S. D. PANDIT, J. ( 1 ) RULE. Mr. S. B. Vakil for respondent No. 3 Mr. Anjaria for respondent no. 4, Mr. Kamal Trivedi for respondent No. 1 and Mr. P. G. Desai for respondent No. 2 waive service of notice of Rule. ( 2 ) B. Kumaraswamy Reddy sole proprietor of M/s B. Kumaraswamy Reddy has filed the present petition to issue a writ a mandamus an/or directions to quash and set aside the entire process of the tender work assigned to respondents No. 3 and 4 by respondent No. 1 gujarat Industries Power Company Ltd. (hereinafter referred to as "gipcl") a public limited Company incorporated under the provisions of Sec. 43-A of the Companies Act. Respondent No. 1 GIPCL is a company constituted to build and operate the power stations and to generate power. They have already set up -and commissioned two power projected. They started the third projected at village Nai-Naroli Taluka Mangrol, District surat. It is a power station with 2 x 125 mw. The construction of the said work was started in the year 1996 and scheduled to be completed and commissioned in June, 1999. In the said power project lignite is to be used a fuel. Said lignite is to be supplied by and from the respondent companys captive mines commonly known as Vastan mines located at a distance of about only 3 kms. from the said power plant. Said power production plant is called as Surat Lignite Power Plant and the power produced by the said company will be used by Gujarat Electricity Board for which a power purchase agreement has already been executed by and between GIPCL as well as GEB. In connection with the said power plant in order to start the actual production it was necessary to develop the mines by undertaking the job of excavation and removal of over burden i. e. , doing the earth work by removing the mud etc. , so that lignite can be exposed, taken out and then transported to the power plant. They therefore, consulted M/s Nirkon-Madras. As per the said prepared plan, it was necessary to remove 32 lakhs cubic mtrs. of overburden and 1 lakh cubic mtrs. of lignite was to be produced during the first year and about 80 lakhs cubic mtrs. of over-burden and about 8 lakhs cubic mtrs. They therefore, consulted M/s Nirkon-Madras. As per the said prepared plan, it was necessary to remove 32 lakhs cubic mtrs. of overburden and 1 lakh cubic mtrs. of lignite was to be produced during the first year and about 80 lakhs cubic mtrs. of over-burden and about 8 lakhs cubic mtrs. of lignite would be required to be produced during the second years. In order to achieve the same, deployment of heavy earth moving equipments were required. Said GIPCL was not owing and possessing the same and had no mining infrastructure and experience when it had decided to start the said work. They therefore, approached the Gujarat Industrial Development Corporation (GMDC) which is a nobal agency for mining in the State, Gujarat Power corporation Ltd. (GPCL) and also neyveli Lignite Corporation (NLC) sometime in November/december 1995 in order to get the names of agencies engaged in and having experience of such type of activities of removing the overburden and production of lignite from the mines. Said corporations gave a list of about 16 persons. Thereafter all the 16 agencies were approached and from those 16 agencies they had short listed 8 parties and the work of removing the overburden of first phase was assigned to respondent No. 3 M/s Sadbhav Engineering after following the tendering process. Accordingly respondent No. 3 started the job in the year 1996 and when the said job for the first phase work coming was closer to the completion it was necessary for GIPCL to finalise the process of awarding a contract for the second phase before September, 1997. Therefore, in the month of April, 1997 they short listed 9 parties out of 16 parties mentioned in Annexure-I whose names were suggested by GMDC and GPCL and NCL. When the present petitioner came to know about the same, he also approached and then the process giving work of the 2nd phase was being worked out an negotiated with all the ten persons. Said 10 parties were asked to forward the original bid documents latest by 17. 8. 1997. But actually out of those 10 parties only 5 parties including the present petitioner, respondents No. 3 and 4 submitted their 2 bids in two parts.- part 1 being techno-commercial bid and part II being commercial bid containing the price/grade/quality. Said 10 parties were asked to forward the original bid documents latest by 17. 8. 1997. But actually out of those 10 parties only 5 parties including the present petitioner, respondents No. 3 and 4 submitted their 2 bids in two parts.- part 1 being techno-commercial bid and part II being commercial bid containing the price/grade/quality. When part II bid documents were scrutinised by the respondent No. 1 it was found that some of those 5 tenderers had incorporated some deviation and hence it was decided to have a discussion with all the five tenderers for techno commercial discussion individually with each of them and accordingly there were discussion with the present petitioner. Thereafter in view of the said discussion it was found that the contract period instead of one year should be extended to 3 years. Accordingly all the 5 tenderers were informed to submit their revised quotations indicating the price implication based on the discussion held during the meeting latest by 7. 6. 1997. Accordingly all the five tenderers including the present petitioners had given their revised bids. In the mean time technical and mining consultants of respondent No. 1 M/s Rheinbraun Engineering who has been engaged for updating and finalising the mining plan suggested that it would he necessary to take out 13 lakhs tons of lignite per year and consequently it would be necessary to remove 150 lakhs cubic metres of overburden every year for meeting the said requirements. Thereafter, respondent No. 1 again approached the five tenderers and the same was discussed with them and they were told that as per the estimates of the mining consultants 150 lakhs cubic metres of over burden was required to be removed per year. At that time all the tenderers had expressed that increase in the quantum of job would require equipment of larger size and higher capacity which in turn would involve more financial capacity on the part of the contractor and the period should be atleast 3 years and preferably of five years. Therefore, they were asked by the respondent No. I to give their bids for three years and five years separately. Accordingly the revised bids were given by all the tenderers including the petitioner on 16. 8. 1997. Then revised bids were opened on 19. 8. Therefore, they were asked by the respondent No. I to give their bids for three years and five years separately. Accordingly the revised bids were given by all the tenderers including the petitioner on 16. 8. 1997. Then revised bids were opened on 19. 8. 1997 and they held meetings individually with each of them, and they were informed that the rates quoted by them were not acceptable to the company and they were given opportunity to give their reconsidered and revised bid by 2. 9. 1997 accordingly. All of them had given the revised bids. When they were opened on 12. 9. 1997 still they were found to be high. They were again requested to reconsider their rates and on that request all the four bidders gave their revised rates and thereafter 2/3rd job of the said contract work was given to respondent No. 3 and l/3rd job work was given to respondent No. 4. ( 3 ) THE petitioner has come before this Court to challenge said contract work given by the respondent No. 1 GIPCL. It is the claim of the petitioner that the petitioner himself is a civil engineering contractor and is engaged in the business of mining and he has worked as a consultant in the same capacity in other states like Rajasthan, Tamil Nadu and karnataka. According to him there are other good companies to carry out the work in question but as no advertisement was issued by the respondent No. 1 inviting global tenders to the contracts, the procedure followed in giving the said contract and is arbitrary illegal and the procedure followed in giving the contract is given a complete go bye of all the settled norms with regard to accepting tenders. It is further the allegation of the petitioner that Vishnubhai V. Patel one of the partners of respondent No. 3 M/s Sadhbhav engineering is a close friend of the then Chief Minister-respondent No. 6 herein and in order to favour said respondent No. 3 the whole procedure in giving a contract was followed and the contract is ultimately given to respondent No. 3 in order to favour him. It is further alleged that the offers of first two tenders were not at all considered and opened and though the respondent Nos. 3 and 4 had given conditional tenders the same were accepted with a view to favour them. It is further alleged that the offers of first two tenders were not at all considered and opened and though the respondent Nos. 3 and 4 had given conditional tenders the same were accepted with a view to favour them. The petitioner contends that said contract is given by following corrupt practice and in the circumstances said giving of contract should be interfered with by this Court by exercising the jurisdiction under Art. 226 of the constitution of India by making the following prayers :"a. Be pleased to admit this petition. B. Be pleased to call for the records and issue a writ of mandamus or any other appropriate writ, order or directions, by setting aside the entire process of tender and restraining the respondents to award contract work order in favour of respondents No. 3 and 4 and if awarded, to quash and set aside the same and further be pleased to direct that all the four tenderers be given equal opportunity to apply their mind and quote the rates and thereafter finalise the tender and further be pleased to direct the respondents, their officers, agents and servants to open the tenders in presence of the tenderers with prior notice of time, place and date for the same further be pleased to direct the respondents to read out the tender conditions in presence of the tenders;c. Pending admission hearing and final disposal of this petition, be pleased to restrain the respondents, their officers and agents from awarding contract of excavation of over burden and excavation of 8 lacs tons of lignite Vastan lignate mines, Surat Lignite Power of respondent No. 3 and if the contract is awarded be pleased to suspend its implementation, operation, execution and enforcement and be pleased to direct the respondents, their officers and agents to maintain status quo as on 11. 9. 1997;d. Be pleased to grant exparte adinterim relief in terms of para (c) herein. E. Be pleased to award the costs of this petition. F. Be pleased to pass such other and further orders as may be deemed fit in the interest of justice. " ( 4 ) RESPONDENTS No. 1, 3, 4 and 6 have-contested the claim of the petitioner by filing affidavit in reply. E. Be pleased to award the costs of this petition. F. Be pleased to pass such other and further orders as may be deemed fit in the interest of justice. " ( 4 ) RESPONDENTS No. 1, 3, 4 and 6 have-contested the claim of the petitioner by filing affidavit in reply. It is contended by the respondents No. 1, 3 and 4 that respondent No. 1 is not a State a contemplated by Art. 12 of the Constitution of India and consequently present petition is not tenable at law. Respondent No. 1 has further contended in the affidavit in reply that the procedure followed by the respondent No. 1 in giving the contract in question was completely in order. It was neither capricious nor arbitrary and present petitioner was permitted to participate in the process of giving contract and accepting the tender and till the date of filing of the present petition, the petitioner had never disputed the procedure followed by respondent No. 1. It seems that only because the petitioner did not get the contract in question he has come forward before this Court and his claim to challenge the said procedure is hit by the principle of estoppel on account of he having participated in the said process of giving contract till the last moment. It is further contended that the petitioner has claimed that he is a reputed contractor in the job in question may not be true in view of the fact that the list of contractor supplied by the madras based agency and other corporations like GMDC and GPCL do not show the name of the present petitioner in the list of 16 contractors. The Madras agency has suggested out of those 16 contractors the names of 3 contractors whereas other 13 names were suggested by other two corporations. It is further contended that the rates quoted by the present petitioner were higher than the other three contractors and final rate at which the contract work is given to respondent Nos. 3 and 4 is far below the rate quoted by the present petitioner even though he was given opportunity to give revised rate before accepting the offer of respondents No. 3 and 4. 3 and 4 is far below the rate quoted by the present petitioner even though he was given opportunity to give revised rate before accepting the offer of respondents No. 3 and 4. From the fact that the petitioner was permitted to participate in submitting his tenders and in the process of consideration of tender inspite of the fact that the petitioners name does not appear in the list of 16 contractors as well as in the list of short listed tenderers clearly show that the respondent no. 1 did not want to favour anybody including the even respondents No. 3 and 4. The procedure followed by the respondent No. 1 in giving the contract in question of the phase-II is quite correct and proper as per the norms to be followed in giving the contract in question. It is further contended that the respondent No. 6 has nothing to do with the respondent No. 1 and there was no interference of whatsoever nature in the said process of giving contract to respondent No. 1. The petitioner has not supplied any material to indicate or show that there is in fact favouritism in favour of respondent No. 3 by the present respondent No. 1. ( 5 ) RESPONDENT No. 4 has contended that the respondent No. 4 has not connection with either respondent No. 3 or respondent No. 6 the Chief Minister. The petitioner has nowhere alleged that respondent No. 4 has got any connection with respondent No. 6 and procedure followed by respondent No. 1 in giving the said contract was accepted by the respondent as well as other tenderers and the said procedure is quite proper and correct and there is no ground to raise any suspicion in giving the contract in question. ( 6 ) RESPONDENT No. 6 has filed his affidavit in reply and he has denied the allegations made against him. He has contended that it has become a fashion to rope in politicians in such matters. Merely because he happens to be a friend to said Vishnubhai Patel it could not be said that respondent No. 3 has got the said contract in question. Respondents No. 1 and 4 have clearly stated that the work of phase-I was already allotted to respondent No. 4 and he has carried the said work to the satisfaction of respondent No. 1. Respondents No. 1 and 4 have clearly stated that the work of phase-I was already allotted to respondent No. 4 and he has carried the said work to the satisfaction of respondent No. 1. The name of respondent No. 3 is appearing in the list of tenderers supplied by these 3 corporations viz. , gmdc, GPCL and NLC. Respondent No. 6 has contended that false and frivolous allegations are made against him and therefore, in the circumstances, the petition should be dismissed with costs and he should be awarded heavy costs from the present petitioners. ( 7 ) THUS all the respondents have disputed the claim of the present petitioner and they prayed for the dismissal of the present petition with costs. ( 8 ) THE petitioner has filed affidavit in rejoinder to the affidavit in reply of respondent no. 1 and in the said affidavit in rejoinder he has stated that the State Government is having 34. 94 per cent of shares on the pattern of other undertakings like GEB, GSFC and gujarat Alkalies and Chemicals Ltd. It has been further stated by him that the Chairman and Managing Director of respondent No. 1 company are the nominees. In the board of directors one each is the nominee of IDBI, ICICI and State Government said claim made by the petitioner his affidavit in reply is not denied by the respondent No. 1 though respondent No. 1 has filed affidavit in sur rejoinder. Therefore, in view of the said facts stated by the petitioner in his affidavit in rejoinder it is quite obvious that State government has got control over the said respondent No. 1 company. As a matter of fact mr. Trivedi learned Advocate for respondent No. 1 had argued the matter strenuously and at length had not fairly raised this contention that respondent No, 1 is not a State as contemplated by Art. 12 of the Constitution. Therefore, I am unable to hold that the contention of respondents No. 3 and 4 that respondent No. 1 is not a State as contemplated by Art. 12 of the Constitution and consequently I am not accepting their contention that present petition under Art. 226 is not obtainable. ( 9 ) ADMITTEDLY the contract in question is given by respondent No. 1 to respondents no. 3 and 4. Respondent No. 1 is not a private individual. ( 9 ) ADMITTEDLY the contract in question is given by respondent No. 1 to respondents no. 3 and 4. Respondent No. 1 is not a private individual. It is a State controlled organization and a public body and does not stands on the same footing as a private person who is free to enter the contract with any person he likes. When the action of the state or a public body in the matter of awarding of a contract is to satisfy that its action excludes arbitrariness and that its action is fair and reasonable. When a contract would either involve expenditure from State exchequer or augmentation of public revenue and consequently discretion in the matter of selection of a person for the award of contract has to be exercised keeping in view the public interest involved in such selection. Therefore, while dealing with the public whether by way of giving jobs or entering into contract or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with the standards or norms which are not arbitraty, irrational or irrelevant. It is, however, very well recognised that certain measure of "free play in the joints" is necessary for an administrative body functioning in an administrative sphere. The principles of judicial review would apply to the exercise of contractual power by the Government bodies order to prevent arbitrariness or favouritism. However, there are inherent limitation in exercise of that power of judicial review. It is expected to protect the financial interest of the State a right is alwaya available to Government body. But the principles laid down in Art. 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Art. 14 if the government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. Judicial question in administrative matters has been to find the right balance between the administrative discretion to decide the matters whether contractual or political in nature of issues of social policy. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. Judicial question in administrative matters has been to find the right balance between the administrative discretion to decide the matters whether contractual or political in nature of issues of social policy. Thus they are not essentially justiciable and the need to remedy any unfairness. Judicial power to review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the Courts ability to quash and administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action. Judicial review is concerned with reviewing not merits of the decisions in support of which the application for judicial review is made, but the decision-making process itself. In the case of Tata Cellular vs. Union of India, AIR 1996 sc 11 the Apex Court has considered all its earlier decisions as well as the decision of the English and American Courts and has laid down the principles regarding exercising of judicial review in para 113 on page 32 as under :"the principles deducible from the above are : (1)- the modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary experties which itself may be fallible. (4) The terms of invitation to tender cannot be open to judicial scrutiny because the invitation to tender is the realm of contract. Normally specaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. "at this juncture I would like to mention that both the sides i. e. , the petitioner as well as the respondent has cited before me various authorities in respect of their rival contentions. All those authorities are considered by the Apex Court in the case of Tata cellular vs. Union of India (Supra) and thereafter the principles are deduced as quoted above. Said principles are further confirmed and affirmed by the Apex Court in the case of New Horizons Limited and Anr. vs. Union of India and Ors. , reported in 1995 (1) SCC 178 and that case in para 18 on page 490, said principles were affirmed. Therefore, in the circumstances I am not referring to each and every case cited by both the sides. It is settled law that every cases has to be read with the facts of that case and the decision in the said case depends upon the facts of that case. Principles enunciated are quoted above and those principles are covering the cases cited by both the sides and therefore, it is not necessary to refer to each of the cases and therefore, I am not referring to each case cited by both the sides. Therefore, bearing the above principles in mind I proceed to consider the action of respondent No. 1 in giving contract to the respondents No. 3 and 4 and various contentions raised by the petitioner to challenge the said action of respondent No. 1. ( 10 ) THE first contention of the present petitioner is that the respondent No. 1 had not issued advertisement calling for the tenders. It is vehemently urged before me by Mr. ( 10 ) THE first contention of the present petitioner is that the respondent No. 1 had not issued advertisement calling for the tenders. It is vehemently urged before me by Mr. Oza for the petitioner that when the work in question involves crores of rupees it was expected that advertisement should be given inviting global tenders and the procedure followed by the respondent No. 1 is not at all fair and reasonable or irrational. It is very pertinent to note that the respondent No. 1 has categorically stated in his affidavit in reply that the petitioner started at village Nai-Naroli Taluka Mangrol District Surat setting up of power station with 2 x 125 MW in the year 1996 and phase-I was commissioned in June, 1996 and in the said power station lignite was to be used as fuel and said lignite is to be excavated. The claim of the respondent No. 1 is that they had started the said projecl in the year 1996 and phase-1 was commissioned in June, 1996 and was about to be completed by September, 1997 is not at all in dispute. The work of phase-1 is admittedly assigned or given in contract by the respondent No. 1 by following the procedure. Admittedly the assignement of work of phase-I given by the respondent No. 1 was not challenged either by the present petitioner or by any other contractors or anybody else is an admitted fact. The respondent No. 1 has taken over said contract of setting up power station at village Nai Naroli Taluka Mangrol. It had decided to take the help of M/s M. S. Rhembraun as the consultant and thereafter with the help of GMDC, GPCL and NLC. they collected information of the contractors who worked in the field in which they wanted the work in question. These three agencies which are independent agencies and corporate bodies and one of them is situated in Tamil Nadu. Now these corporate bodies gave list of persons suggesting the names of 16 persons and from those 16 persons they had short listed 9 contractors with the help of their consultants. The Chairman of the company then invited those 9 persons to offer their tenders. Now admitedly in those 9 persons, the name of the present petitioner was not figuring. Now these corporate bodies gave list of persons suggesting the names of 16 persons and from those 16 persons they had short listed 9 contractors with the help of their consultants. The Chairman of the company then invited those 9 persons to offer their tenders. Now admitedly in those 9 persons, the name of the present petitioner was not figuring. It is an admitted fact that when the petitioner came to know about inviting of the said tenders and though the petitioner was not invited by the respondent No. 1 to participate in the said procedure of participating in the tenders, when he approached the respondent No. 1 and showed their willingness to participate in the said proceedings, the petitioner was permitted by respondent No. 1 to participate in the said proceedings and he had actually participated in the same. It is Very pertinent to note that from the averments made by the petitioner it would be quite clear that the petitioner has taken part in each and every step of the said procedure of selecting the tenders right from 17. 5. 1997 till 12. 9. 1997. The very fact that though the petitioner was not invited to participate in the said tender selecting procedure he was permitted to participate and allowed to participate at every stage clearly indicates that said proceedings was quite transparent and the respondent No. 1 did not want to do anything secretly and clandestinely. ( 11 ) GENERALLY in cases in which the State or public authority considers it necessary to dispose of a property in order to achieve public interest it is expected that the state of public authority is to sell the property by public auctions or by inviting tenders. Though that is treated as an ordinary Rule, it is not an invariable Rule. The departure from the said rule if the situation so demands is accepted and if the reasons for departure are rational and is not suggestive of any discrimination. Though that is treated as an ordinary Rule, it is not an invariable Rule. The departure from the said rule if the situation so demands is accepted and if the reasons for departure are rational and is not suggestive of any discrimination. In the instant case after the respondent had undertaken the project of Surat Lignite Power Plant it had approached GMDC, GPCL and nlc to suggest the names of agencies engaged in and having experience in the work of removal of overburden and taking out lignite from the mine and the agencies suggested by them were invited for giving the contract work of first phase and the some agencies were invited to give tenders of second phase. It is very pertinent to note that it is not the claim of the petitioner either in the petition or in the affidavit in rejoinder that the Respondent no. 1 ought not to have approached GMDC, GPCL and NLC to get the information about the agencies who could undertake the work of removing overburden and taking out lignite from the mines. It is also necessarry to mention here that it is not the claim of the petitioner that the agencies suggested by those 3 corporate bodies were not at all fit for carrying out the work in question. The petitioner has also unequivocally admitted that when he approached to participate in the tender proceedings, he was allowed to participate and he had participated through out the process and till the final decision. Therefore, the conduct of the respondent No. 1 in not inviting tenders by giving an advertisement could not be said to be unnatural or exceeding its power. It could not also be said that the procedure followed by respondent No. 1 in not calling tenders would not have been followed by a reasonable and prudent person. ( 12 ) IT is,the claim of the petitioner that the as per the terms of the tender the tenderer was not to make conditional offer and inspite of this the respondent No. 1 has accepted conditional offers of respondents No. 3 and 4. In support of this Mr. O/,a learned advocate for the petitioner drew my attention to pages 55, 76, 126. Page 55 is pan of tender form which was filed by respondent No. 3 Sadbhav Engineering Limited. In support of this Mr. O/,a learned advocate for the petitioner drew my attention to pages 55, 76, 126. Page 55 is pan of tender form which was filed by respondent No. 3 Sadbhav Engineering Limited. This page 55 contains the note of the tender form and it reads as under:"bidder is registered to quote rates strictly as per the terms and conditions mentioned in tender document. Any conditional tender will not be entertained and will be rejected. In view of the above note of Tender forms it is quite obvious that conditional tender was to be rejected and there is no dispute as regards this position. But what is to be found out is as to whether the respondent No. 1 has accepted conditional tender and whether respondent No. 3 and respondent No. 4 have filed conditional tenders. Mr. Oza learned adovcate for the petitioner relies on the following contentions of page 76 as indicating conditional tender offered by respondent No. 3. "page 76 "the contractor is expected to achieve a progress of 15 Lal M-3 from first month i. e. , October, 1997 onwards or such pro-rata, reduced target depending upon quantities awarded to us. In that event we would request that the acceptance of our offer be confirmed at least by 31. 8. 1997. "the above contends are of the covering letter written by the respondent No. 3 on 16th august, 1997 the respondent No. 1 while submitting revised bid after the meeting of 8. 8. 1997. That would be quite clear from the first para of the letter which runs as under :"we submit herewith in quadruplicate (one original and three copies of documents) the revised bid based on discussion in the meeting held at Baroda on 8. 8. 1997 in Gujarat Industrial Power Co. Ltd. "therefore, these contends are not part of the tender bid. Apart from this those contends could not said to be a conditional bid/offer. In view of the large quantity of work and to be carried in short span time a request is made by the bidder to take early decision. The bidder neither specifically nor by implication claims/suggests that the bid is not offered before 30. 8. 1997 the bidder withdraw his bid. 13. The page 126 is a letter dated 7th June, 1977 by the respondent No. 4. The bidder neither specifically nor by implication claims/suggests that the bid is not offered before 30. 8. 1997 the bidder withdraw his bid. 13. The page 126 is a letter dated 7th June, 1977 by the respondent No. 4. This letter is also in connection with the revised price bid after the meeting of 29. 5. 1997. In this letter the respondent No. 4 has written about quantity of work and on which Mr. Ozas reply is as under : "quantity : We are agreeable to carry out 40 lakhs Cu. M. work. " Mr. Oza learned advocate for the petitioner urged that quoting the quantity the respondent No. 4 had put the condition. He also further urged that inspite of the incapacity to cany out more than 40 lacks Cu. M. the respondent No. 4 has been awarded work of more than 50 lakhs and that indicates favouring the respondent No. 4. It is an admitted fact that till June the contract work period was to be of one year and removal of 80 lakhs cubic metre over burden and excavation of 8 lakhs cubic metre of lignite. When the work was finally awarded in October, 1997 the period of work is 5 years for removal of 7. 5 lakhs cubic metre over burden and excavation of 11 lakh cubic metre of lignite per year. Now in view of rise in span of time as well as the quantity of extracting lignite the granting of contract for the period of 5 years for excavating 50 lakhs cubic meter lignite could not be said to be a case of favouritism. Similarly quoting the quantity of 40 lakhs cubic meter could not be said to be putting of condition or conditional bid. ( 13 ) MR. Oza learned advocate for the petitioner further drew my attention to the following contents on page No. 59 of the respondent No. 1 s affidavit in reply. "on scrutiny it was noticed that 5 tenderers fulfilled the qualifying criteria. However it was also noticed that some of the tenderers had incorporated certain deviations. "he contended that this clearly shows that bids were conditional and that the respondent wanted favour respondent No. 3 and 4 and hence allowed them in further proceeding though they had certain deviations. It would be proper to refer here the respondent No. 1s General Managers affidavit in sur rejoinder. "he contended that this clearly shows that bids were conditional and that the respondent wanted favour respondent No. 3 and 4 and hence allowed them in further proceeding though they had certain deviations. It would be proper to refer here the respondent No. 1s General Managers affidavit in sur rejoinder. It reads as under :"as regards the allegation that it was only the respondent No. 3 who had given conditional offer at the outset, I humbly submit that the petitioner has unnecessarily and with ulterior motive attempted to confuse the two altogether different aspect viz. (a) variations, and (b) conditional offer, whereas in fact the said two aspects are completely distinct and unrelated. More particularly in light of the fact that under Clause (i) of Clause No, 1:02:01 the bidder were permitted to incorporate deviations from tender specifications and clause 1-11 contemplated issuance of classifications/letters which pre supposes variations/ deviated by bidders from tende specifications and clause 1-11 contemplated issuance of clarifications which presupposes variations/deviations by bidders from tender specifications. "then the said Deputy General Manager of the respondent No. 1 has stated that deviations were not given only by respondent but by others also. He has also specifically stated that there was no condition in the bid of respondents No. 4 and 3. Deviations could never be said be conditional bids. The next sentence of the portion of affidavit in page 59 is as under: in views of this (deviations by bidder) it was though fit by the respondent company to hold meetings with the said tenders" {protion in bracket is supplied by me for proper reading} admittedly after getting the bids before 31. 5. 1997 the respondent had meetings with all five tenderers and there were negotiation with them. As per the suggestions of the tenderers the period as well as quantity was changed. The petitioner himself has clearly admitted in his petition that he was called and allowed to participate on each and every stage of the proceedings of accepting tender right from 31. 5. 1997 to 12. 9. 1997. ( 14 ) NOW apart from this it is settled legal position that the consideration of tender bid with deviation is not an illegality unless it could be shown to have caused prejudice to the person making compalint about it. In the case of G. J. Fernandez. 5. 1997 to 12. 9. 1997. ( 14 ) NOW apart from this it is settled legal position that the consideration of tender bid with deviation is not an illegality unless it could be shown to have caused prejudice to the person making compalint about it. In the case of G. J. Fernandez. (M/s) vs. State of karnatak, AIR 1990 SC 959 in para 16 on page 963 has observed as under :"assuming for purposes of argument that there has been a slight deviation from the terms of the MLC, it has not deprived the appellant of its right to be considered for the contract on the other hand its tenderer has received due and full consideration. If for the delay in filing one of the relevant documents. MLC is also found to be qualified tender for the contract no injustice can be said to have been to the appellant by the consideration of its tender side by side with that of MLC and in the KPC going in for a choice of the matter on the merits. " ( 15 ) IF the averments made by the petitioner in para Nos. 6 to 12 are seen then it would be quite clear that all the tenderers including the petitioner were given one and the same treatment, there is no averment made by the petitioner in his whole petition that the respondent No. 1 has not treated the petitioner and the respondent Nos. 3 and 4 in the same manner. There is pleading or statement of any fact to show that the respondent No. 1 has given any favourable treatment to the respondents No. 3 and 4. The fact that all the tenderers were treated alike and the same manner shows that the conduct of the respondent No. 1 was far reasonable. This equal treatment and inspite of petitioners name was not recommended by the expert, allowing the petitioner to compete and participate in the proceeding of accepting tender shows that the conduct of the respondent no. 1 was quite transparent. ( 16 ) NO doubt the petitioner has alleged that the respondent No. 3 is not quite competent and has no machinery and equipment to compete contract work. That claim is denied by the respondent No. 1 as well as respondent No. 3. The very fact that the respondent No. 3 is recommended by expert show its competency. ( 16 ) NO doubt the petitioner has alleged that the respondent No. 3 is not quite competent and has no machinery and equipment to compete contract work. That claim is denied by the respondent No. 1 as well as respondent No. 3. The very fact that the respondent No. 3 is recommended by expert show its competency. The respondent No. 3 got the job of first phase and has completed the same to the satisfaction of the respondent no. 1. Therefore, in the above circumstances petitioners claim about incompetency could not be accepted. ( 17 ) THE petitioner has also alleged that his rates were lower rates hut that stands falsified by the actual rates given by the petitioner and respondent Nos. 3 and 4. The rates of the three tenders are as under : Rate quoted on Rate quoted on Rate quoted on 19. 8. 1997 2. 9. 1997 12. 9. 1997 Petitioner Rs. 53. 00 Rs. 45. 00 Rs. 46. 50 Per M-3 Per M-3 Per M-3 Respondent-3 Rs. 52. 00 Rs. 43. 00 Rs. 43. 69 Per M-3 Per M-3 Per M-3 Respondent-4 Rs. 54. 00 Rs. 44. 50 Rs. 43. 28 Per M-3 Per M-3 Per M-3 then on 12. 9. 1997 the petitioner and respondent Nos. 2 and 3 and 4 tenders were requested to further reduce their rates but the petitioner refused to reduce as against this both respondents No. 3 and 4 reduced the rate and they offered the rate of Rs. 40. 00 per m-3. That the respondent Nos. 3 and 4 were the parties who had given the lowest rate. ( 18 ) IT is further alleged by the petitioner that one of the partners of respondent No. 3 is a friend of respondent No. 6 the then Chief Minister of Gujarat State and the contract in question is given to respondent No. 4 at the instance of respondent No. 6. There is no dispute of the fact that partners of respondent No. 2 viz. Vishnubhai Patel is a friend of respondent No. 6. But merely because he happens to be a friend of the then Chief Minister it could not be said that contract in question was given to him. There is no dispute of the fact that partners of respondent No. 2 viz. Vishnubhai Patel is a friend of respondent No. 6. But merely because he happens to be a friend of the then Chief Minister it could not be said that contract in question was given to him. From the above discussion of the material on record it would be quite clear that the respondent No. 4 was nominated by the authorities who suggested the agencies to carry out the work in question. The rates given by the respondent No. 4 were lowest rate. Respondent No. 4 has carried out the work of phase-1 satisfactorily. Therefore, in the circumstances it could not be said that the work allotted to respondent No. 4 is on account of friendship between respondent no. 6 and one of the partners of respondent No. 4. There is nothing on record to show that respondent No. 6 could have any influence of respondent No. 1 which is a corporate body. ( 19 ) THEREFORE, in view of all the above discussion it is very difficult to hold that the contract in question given by respondent No. 1 to respondents No. 3 and 4 was given without following regular norms. It could not be said that there was any arbitrariness in selecting respondents No. 3 and 4 for giving contract in question. The act of respondent no. 1 in giving the contract to respondents No. 3 and 4 could not be said not an act of reasonable and prudent man. Selection of respondents No. 3 and 4 could not be also said to be against public interest. Thus I hold that there is no merit in this petition and the same deserves to be rejected. I therefore, reject the same. Petitioner to pay the costs of each of the respondents. Rule discharged. Interim relief stands vacated. ( 20 ) LEARNED advocate for the petitioner urges to continue interim relief for one week more. But in view of the dismissal of the petition on merits, I do not find any reasons to accept the said submission. I therefore, reject the same. .