his affidavit dated, 18-11-1981 averred that R. B. Bansal is posted with the facts of the case as he has been dealing with the file and correspondent relating to it. G. C. Arya has also averred in his affidavit dated 18-11-1981 that nothing beyond the tender specification is being made available to respondent N. 5 : Paragraph 16 (11) of the Petition. G. C. Arya has also averred in his affidavit dated 18-11-1981 that nothing beyond the tender specification is being made available to respondent N. 5 : Paragraph 16 (11) of the Petition. (II) Item No. 9 of the tender is "spray pond Accessories" row by the addition of under ground and overhead pipe lines from source to termination point the following additional items have been made available to respondent No. 5. (a) Inlet and outlet pipe line from canal to "pond about 2 ft. diameter and length about 600 yards from source to termination point. Relevant portion from paragraph 8 of R. B. Agrawal's affidavit dated 16-11-1981. Item No. 11. -- Spray pond accessories inlet and outlet pipes from sources to termination:-- In Schedule No. 9 relating to Item No. 9 attached with the tender specifications, at Clause 3 "Pipe lines connecting the spray tank as specified in the Sketch" is mentioned. In the two sketches the inlet and outlet pipe lines are clearly shown from source to termination point. 25. The argument of the learned counsel for the petitioner was that the expression "and shall include all connected operating accessories and auxiliaries of above said equipments under ground or overhead with pipe lines from source to termination point" clearly goes to show that something in addition to what is mentioned in the tender specification should be delivered. His great emphasis was on the word "include". His argument was that the items following the word "include" had to be included as they were not covered in the tender specification. This is his arch argument. The learned counsel for the petitioner relied on a decision of the Supreme Court in Ramna Dayaram Shetty v. The International Airport Authority of India and others. ( AIR 1979 SC 1628 ) and contended that the word "include" cannot be ignored as superfluous. It has been used with a purpose in the delivery order and that purpose is as indicated just hereinabove. ( AIR 1979 SC 1628 ) and contended that the word "include" cannot be ignored as superfluous. It has been used with a purpose in the delivery order and that purpose is as indicated just hereinabove. The relevant portion from this decision Montana v. I. A, Authority (supra) is set out below : It is a well settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language or a document "and should be rather at the outset inclined to suppose every word intended to have some effect or (sic) of some use. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acced upon by the others should be presumed to use words without a meaning. The Court must, as far as possible, avoid a construction which would tender the words used by the author of the document meaningless and futile or reduce to silence any part of the document and make it altogether inapplicable. 26. The learned counsel for the petitioner further contended that as averred in petitioner's rejoinder as regards the spray ponds accessories by addition of "source to termination" in the delivery order Annexure R. 5/6 which are not in the tender specification item No. 9; the pipe line up to canal is being made available to respondent No. 5, which is not correct according to the sketch attached to the tender notice. He submitted that there are two sketch maps in the tender documents; the second one is the continuation of first. He submitted that the indication of column No. 8 in the first sketch are continued in the next sketch in column No. 1 at the top in the second sketch, which goes to show that the pipe line sold is from a pond to the spray pond, that is, a pond just next to the spray pond towards the canal and not up to the canal; which is the main source. He submitted that this position is clear from the sketches (Annexures P. 12 and P. 13) appended to the rejoinder. Learned counsel for the petitioner submitted that the value of these additional items is approximately Rs. He submitted that this position is clear from the sketches (Annexures P. 12 and P. 13) appended to the rejoinder. Learned counsel for the petitioner submitted that the value of these additional items is approximately Rs. 6,62.500 as per the report of the alleged expert Shri J. N. Narulla. 27. The learned counsel for the respondents in their arguments in counter submitted that in the tender notice itself against each item it is mentioned whether it is sold with auxiliaries or with accessories. It was pointed out that against items Nos. 1 and 3 it is mentioned with auxiliaries; against items Nos. 4, 5 and 6 it is mentioned with available auxiliaries and against item No 9 of spray pond it is mentioned with accessories and against in clause 17 in the tender document it is mentioned " The sale covers only plants and equipments along with available accessories and excludes spares" which goes to show that the sale was with auxiliaries and accessories. It was submitted that the pipe line from source to termination is nothing but an accessory Therefore it was very much included in the sale. It was further submitted that as per the deposition in the affidavit of R. B. Agrawal extracted hereinabove in paragraph 24 of this order it is made clear that the sketch indicates pipe-line from source to termination and it is included in the tender specification regarding item No. 9. In the counter to this, the rejoinder has been filed by the petitioner. Neither in the rejoinder nor in the affidavit filed in support of this rejoinder it is stated that indication of column No. 8 in sketch No 1 are continued in sketch No. 2; that they do not indicate the inlet and outlet pipes from source to termination and that as to who prepared Annexures P. 12 and P. 13 and what is the source of preparing these sketches. It was also pointed out that as per paragraph 3 of the affidavit filed in support of the rejoinder, the contents of the rejoinder are verified as " paras 1 to 27 are true to my information derived from the record of the petition the returns of the respondents and the Annexures filed by the petitioners and the respondents", which is no verification and the averments in the rejoinder do not counter what is mentioned in the return of the respondents and the additional affidavits filed on behalf of the respondents. It was further argued that the delivery order cannot be read in ob(sic)ivion of the tender specification and as such no question arises of delivering anything in addition to or in excess of what is mentioned in the tender specification. 28. Here we would like to state that during the course of arguments when it was observed that the way it was being contended on behalf of the petitioner about the pipe lines regarding the spray pond, it would be a question of fact needing investigation and in that event how can it be decided in this writ petition. The learned counsel for the petitioner had stated that the petitioner has not sought any investigation, the whole basis of petitioner's contention about inclusion of additional items in the delivery order Annexure R. 5/6 was the construction of expression extracted hereinabove in paragraph 25 of this order, in the delivery order 29. On giving our anxious consideration to the rival contentions and arguments and going through the documents and the pleadings, we are of the view that the arguments of the learned counsel for the petitioner cannot be accepted for the reasons to follow : (i) In the tender documents (Annexure P. 3) regarding items Nos. 1 and 3 it is mentioned with auxiliaries, regarding items Nos. 4, 5 and 6 it is mentioned with available auxiliaries and regarding item No. 3 it is mentioned with accessories, the delivery order has to be read in the context of the tender specification and the sale order (Annexure R. 5/4) which undisputedly is in conformity with the tender documents. Thus on so reading expression in question we are of the opinion that the auxiliaries and accessories have references to the auxiliaries and accessories as mentioned in the tender specification. Thus on so reading expression in question we are of the opinion that the auxiliaries and accessories have references to the auxiliaries and accessories as mentioned in the tender specification. (ii) As regards the expression "pipe line from source to termination point" it has been explained in the affidavit of Shri R. B. Agrawal which has been verified from personal knowledge and there is nothing to counter it. The petitioner's affidavit in support of the re-joinder is not based on personal knowledge; on what it is based, we have already extracted in paragraph 27 hereinabove, which is not only vague: but goes to show, is based on mere inference. Further it has not been disputed that pipe lines from source to termination is an accessory. It would also be pertinent to point out that the allegation contained in paragraph 16 of the petition is verified on information; from whose information, is not mentioned. The petitioner firm is one of the tenderer. Its partner who has filed the affidavit in support of the petition and has stated that he is acquainted with the facts of the case, could very well either depose that on the spot there was no pipe line connecting The spray pond from canal to spray pond, that is, from source to termination, because when in the tender it is specifically mentioned that the plant will be sold on "As Is Where Is Basis", it is expected that he must have inspected the spot prior to submitting the tenders or if some one else had inspected the spot before submitting the tender his name could have been mentioned. For the parity of reasons stated in paragraph 20 relying on the State of Punjab's case (supra), the affidavit of the petitioner on this Court cannot be accepted as against the affidavit of R. B. Agrawal dated 16-11-1981. In this set of circumstances we are compelled to hold that the word 'include' is superfluous, the items mentioned following the word 'include' were already included in the tender specification. (iii) The other argument of the learned counsel for the petitioner was that respondent No. 2 had been deliberately avoiding to send the tender documents to the petitioner. In this set of circumstances we are compelled to hold that the word 'include' is superfluous, the items mentioned following the word 'include' were already included in the tender specification. (iii) The other argument of the learned counsel for the petitioner was that respondent No. 2 had been deliberately avoiding to send the tender documents to the petitioner. In this respect he submitted that the last date for submitting tender was 27-11-1981, but despite petitioner's letter dated 24-3-1581 (Annexure R. 9); reminder dated 31-3-1981 (Annexure R (sic) to respondent No. 2 the tender documents were Dot sent to him immediately and in letter dated 3-4-1981 (Annexure R. 2) without enclosing the tender notice and documents wrongly stated that they were enclosed with that letter. He submitted that it was only when the petitioner wrote vide its letter dated 6-4-1981 (Annexure R. 11) (sic) copy to the Chairman that no enclosures were there with the letter (Annexure R 2) and also complained to the Chairman of respondent No. 1 vide letter dated 8-4-1981 (Annexure R. 12) under copy to respondent No. 2 then vide letter dated 10-4-1981 (Annexure R 3) the tender notice was sent. This argument of the learned counsel for the petitioner appears to be an argument for the sake of argument R. B. Agrawal and K. C. Goel both in their respective affidavits have mentioned that the letter dated 24-3-1981 (Annexure R. 9) of the petitioner was received on 31-3-1981 and reply enclosing the tender notice as was asked for by the petitioner was sent on 3-4-1981 (Annexure R. 2). There is no reason to disbelieve this deposition on the affidavit of these two persons. Admittedly on hearing from the petitioner, that it did not receive the enclosure vide letter dated 10-4-1981 (Annexure R. 3) was again sent to the petitioner. Had the intention of respondent No. 2 been to avoid the petitioner why for the second time this would have been sent to him. Not only this admittedly on 16-4-1981 when the petitioner's representative paid the requisite tender fee, he was supplied the same. It is not disputed that tender documents could be supplied only on payment of requisite charges. The petitioner had vide his letter dated 24-3-1981, 31-3-1981 and 6-4-1981 had neither sent the requisite fees nor had asked for the tender documents He had only asked for tender notice. It is not disputed that tender documents could be supplied only on payment of requisite charges. The petitioner had vide his letter dated 24-3-1981, 31-3-1981 and 6-4-1981 had neither sent the requisite fees nor had asked for the tender documents He had only asked for tender notice. Thus there is no substance in the argument of the learned counsel for the petitioner that respondent No. 2 was avoiding to send the tender notice and or tender documents to the petitioner. 30. In the light of the foregoing discussion we are of the view that the arguments of the learned counsel for the petitioner under head No. (i) should be repelled and are accordingly repelled. 31. No. (ii) --We shall consider the arguments of the learned counsel for the parties under three sub-heads one after the other for the sake of convenience: (a) Post tender offer. (b) Mode of sale. (c) Miscellaneous. 31. Head (a)--The central core of the arguments of the learned counsel for the petitioner was that in not acting and accepting the post tender offers which were much higher even after the breach of the term of payment of the price by respondent No. 5 inasmuch as he did not pay it within the stipulated time-30 days from the date of acceptance of tender, respondents Nos. 1 to 4 have acted arbitrarily, recklessly and against public interest. The sanctity lay in a heaving the highest price and only that was in the public interest, all reasons and explanations of respondents Nos. 1 to 4 against this fail. He submitted that clause 6 of the tender condition provided that "The rates quoted by tenderers should stand valid for a period of six months from the date of opening of tender" to had the respondents Nos. 1 and 2 acted rationally and reasonably, they could have negotiated in between this period and attempted for a higher price without loosing anything. Their not doing so, evidences that they acted arbitrarily and recklessly. The documents relating to petitioner's post tender offer are detailed herein below. (A) Petitioner's letter dated 19.4.1981 (Annexure P. 4) addressed to respondent No. 2. 1 and 2 acted rationally and reasonably, they could have negotiated in between this period and attempted for a higher price without loosing anything. Their not doing so, evidences that they acted arbitrarily and recklessly. The documents relating to petitioner's post tender offer are detailed herein below. (A) Petitioner's letter dated 19.4.1981 (Annexure P. 4) addressed to respondent No. 2. Under copies.--(1) to Chief Engineer, who marked it to respondent No. 2 without any remark and respondent No. 2 received it on 4-5-1981; (ii) to Technical Member, who also marked it to respondent No. 2 without any remark and respondent No. 2 received it on 5.5.1981; (iii) to Chairman, who also endorsed it to respondent No. 2 and respondent No. 2 received it on 5-5-1981. In this letter, the petitioner had suggested that respondent No. I should settle the sale by negotiations across the table and in that in petitioner's view respondent No. 1 would be able to fetch a price between 45 to 50 lacs. (B) Letter of petitioner dated 16-6-1981 (Annexure P. 5) addressed to the Chief Minister, Madhya Pradesh, under copies-- (i) to Minister for Electricity (Annexure R. 15). (ii) to Chairman (Annexure R. 16). All these were received by respondent No. 2 without any comment. In this letter the petitioner stated that previously also number of times intending purchasers had given their tenders, but after the tender was accepted never came forward with price; because of such bogus offers the material is not being sold and is deteriorating by lying idle and, therefore, to avoid all bogus offers, the Board, respondent No 1 should invite all the tenderers for negotiations across the table and settle the bargain and that would decidedly fetch a higher price than what was tendered till then for which the petitioner was prepared to give a bank guarantee. In this letter the petitioner also gave same suggestions as to on what term the negotiations should take place to as to ensure safe payment and avoid bogus purchasers. In this letter the petitioner also gave same suggestions as to on what term the negotiations should take place to as to ensure safe payment and avoid bogus purchasers. (C) Petitioners telegram dated 1-7-1981 (Annexure P. 6) to the Chief Minister (Annexure P. 6), confirmatory copy received by respondent No. I is Annexure R. 18 on 31-7-1981 Vide this telegram the petitioner communicated-- Gwalior Power House Plant Required by Actual Consumer, (Stop) We beg to submit revised offer for your kind consideration for Rupees Forty Eight Lakhs on behalf of actual consumer (Stop) payment assured within seven days (Stop) May Please call for negotiations. (D) Petitioner's telegram dated 29-9-1981 (Annexure P. 7) and confirmatory copy of telegram (Annexure P.7) to respondent No. 2. Vide these communications the revised offer that was made as per telegram dated 17-1981 on behalf of the actual consumer of Rs. 48 lacs was reiterated stating that no extention for payment of price be granted to respondent No. 5 and the revised offer should be accepted. 32. The learned counsel for the petitioner had argued that on 10-8-1981 vide Annexure R. 7 when respondent No 1 resolved to accept the tender of respondent No. 5, the post tender offer of Pradeep Traders was only considered and not of the petitioner. Had the offer of the petitioner detailed above been placed with the Board it would have materially affected its decision, it would have postponed the acceptance of the tender of respondent No 5 and would have attempted a negotiated sale by achieving higher price. Learned counsel for the petitioner had also submitted that even on earlier occasion as indicated by Annexure R. sealed tenders were called but they were not accepted and steps were taken by respondent No. 1 for having the sale afresh. Therefore, the explanation of sanctity of sealed tender of respondent No. 1 and 2 for not considering the post tender offers does not hold valid. 32-A. The detailed reply with regard to the aforesaid correspondence is contained in the additional affidavit dated 16-11-1981 or R. B. Agrawal and K. C. Goel dated 18-11-1981 which so far material is to the following effect. 33. 32-A. The detailed reply with regard to the aforesaid correspondence is contained in the additional affidavit dated 16-11-1981 or R. B. Agrawal and K. C. Goel dated 18-11-1981 which so far material is to the following effect. 33. Before the receipt of the letter dated 29-4-1981 the original file along with the relevant records containing the result of invitation of tenders had already been submitted by respondent No. 2 to the Board for its consideration on 1.5.1981; that the Member Secretary on 24-5-1981 had taken a decision to preserve the sanctity of inviting the sealed tenders and not to take cognizance of post tender offers. This decision was endorsed by the Finance Member and the Chairman as well vide Annexure R. 17; that on letter dated 29-4-1981, no comments were made by all the persons to whom copies were sent and it deserved no consideration; it did not contain any offer, but a mere expression of opinion of the petitioner; and that as already stated hereinabove, the letter dated 16-6-1981 was also received without comment from all persons to whom it was addressed and to whom its copies were endorsed; that as in the meanwhile vide Annexure R-17 it was decided that post tender offers need not be considered, no action was necessary on this latter dated 16-6-1981 and more so it did not contain any offer. With regard to the telegram dated 1-7-1981, it is stated that the Chief Minister had vide his note dated 31-7-1981 on the letter confirming the said telegram enquired about the position. This was received by the Chairman, who endorsed it to respondent No. 2 and respondent No. 2 on receipt of this letter on 10-8-1981 prepared the summary (Annexure R. 19) which was despatched to the Chief Minister on 31-8-1981. Thereafter nothing was heard from the Chief Minister. It is further stated that on 6-7-1981, the petitioner had presented letter Annexure R. 20 to the Chief Minister. After the receipt of this, as desired by the Chief Minister the Chairman of the Board had discussion with the Chief Minister and both were of the opinion that action be taken only on the basis of the tenders received. This Annexure R. 20 was received with this nothing of the Chairman, by respondent No. 2 an 14-7-1981. That the telegram dated 29-9-1981 and its confirmatory copy were not received before 30-9-1981. This Annexure R. 20 was received with this nothing of the Chairman, by respondent No. 2 an 14-7-1981. That the telegram dated 29-9-1981 and its confirmatory copy were not received before 30-9-1981. The copy of this telegram received by respondent's Central Officer has been filed as Annexure R. 21 and before that the transaction was finalised; hence neither any action was possible nor it was necessary and further it was not an offer on behalf of the petitioner but an undisclosed actual consumer. 34. The learned counsel for the respondent reiterating what has been stated in the return and the additional affidavit resume where of has been given above and, inter alia, contended as follows and submitted that the action of the Board is fair, reasonable and in public interest: (i) The alleged post offers irrespective of the fact that they are no offers, are afterthought and disclose that the petitioner has no real interest but has been set up by some one with an ulterior motive to play dog in mangers policy Even in the notice for justice of demand the name of the so called actual consumer was not disclosed. (ii) The notification inviting tenders was widely published in all India Papers as alleged in paragraph 6 of the return of respondent Nos. 1 to 4 and one of the conditions in the tender notice Annexure P. 2 was that "the tenders received after due date will not be accepted." The acceptance of post tender offer would have meant violation of this term, which would have been hit as discriminatory in the light of the principle laid down in Ramana Dayaram Shetty's Case (supra). (iii) Commercial expediency required that maintenance of the sanctity of sealed tenders and if post tender offers were to be considered, the process would never end and no finality would be reached. (iv) Clause 6 of the tender conditions did not override the condition that offers received after the specified date and of persons who did not submit the tender by the stipulated date shall not be considered and there could be no certainty of getting higher price. A bird in hand is better than two in the bush. By keeping the acceptance of tender pending, the Board would have been deprived of the use of a huge sum of Rs 45 lacs. A bird in hand is better than two in the bush. By keeping the acceptance of tender pending, the Board would have been deprived of the use of a huge sum of Rs 45 lacs. (v) That as per clause 8 of the tender document Annexure P. 2 and section 11 of the Sale of Goods Act time regarding payment was not the essence of the contract, which was made on the acceptance of the tender; the Board could not on the failure of respondent No. 5 to make the payment in time terminate the contract. Had the Board done so, it would have exposed itself to litigation and would have been liable for damages and it would not have been in public interest. (vi) That the difference in the price offered by respondent No. 5 and the post tender offer is only of 3 lacs which is not a big sum in such a deal. 35. For the reasons to follow the arguments of learned counsel for the petitioner do not deserve to be accepted. 36. It is an admitted position that the tenders were opened on 27th of April, 1981 in the presence of the petitioner. At that time and thereafter till 2 days, that is, upto 29th April, 1981 the petitioner did not say anything in the matter of price. Further the petitioner's letter dated 29-4-1981 and 16-5-1981 (Annexure P. 4 and Annexure P. 5) respectively do not give any concrete offer as is evident from the contents of the letters given hereinabove in paragraph 31 of this order. It contained mere suggestions The telegram dated 1-7-1981 (Annexure P. 6) and 29-9-1981 also did not contain an offer from any identified person. It contained mere suggestions The telegram dated 1-7-1981 (Annexure P. 6) and 29-9-1981 also did not contain an offer from any identified person. In these telegrams the petitioner only said that he was making a revised offer on behalf of an actual consumer Admittedly, the petitioner is not a consumer and it is understandable, if the offer was bona fide why the consumer should not have submitted the tender when the tender notice was widely published in All India Papers It is reasonable to think that unless the name of the consumer on whose behalf the offer was being made, the respondent Board could not be in a position to ascertain whether the offer was bona fide as also the financial status of the person on whose behalf the offer was made, which it was necessary to examine looking to the price involved. 37. It was argued by the learned counsel for the petitioner that the reasons given in the return and the additional affidavits filed on behalf of respondents No. 1 to 4 for not considering the post tender offer of the petitioner should have bees recorded at the time when they were not considered. Now after filing of the petition the reasons given in the return cannot be taken into account. In this respect the learned counsel for the petitioner relied on the decision of the Supreme Court in Commissioner of Police Bombay v. Gordhan-das Bhanji ( AIR 1952 SC 16 ) and Mohinder Singh Gill v. The Chief Election Commissioner New Delhi ( AIR 1978 SC 851 ). These decisions are quite distinguishable from the instant case and cannot be pressed into service. These decisions provided that when a statutory authority makes a public order publicly made in exercise of its statutory power under a statute the validity of that order with reference to the statute has to be Judged by the reasons recorded at the time of making that order. This is not the situation in the instant case. We may mention here that the petition is not based on the ground of violation of any statutory provision. This is not only clear from the pleadings of the petitioners but it was also made clear by the learned counsel for the petitioner on a specific query by the Court. This is not the situation in the instant case. We may mention here that the petition is not based on the ground of violation of any statutory provision. This is not only clear from the pleadings of the petitioners but it was also made clear by the learned counsel for the petitioner on a specific query by the Court. This apart in the light of the facts of the instant case, it is difficult to hold that the reasons given by it in the return and the additional affidavit filed on behalf of respondent Nos. 1 to 4 as to why the post tender offer of the petitioner was not worthy of consideration are inventented ones for contesting the petition and were not present in the mind at the relevant time. 38. From the facts, resume whereof is given in paragraph 33 of this order, all of which are not necessary to be repeated here again, it is cleer that the post tender offer of the petitioner had come to the knowledge of the Member Secretary, Finance Member and the Chairman of the Board and also of the Chief Minister (Annexure R. 17 and R. 20) and they had already taken up a decision that being post tender no action should be taken on it before accepting the tender of respondent No. 5. The fact that the post tender offer was not on behalf of the petitioner, but was on behalf of some undisclosed and unidentified is axiomatic from the offers themselves. The letters dated 29-4-1981 and 1-6-1981 did not contain offer but mere opinion and suggestion of the petitioner is also plain from their contents In this setting of the facts the reasons urged on behalf of the respondents justifying their non-consideration can be taken into account by the Court and tested on the touch stone of reason ability, which we have done as already discussed in paragraph 36 above. 39. It is true that the resolution of the respondent-Board dated 10-8-1981 (Annexure R. 7) does indicate that while resolving to accept the tender of respondent No. 5 only the post tender offer of M/s Pradeep Traders of Rs. 51 lacs who was one of the tenderers amongst the 8 tenderers in response to the tender notice (Annexure P. 2) and had quoted Rs. 51 lacs who was one of the tenderers amongst the 8 tenderers in response to the tender notice (Annexure P. 2) and had quoted Rs. 36,66,870, was considered and the post lender offer of the petitioner was not considered But nothing turns on this. As already stated in paragraph 38 above, most of the members of the Board were already alive to it and bad decided to reject it as a matter of policy. The same policy was reiterated by the Board even in face of a post tender offer of an amount higher than that of the petitioner. When the Board decided it as a matter of policy not to accept post tender offer to maintain the sanctity of the sealed tenders. The post tender offer of the petitioner stands rejected as a sequel, though it has not been so specifically recorded in Annexure R. 7. 40. We now consider whether the rejection of post tender offer on the ground of maintaining the sanctity of sealed tenders is valid on the anvil of reason and relevance. 41. In the tender notice (Annexure P. 2) it was specifically notified that tenders beyond the specified date, that is, 27-4-1981 would not be accepted. The fact averred in paragraph 6 of the return of respondent Nos. 1 to 4 that the tender notice was widely published in the provincial and all India news papers, has not been denied by the petitioner in its re-joinder. After this wide publicity the tenders were received. In race of those facts it is difficult to hold that the respondent Board was unreasonable in adhering and honouring its condition in the tender notice. No reasonable man much less a judicial mind can say that there is no sanctity attached to the above referred condition in the tender notice. There is a moral and legal sanctity attached to it. Truth, virtue and purity are undestructible. It has to be observed and reflected in every sphere of human activity may it be governmental. Once the Board had notified that condition, unless compelled by reasons of public interest, it was morally bound. Even a matter of law the Board was bound by it. The acceptance of post tender offer either of the petitioner or Pradeep Traders would have been hit on the ground of discrimination. The Board as Sit appears from Annexure R. 7 was alive to this legal position. Even a matter of law the Board was bound by it. The acceptance of post tender offer either of the petitioner or Pradeep Traders would have been hit on the ground of discrimination. The Board as Sit appears from Annexure R. 7 was alive to this legal position. Here we would like to extract the relevant part of Annexure R. 7. Since the acceptance of the post tender offer vitiates very sanctity of the sealed tenders and as it would be unethical to consider this without giving an opportunity to other tenders, decided to ignore the post tender offer of M/s Pradeep Traders, New Delhi. 42. At this stage it would be pertinent to advert to the decision of the Supreme Court in Ramana Dayaram Shetty's case (Supra). In this' case the International Airport Authority of India had invited tenders for putting up and running a second class restaurant and two snack bars at the International Airport at Bombay. It had laid down qualifications for the eligibility of tenderers. It was "registered IInd Class Hotelier having at least 5 years experience". Respondent No. 4 who had 10 years experience in catering to reputed commercial house training centres banks and factories and had been doing considerable outdoor catering work, had been running canteens for Philips India Ltd. and Indian Oil Corporation and held Eating House Licence granted by the Bombay Municipal Corporation since 1973 had given his tender and had quoted the highest. His tender was accepted-. A writ petition Was filed Challenging the decision of the Air Port Authority to accept the tender of respondent No. 4 on the ground that respondent No. 4 did not satisfy the eligibility condition notified in the tender notice and as such his tender could not be considered. The departure from the standard or norm of eligibility had the effect of denying equal opportunity to the petitioner who was in the same position as the 4th respondent vis a vis the eligibility condition and others of submitting their tenders and being considered for entering into the contract. The departure from the standard or norm of eligibility had the effect of denying equal opportunity to the petitioner who was in the same position as the 4th respondent vis a vis the eligibility condition and others of submitting their tenders and being considered for entering into the contract. The contention of the petitioner was sought to be met, inter alia, by the arguments that (i) paragraph (8) of the notice clearly provided that the acceptance of the tender would rest with the Air Port Director who did not bind himself to accept any tender and reserved to himself the right to reject all or any of the tenders without assigning any reasons therefore and it was, therefore, competent to the first respondent to reject all the tenders and negotiate with any person it considered fit to enter into a contract and this is in effect and substance; what the respondent No. 1 did when he accepted the tender of respondent No. 4; (ii) it was competent to respondent No. 1 to give the contract to any one it thought fit and it was not bound by the standard or norm of eligibility-set out in the tender notice and (iii) that the writ was liable to be rejected, in the exercise of its discretion by the Court since the appellant had no real interest but was merely a nominee of some one else who had put up the petitioner with a view to preventing the award of contract to 4th respondent. 42-A The Supreme Court which was examining the matter in appeal by Special Leave rejected all the contentions of respondents No: 1 and 4 but dismissed the petition on the ground that the petitioner had no real-interest and was Set up by one A. S. Irani for depriving respondent No.-4 of the benefit of the contract secured by him. 42-A The Supreme Court which was examining the matter in appeal by Special Leave rejected all the contentions of respondents No: 1 and 4 but dismissed the petition on the ground that the petitioner had no real-interest and was Set up by one A. S. Irani for depriving respondent No.-4 of the benefit of the contract secured by him. The observation relevant for the instant case are set Out below-- It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound, to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered find Class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender. It was not the contention of the appellant that this standard or norm prescribed by the 1st respondent was "discriminatory having no just of reasonable relation to the object of inviting tenders, namely to award the contract to a sufficiently experienced person who would be able to run efficiently a IInd class restaurant at the airport Admittedly the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd Class restaurant should be awarded was laid down the 1st respondent was not entitled to depart from it and toward the contract to the 4th respondents who did not satisfy the condition of eligibility prescribed by the standard or norm. If there Was no acceptable tender from a person who satisfied the condition of eligibility, the 1st respondent could have rejected the tenders and invited fresh tenders on the basis of less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of the 4th respondents. When the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years' experience of running a II Class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering the contract. When the 1st respondent entertained the tender of the 4th respondents even though they did not have 5 years' experience of running a II Class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering the contract. There might have been many other persons, in fact the appellant himself claimed to be one such person, who did not have 5 years' experience of running a IInd class restaurant, but who were otherwise competent to run such a restaurant and they might also have competed with the 4th respondents for obtaining the contract, but they, were prejudiced from doing so by the condition of eligibility requiring five years' experience. The action of the 1st respondent in accepting the tender of the 4th respondents; even though they did not satisfy the prescribed condition of eligibility was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract if it was also arbitrary and without reason. The acceptance of the tender of the 4th "respondents was, in the circumstances, invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action. 43. Applying the principle discernible from the above decision of the Supreme Court, it can well be said that if the respondent-Board had accepted the post tender offer either of the petitioner or of Pradeep Traders or had settled the deal by negotiating without rejecting all the tenders, on the ground that price offered was inadequate. It cannot be gainsaid that in view of clause 16 of the tender notice Annexure P. 2 and as also held by the Supreme Court in P.R. Quenim v. Makan Kalyan Tandel and others ( AIR 1974 SC 651 ) the Board was not bound to accept the tender and could reject all tenders; but the question is, did the Board acted arbitrarily or recklessly or against public interest in not cancelling and taking steps afresh for the sale. Obtaining of the highest price is in the public interest, the tenders or auction sale are held with the object of obtaining the highest price. In the instant case the challenge of the petitioner was not that the price of Rs. forty five lacs was inadequate. The central challenge was on the ground that why the post tender offers were not accepted. In the instant case the challenge of the petitioner was not that the price of Rs. forty five lacs was inadequate. The central challenge was on the ground that why the post tender offers were not accepted. It is of seminal importance to note that even in the petition, the petitioner has prayed that the Board should be directed to sell the plants and equipments specified in tender notice to the petitioner for Rs. forty eight lacs. The Board had, as stated in uncontroverted affidavit of R. B. Agrawal dated 16-11-1981 received the highest quotation of Rs. 31,70.885 (Annexure P. 8) in January, 1980 on inviting tenders. The basis the Board had fixed the reserve price for the auction that it had proposed to hold on 10-1-1981. As against this the highest tender of respondent No. 5 was Rupees forty five lacs, two hundred and seventy eight. Thus this price offered was not inadequate. The post tender offer by the tenderer M/s Pradeep Traders and the petitioner who had offered Rs. 36,66,870 and of Rs. 42,77,777 respectively could not reasonably be taken as a standard to judge the adequacy of the price These offers could not be treated as bonafide. If there was the reasonable price in view of these persons, it passes our comprehension as to why these persons who immediately after the opening of the tender quoted those prices did not quote them in their respective tenders, and quoted a low price particularly when they knew that tenders were invited from all over the country after due publicity through provincial and all India papers. 44. If on the basis of the higher offers made after the opening of the tenders, the tenders are cancelled, there would be no sanctity of sealed tenders and also no finality regarding the deal would be reached. Every time after the tenders are opened, some one would make a higher offer and the process would go on. Further after cancelling the tenders, had the Board started the process again, it would have taken time and the plant and equipments would have been deteriorating and what could be the guarantee that a price better than the present offer taking into account the loss of the utility of the money that the Board was getting at present, would have been obtained. Here we would like to extract the portion from the letter of the petitioner dated 16-6-1981 (Annexure P. 5) which justifies the aforesaid reasonings. Board had tendered the above power plants several times and confirmed it to various parties But after confirmation parties never come forward for payment and deal was in vain. Parties give bogus offer so that those who are genuine buyer and are in a position to pay money instantaneously do not get it. Bogus offer cannot pay money and question of lifting the material do not arise. Material gets debriated by tying idle. 45, In the light of the foregoing discussion we are of the view that the respondent Board's action in not taking cognizance of post tender offers and accepting the tender of respondent No. 5 was reasonable, neither arbitrary nor reckless. It cannot be said that the respondent Board was playing ducks and darks with public property. Here we would like to recall the observation of the Supreme Court in Fertilisers case (supra) extracted at the end of page 9 of this order 46. Here we would also like to point out that the respondent Board was nor right in taking quotations contained in Annexure R. 8 for fixing the reserve price. The Board should have got the plant and equipment valued by an expert and then fixed the reserve price This point has been raised in the rejoinder, hot in the main petition. However, it is devoid of substance. It is well settled principle that market price is the one which a willing purchaser is willing to give and for which the vendor is prepared to sell. In the backdrop of this principle the reserve price fixed on the basis of the quotations that were received in January 1980 cannot be said to be unreasonable. The learned counsel for the petitioner was unable to point out any recognised method for fixing the reserved price contrary to the one adopted by the Board. 47. We now turn to the question of terminating the contract on respondent No. 5's failure to make the payment in the stipulated time. The term regarding payment as contained in clause 8 of the tender notice Annexure P. 2 is 30 days from the date of official intimation of the acceptance. The payment was admittedly made on 29-9-1981 by respondent No. 5. The term regarding payment as contained in clause 8 of the tender notice Annexure P. 2 is 30 days from the date of official intimation of the acceptance. The payment was admittedly made on 29-9-1981 by respondent No. 5. The acceptance was telegraphically communicated to respondent No. 3 Vide telegram Annexure R. 5/2 dated 11-8-1981. In this acceptance the term of payment was modified. Respondent No. 5 while confirming this acceptance Vide telegram dated. 13-8-1981 Annexure R. 5/3 objected to the modification of the term of payment and contended that the term in the tender notice should be stuck to. The sale order dated 24-8-1981 was sent Vide registered A D. post to respondent No. 5 (Annexure R. 5/4) which he contends, was received by him on 29-8-1981. There has been a controversy during the course of arguments as to from what date the period of 30 days has to be counted whether from 11/12-8-81 or 29-8-81 which is the official intimation of acceptance of the tender. We do not propose to go into this controversy as in any case the payment was beyond 30 days, whether it be one day or 17 days Clause 8 of the tender notice (Annexure P. 2) provided--"within a period of 30 days, failing which the orders are likely to be cancelled " On a plain reading of this clause it is clear that time regarding the payment of the price was not intended to be the essence of the contract. Similarly section II of the Sale of Goods Act provides-- 11. Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract. Thus on reading clause 8 of tender notice, along with section 11 of the Sale of Goods Act, it can well be said that lime was not the essence of the contract brought out between the respondent Board and respondent No. 5 on the acceptance of tender of respondent No 5. Thus on reading clause 8 of tender notice, along with section 11 of the Sale of Goods Act, it can well be said that lime was not the essence of the contract brought out between the respondent Board and respondent No. 5 on the acceptance of tender of respondent No 5. In such a situation a contract could not be cancelled on the non-payment of the price in time The stipulation regarding period of payment was a warranty, the breach of which could give rise to a claim for damages but not to a right to repudiate the contract. (See section 12 of the Sale of Goods Act) 48. In the light of the foregoing discussion the Board could not repudiate the contract and star; the process of sale afresh. 49. Head (b) -It was argued by the learned counsel for the petitioner that the mode of tale by inviting tenders was not proper His submission was that the sale should have been carried by auction sale. His submission was as alleged in the petitioner's rejoinder "in the tender method there is every likelihood to deal with 3ny tender in any manner." The learned counsel for the petitioner had relied upon the observation of the Supreme Court in Fertilisers Corporation's case (supra) extracted at page 9 of this order beginning from " We want to make it clear............its cards on the table." 50. We are unable to accept the argument of the learned counsel for the petitioner. What has been observed by the Supreme Court in Fertilisers Corporation's case (supra) is "sale of public property, when the intention is to get the best price, ought to take place publicly." It does not lay down as a matter of law that sale by auction is the only method to be adopted for sale of public property and not the sale by inviting tender. The learned counsel for the petitioner was also unable to point out any statutory provisions requiring the sale by public auction. We may here point out that as averred in paragraph 3 of the return of respondents Nos. The learned counsel for the petitioner was also unable to point out any statutory provisions requiring the sale by public auction. We may here point out that as averred in paragraph 3 of the return of respondents Nos. 1 to 4 and as evidenced by Annexure R. 1 the Board in the light of its experience regarding the sale of its plant at Raipur that bids were received much less than the reserve price, decided to sale the plant and equipments of its Gwalior Power House by inviting tenders. It is a matter of common knowledge that sale by inviting tenders is also a well recognised method. Though we are informed that no regulations have been framed under section 79 of Electricity (Supply) Act 1948; from clause (g) of this section it can well be inferred that method of tender is a method permissible under the law. It would also be relevant to point out that undisputedly wide publicity was given to the tender notice. The tender notice (Annexure P 2) provided for sealed tenders and for opening of the tenders in the presence of attending tenderers and the tenders in the instant case were opened in the presence of the petitioner. No decline in the matter has been alleged by the petitioner. Here we would like to recall the observations of the Supreme Court extracted hereinabove at pages 7 and 9 of this order that we should not look at the governmental action with the eye of suspicion and presume it to be reasonable and in public interest. 51. For the foregoing discussion, we are unable to accept the arguments of the learned counsel for the petitioner. 52. Head (c)--It was argued by the learned counsel for the petitioner that the noting of the Chairman dated 9-7-81 on Annexure R. 20 does not indicate whether a decision to proceed for the sale on the basis of tenders received was the decision of the Chairman or of the Chief Minister. If it is the decision of the Chief Minister, he had no authority. If it is a decision of the Chairman it was on the mandate of the Chief Minister as also it is void. His submission was that the decision should have been of the Board. This argument of the learned counsel for the petitioner is stated to be rejected. If it is a decision of the Chairman it was on the mandate of the Chief Minister as also it is void. His submission was that the decision should have been of the Board. This argument of the learned counsel for the petitioner is stated to be rejected. The Board has vide Annexure R. 7 took a decision to accept the tender of respondent No 5. The Board is a statutory autonomous body. 53. From the post tender offer of the petitioner discussed hereinabove on behalf of an undisclosed consumer it appears that the petitioner is not the real person interested; some one is playing behind the curtain; under the mask of public interest, the petition has been filed, though the petitioner was one of the tenderers, to avoid the probability to meet the question of locus standi It is strange that even in the notice for demand of justice (Annexure P. 6) the name of that consumer is not disclosed to indicate the bonafides. 54. As an upshot of the foregoing discussion the petition does not merit to be allowed It is accordingly dismissed with costs. Counsel's fee Rs. 500/- it certified. Petition dismissed.