M. K. S. Engineering Pvt. Ltd. v. State of M. P. — 1999 DIGILAW 685 (MP)

ORDER 1. By this Writ Petition, filed under Articles 226 and 227 of the Constitution of India, petitioner prays for quashing of the decision of the Empowered Committee dated 5th December, 1998 (Annex. P-11) whereby, it decided to award the work of de-weeding to respondent No.5 M/s. Dharti Dredging & Constitruction Ltd. Petitioner further prays for quashing of the minutes of the Empowered Committee dated 16.12.1998 (Annex. P-13) whereby, it rejected the representation submitted by the petitioner, complaining grant of contract to respondent No.5. Further prayer made by the petitioner is to issue a writ in the nature of Mandamus to forebear respondents No.1 to 4 in awarding contract of de-weeding of Upper and Lower Lakes at Bhopal to respondent No.5, in pursuance of the tender notice dated 5.12.1998. Petitioner further prays for issuance of a writ in the nature of Mandamus commanding respondents No. I to 4 to award the contract in question to the petitioner. 2. The Environmental Planning and Co-ordination Organisation (hereinafter referred to as the 'EPCO' for brevity), is an instrumentality of the State under the Housing & Environment Department and it has a Project named as 'Bhoj Wetland'. Its Nork is conservation and management of Lakes at Bhopal. Said Project has been provided financial assistance by the Government of Japan under Overseas Economic Cooperation Fund. Notice inviting applications for, pre-qualification of firms/contractors for the de-weeding work of Upper and Lower Lakes of Bhopal was issued and according to the notice, weightage was to be given to the experience of the firm and their associtates in the relevant field. Petitioner, respondent No.5, one Coastal Marine Co. Mumbai and M/s. TTG Industries, Chhenai, submitted their offers. By communication dated 13.5. 1998 (Annex. P- 1) petitioner was informed that it has pre-qualified and short-listed for the execution of de-weeding work in Upper and Lower Lakes of Bhopal, under Bhoj Wetland Project. Further, by letter dated 22/23.6. I 998 (Annex. P- 2), petitioner was informed that in case it is interested to participate in the tender, it should apply for the same. Aforesaid communication informed the petitioner that tenders shall be opened for sale between 30th June 1998 to 6th July, 1998. It further stated that the last date for submission of tender was 14.7.1998 and technical bids shall be opened on the same day i.e. 14.7.1998. Petitioner obtained the tender document and submitted their offer. Aforesaid communication informed the petitioner that tenders shall be opened for sale between 30th June 1998 to 6th July, 1998. It further stated that the last date for submission of tender was 14.7.1998 and technical bids shall be opened on the same day i.e. 14.7.1998. Petitioner obtained the tender document and submitted their offer. Description of works according to the tender form was "Deweeding of Upper and Lower Lakes at Bhopal". According to the said form, for Conservation and Management of Lakes at Bhopal, a Project known as "Bhoj Wetland Project" has been taken up from financial assistance of Overseas Economic Corporation Fund, Japan. According to the tender form, Environmental Planning & Coordination Organisation (EPCO) was identified by the Govt. of M.P. to co-ordinate, monitor, implement and get executed the proposed work. 3. The bidding documents consisted of various volumes and Section 4 of the same pertained to technical qualification. Para 9.2. specified that bids which shall not be substantially responsive to the requirement of the bids document shall be rejected. Clause 21 of the tender document provided for submission of the bid in 3 separate envelopes, the first one was to contain the earnest money, the second the terms and conditions and the third financial offer i.e. envelopes No. A, Band C respectively. According to the tender form, the EPCO was to open the cover B containing technical bids. Clause 28.1 of the tender, document inter alia provided that prior to the detailed evaluation of the bids, the EPCO will determine whether each bid is substantially responsive to the requirement of the bidding document. Expression "Substantially Responsive" has been explained in Clause 28.2 of the tender document which states that a substantially responsive bid is one which conforms to all the terms, conditions and specification of the bidding document without material deviation or reservation. According to the tender document, a material deviation or reservation is one which affects in any substantial way the scope, quality or performance of the work or which limits in any substantial way, inconsistent with the bidding document, the EPCO's right or the bidders obligation under the contract. Clause 28.3 of the tender document provides that if a bid is not substantially responsive to the requirement of bidding document, it will be rejected by the EPCO and may not subsequently be made responsive by the bidder having corrected or withdrawn the non-conforming deviation or reservation. Clause 28.3 of the tender document provides that if a bid is not substantially responsive to the requirement of bidding document, it will be rejected by the EPCO and may not subsequently be made responsive by the bidder having corrected or withdrawn the non-conforming deviation or reservation. Tender document, contemplates evaluation and comparison of only those bids which have been determined to be substantially responsive to the requirement of the bidding document. Clause 31 of the tender document provided for award of the contract to the bidder whose bid has been determined to be substantially responsive to the bidding documents and who have offered the lowest evaluated bid, provided further, that the bidder has capability and resources to carry out the contract effectively. Clause 31 of the tender document further provided that the methodology proposed, the equipment identified for the work, the technical capacity and the technical bid etc. were to be examined by a Committee of experts for selection of suitable bidder for the work. 4. Technical Evaluation and Tender Approval Committee (TE & T AC) of Bhoj Wetland held its meeting on 8.7.1998 and the sub-committee was authorised to decide the detailed criteria and evaluate the bids by the petitioner and others. It seems that the sub-committee so constituted for technical analysis of bids submitted its report which was placed for consideration before the TE & TAC on 17.8.1998 and it found that the bid of respondent No.5 is non-responsive. For coming to the aforesaid conclusion, the TE & TAC took into consideration that respondent No. 5 proposed to deploy a deweeding machine with a grab attachment, which would lead to disturbance of bed soil and the pre bid minutes specifically forbidden the bidders from using excavators or dredgers. The TE & T AC further took into consideration that the suitability of conceptual composite weed harvester for removal of emergent and submerged weeds could not be verified as the bid did not contain any technical details. It further found that the sketch titled conceptual composite weed harvester submitted during the technical presentation did not satisfy the committee. It further found that the tender of respondent No.5 did not contain any specification of the machinery that was proposed for removal of Algal blooms as its design is in the conceptual stage. It further found that the sketch titled conceptual composite weed harvester submitted during the technical presentation did not satisfy the committee. It further found that the tender of respondent No.5 did not contain any specification of the machinery that was proposed for removal of Algal blooms as its design is in the conceptual stage. After saying so, the TE & T AC held that the bid of respondent No.5 be treated as non-responsive. The TE & T AC further found the bid of another bidder namely M/s. COMACO to be also non-responsive. However, the TE & T AC in its meeting did not make final decision and it resolved that the technical bids examined by the sub-committee be examined by the experts of the relevant field of the Project Management Consultant (PMC) as well. Ultimately it resolved that the final decision would be taken in the next TE & T AC meeting which would be attended by the experts of PMC. 5. Matter for award of tender for de weeding was then placed for consideration before the Empowered Committee of Bhoj Wetland Project on 22nd September, 1998. It consisted of senior officers of the State Government, Financial Institution, Bhopal Municipal Corporation, Bhoj Wetland Project etc. The Empowered Committee on the said date decided that all the three firms i.e. the petitioner, respondent No.5 and COMACO be given one more opportunity to clarify the uncleared items in their technical proposal and the firms be communicated the reasons for non-acceptability of their methodology/equipment and they further be asked to provide alternative methodology and equipment. The Empowered Committee further resolved to authorize the TE & T AC to open the price bids if atleast two firms are found responsive, based on reply received. Empowered Committee further resolved that in case a single tender is found responsive, the matter be placed before the Empowered Committee for decision. In pursuance of the aforesaid decision of the Empowered Committee, the meeting of TE & T AC was held on 7.10.1998 and the Committee found that COMACO have not given any acceptable response. As regards respondent No.5, the TE & T AC found that it has not given any acceptable response and in its Opinion, they are still non-responsive to tender conditions. As regards the proposal of the petitioner, the Committee found the same to be sound. As regards respondent No.5, the TE & T AC found that it has not given any acceptable response and in its Opinion, they are still non-responsive to tender conditions. As regards the proposal of the petitioner, the Committee found the same to be sound. This Committee took note that since the work depends upon deployment of proper equipment, for which the Committee members did not have any experience, it suggested for visit of one administrative head and two technical persons to the site where equipments are in operation. 6. The award of contract thereafter came up for consideration before the meeting of the Empowered Committed on 29th October, 1998 and it decided to open all the three bids after taking undertaking from the respective tenderers that they would carry out deweeding operation as per manner prescribed in the tender. It further resolved that the financial bid submitted on 10.8.1998 by the bidders would not be allowed to be altered. Award of the work of deweeding of Lower and Upper Lakes was then placed before the TE & T AC on 20.11.1998 and it decided to obtain revised sealed offers from the petitioner and respondent No.5 and it resolved to consider the price bids in the next TE & T AC meeting. However, when the matter came up for consideration before the TE & T AC in its meeting held on 26.11.1998 it decided to cancel calling of revised price bids. It further resolved as follows: "The TE & T AC viewed the video cassettes of proposed equipment and methodology of both M/s. MKS Engg. and M/s. Dharti Dredging and discussed the technical aspects of the 2 tenders in detail. It was highlighted that the deweeding sub-project is of sensitive nature and needs careful selection of the suitable firm to take up the work. The firm M/s. MKS which is substantially responsive to the tender specification has no previous experience in marine operations. On the other hand the firm M/s. DDC having previous experience in allied operations of dredging did not comply to the tender specifications fully. Their track record during the Lower lake trial dredging was not satisfactory. After lengthy discussions the committee could not reach a consensus and decided to put-up the issue of tender award to the EC for its decision". (Underlining Mine) 7. Their track record during the Lower lake trial dredging was not satisfactory. After lengthy discussions the committee could not reach a consensus and decided to put-up the issue of tender award to the EC for its decision". (Underlining Mine) 7. As resolved by the TE & T AC in its meeting on 26.11.1998, the matter was placed before the Empowered Committee in its meeting held on 5.12.1998. On the said date, the Empowered Committee resolved as follows :- "Decision on tender award for Deweeding– The EC took the interim decision to award the work to the lowest bidder M/s. Dharti Dredging and Construction Ltd. However, looking at the inconsistencies in ~he rates quoted for the various items the EC observed that there was scope for price reduction and M/s. Dharti should be asked to submit the final reduced price bids along with their jurisdiction for each of the items. This should be completed as soon as possible and put up to EC for its final decision." It seems that aggrieved by the aforesaid decision of the Empowered Committee, petitioner submitted representations dated 14.12.1998 and 15.12.1998. Aforesaid representations were placed for consideration before the meeting of the Empowered Committee on 16.12.1998. It rejected the representations of the petitioner and awarded the work to the lowest tenderer i.e. respondent No.5. While resolving so, it held as follows :-" Decision on tender award for Deweeding – The representations dated 14.12.1998 and 15.12.1998 of M/s. MKS Engineering submitted to various members of the E.C. was discussed at length in the Empowered Committee. Regarding the representation dated 14.12.1998, the E.C.' s view was that the technical points in all the 3 bids had been adequately considered by the E.C. On the basis of documents submitted by the parties, the E.C. had found all the 3 bids responsive and decided to negotiate with the lowest bidder as per OECF norms." 8. Mr. Ravindra Shrivastava appears on behalf of the petitioner, respondents No. I to 4 are represented by Sri R.N. Singh, whereas, respondent No.5 is represented by Sri A.G. Dhande. Mr. Ravindra Shrivastava, appearing on behalf of the petitioner submits that the bid of respondent No.5 being not substantially responsive to the requirement of bidding documents, it was fit to be rejected on this ground alone and the petitioner ought to have been awarded the work. Mr. Ravindra Shrivastava, appearing on behalf of the petitioner submits that the bid of respondent No.5 being not substantially responsive to the requirement of bidding documents, it was fit to be rejected on this ground alone and the petitioner ought to have been awarded the work. In this connection, Sri Shrivastava has drawn my attention to Clause 28.1 of the tender document which inter alia provides that prior to the detailed evaluation of the bids, the EPCO will determine whether each bid is substantially responsive to the requirement of bidding document. He has further drawn my attention to Clause 28.3 of the tender document which enjoins that if the bid is not substantially responsive to the requirement of bidding documents, it will be rejected by the EPCO and may not subsequently be made responsive by the bidder having corrected or withdrawn the nonconforming deviation or reservation. He points out that evaluation and comparison of bids was limited to only those bids which have been determined to be substantially responsive and in this connection, he has drawn my attention to Clause 30.1 of the tender document. He further submits that the contract could have been awarded to the bidder whose bid has been determined to be substantially responsive and he contends that the bid of respondent No.5 being not substantially responsive, award of contract in their favour is in the teeth of Clause 31.1 of the tender document. In support of his submission, he has placed reliance on the Judgment of the Supreme Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. AIR 1979 SC 1628 . My attention has been drawn to the following passage from paragraph 34 of the said Judgment :- "34. 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 a 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 IInd class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for 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 IInd class restaurant or hotel, it denied equality of opportunity to others similarly situate in the matter of tendering for the contract. There might have been 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 precluded 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 elegibility, was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and 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." 9. Another decision on which Sri Shrivastava has placed reliance is the Judgment of the Supreme Court in the case of Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. and Others (1997) 1 SCC 53 , and my attention has been drawn to para 5 of the said Judgment, which reads as follows :- "5. It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates (appellant herein) is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds 1 and 2, which we have indicated hereinabove, are more fundamental than the third ground upon which the High Court has allowed the writ appeal." 10. Mr. R.N. Singh, however, appearing on behalf of respondents No.1 to 4 submits that the very assumption of the petitioner that the bid of respondent No.5 was not substantially responsive is unfounded on fact. Respondents No.1 to 4 have stated in paragraph 6 of the return that' 'Empowered Committee had taken decision on 5.12.1998 to award the contract to respondent No.5 being the lowest substantially responsive bidder." 11. Respondents No.1 to 4 have stated in paragraph 6 of the return that' 'Empowered Committee had taken decision on 5.12.1998 to award the contract to respondent No.5 being the lowest substantially responsive bidder." 11. I have gone through the proceeding of the meeting of the Empowered Committee dated 5.12.1998. Infact, the same has been quoted in the preceding paragraphs of the Judgment. Although, on the said date, the Empowered Committee took 'interim decision' to award the work to respondent No.5 but it has nowhere stated that the bid of respondent No.5 was substantially responsive. It is relevant here to state that TE & T AC in its meeting held on 7.10.1998, on consideration of the materials has found that respondent No.5 is not responsive to tender condition. Further the minutes of the meeting of the TE & T AC also shows that the petitioner's offer was found to be substantially responsive but respondent No.5 did not comply to the tender specification. Thereafter, as stated carlier, the matter was placed before the Empowered Committee in its meeting held on 5th December, 1998, which decided to grant the award to respondent No.5. 12. From the reading of the minutes of the meeting of the TE & TAC, it is apparent that petitioner although was found substantially responsive to the tender specification but held to have no previous experience in Marine operation. As regards respondent No.5, it was found that they did not comply with the tender specification fully but they had experience in allied operation. TE & T AC has further found in its meeting held on 26.11.1998 that their track record during the lower Lake trial dredging was not satisfactory. Therefore, at no point of time respondent No.5 has been found to be substantially responsive by the TE & TAC. Minutes of the meeting of the Empowered Committee dated 5.12.1998 although directs for award of contract to respondent No.5, but infact it has nowhere held respondent No.5 to be substantially responsive. In view of what has been stated above, the stand taken by respondent Nos. 1 to 4 in the return that Empowered Committee found respondent No.5 to be substantially responsive, is not borne out from the records. 13. Mr. R.N. Singh and Mr. In view of what has been stated above, the stand taken by respondent Nos. 1 to 4 in the return that Empowered Committee found respondent No.5 to be substantially responsive, is not borne out from the records. 13. Mr. R.N. Singh and Mr. A.G. Dhande alternatively submit that when the Empowered Committee had decided to award contract to respondent No.5, it implies that it had found respondent No.5 to be substantially responsive. As stated earlier, the sub-committee appointed by the TE & TAC as also the TE & TAC have found the bid of respondent No.5 not to be substantially responsive and for that purpose, assigned various reasons. Empowered Committee being the superior body competent to take decision on the question of award of contract possessed power to disagree with the same but in my opinion, for the said purpose, they are required to assign reasons. In any view of the matter, when a award of contract is questioned in a Court of Law, such reason is required to be placed so that the Court exercising power of judicial review could examine about the correctness of decision making process. In my opinion, when the TE & TAC had given various reasons to hold that the bid of respondent No. 5 is not substantially responsive, Empowered Committee was under an obligation to consider the same before over-ruling its opinion. This does not seem to have been done nor any material has been placed before this Court, which weighed with the Empowered Committee to take a contrary' view excepting a bald statement in the return that the bid of respondent No. 5 was lowest and substantially responsive. Thus, I find substance in the submission of Sri Shrivastava that the bid of respondent No.5 was not held to be substantially responsive by the Empowered Committee. 14. Once it is held so whether respondents No.1 to 4 lacked competence to award the contract to respondent No.5 on the ground that their bid is the lowest is the next question which needs attention. Clause 9.2 of the tender document (Annex. P-3) stipulated rejection of the bid which are not substantially responsive to the requirement of bid document. Clause 28.1 of the tender document provides for detailed evaluation of the bids by the EPCO to determine whether each bid is substantially responsive to the requirement of bidding document. Clause 9.2 of the tender document (Annex. P-3) stipulated rejection of the bid which are not substantially responsive to the requirement of bid document. Clause 28.1 of the tender document provides for detailed evaluation of the bids by the EPCO to determine whether each bid is substantially responsive to the requirement of bidding document. What is substantially responsive bid has been explained in Clause 28.2 of the tender document and Clause 28.3 clearly provides that if the bid is not substantially responsive to the requirement of bidding document, it will be rejected by the EPCO and may not subsequently be made responsive by the bidder having corrected or withdrawn the non-conforming deviation or reservation. Clause 30.1 in no uncertain terms provides that only those bids shall be evaluated and compared which have been determined to be substantially responsive to the requirements of bidding documents. The TE & TAC having not found the bid of respondent No.5 substantially responsive and nothing having been placed on record to show that the Empowered Committee found the bid of respondent No.5 substantially responsive or the reasons for the same, in view of clear stipulation in Clause 30.1 of the tender document, bid of respondent No.5 ought not to have been evaluated and compared. Consequently, they were not entitled for the award of the contract on the ground that their bid is the lowest. 15. Mr. Shrivastava submits that the nature of work to be awarded is not such that mere difference in prices offered by the petitioner or respondent No.5 would have been decisive. In support of his submission, he has placed reliance on a Judgment of the Supreme Court in the case of Raunaq International Limited v. I.V.R. Construction Ltd. & Ors., JT 1998 (9) SC 411, and he has drawn my attention to the following passage from paragraph 11 of the Judgment: "5. A mere difference in the prices offered by the two tenderers mayor may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, I unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into malafide, the Court should not intervene under Article 226 in disputes between two rival tenderers." 16. Mr. R.N. Singh, however, appearing on behalf of respondents No.1 to 4 and Sri A.G. Dhande, for respondent No.5 submit that the bid of the petitioner was also not substantially responsive and in that view of the matter, the Empowered Committee decided to award the contract to respondent No.5, whose offer was the lowest and as such, the decision cannot be faulted. It is relevant here to state that the TE & TAC have found the bid of the petitioner substantially responsive. Empowered Committee has nowhere stated that the petitioner's bid was not substantially responsive. Infact, the Empowered Committee has compared and evaluated the bid of the petitioner as also respondent No.5 which clearly goes to show that the stand, taken by the respondents during the course of argument is untenable in law. In my opinion, when the bid of respondent No.5 was not substantially responsive, in the terms of the tender document itself, offer of respondent No.5 ought not to have been compared and evaluated. Mr. Singh as also Mr. Dhande, appearing on behalf of the respondents have not drawn my attention to any clause in the tender document which provides for relaxation of any condition. In such a situation, I am of the opinion that the decision making process, which led to award of contract to respondent No.5 is vitiated in the eye of law. 17. Mr. R.N. Singh, appearing on behalf of respondents No.1 to 4 appeals for dismissal of the writ petition on the ground that the Project in question is being funded by a foreign agency and in the absence of any allegation of malafide against the Empowered Committee, larger public interest demands that the same may not be interefered with by this Court in exercise of its writ jurisdiction. In support of his submission, Sri Singh has placed relianace on a Judgment of the Supreme Court in the case of Asia Foundation & Construction Ltd. v. Trafalgar House Construction (l) Ltd., and others, (1997) 1 Supreme Court Cases 738, and my attention has been drawn to following passage from paragraph 10 of the said Judgment :- "10. Therefore, though the principle of judicial review cannot be denied so far as exercise of contractual powers of Government bodies are concerned, but it is intended to prevent arbitrariness of favouritism and it is exercised in the larger public interest or if it is brought to the notice of the Court that in the matter of award of a contract power has been exercised for any collateral purpose. But on examining the facts and circumstances of the present case and on going through the records we are of the considered opinion that none of the criteria has been satisfied justifying Court's interference in the grant of contract in favour of the appellant." 18. Mr. R.N. Singh further submits that the ratio laid down by the Supreme Court in the case of Tata Cellular v. Union of India, AIR 1996 SC 11 , clearly prohibits the power of judicial review in the facts of the present case. He submits that contractual powers exercised by Government bodies is not subject to judicial review unless the same is to prevent arbitrariness or favouritism. 19. Mr. Ravindra Shrivastava, appearing on behalf of the petitioner submits that from the reading of the Judgment of the Supreme Court in Tata Cellular (supra), it is discernible that when person who is not eligible in terms of the tender document is awarded contract 'it will be a clear case of arbitrariness and favouritism and in such a case contractual powers exercised by Govt. bodies is subject to judicial review. In this connection, my attention has been drawn to paras 85 and 86 of the said Judgment which reads as follows:- ‘85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power or judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. However, it must be clearly stated that there are inherent limitations in exercise of that power or judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 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. 86. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review." 20. From what has been held in Asia Foundation & Construction Ltd (supra) and Tata Cellular (supra), I have no manner of doubt that the principle of judicial review would apply to the exercise of contractual power to Government bodies in order to prevent arbitrariness or favouritism. While granting contract, the Government bodies are required to adhere to the principles laid down under Article 14 of the Constitution. As held in the case of Ramanna Dayatam Shetty (supra), acceptance of a tender of a person not conforming to the requirement in the tender document is discriminatory and violative of Article 14 of the Constitution of India. In that view of the matter, I am of the opinion that this Court cannot shut its door and decline to exercise the power of judicial review to find out as to whether the action of the Empowered Committee is arbitrary, discriminatory or in teeth of Article 14 of the Constitution of India. 21. Mr. R.N. Singh, lastly, appeals for dismissal of the writ petition on the ground of, what he terms to be larger public interest. He submits that the Project in question is being run on loan from international financial institution and this was to be completed within a period of 18 months. 21. Mr. R.N. Singh, lastly, appeals for dismissal of the writ petition on the ground of, what he terms to be larger public interest. He submits that the Project in question is being run on loan from international financial institution and this was to be completed within a period of 18 months. He further states that the contract has already been awarded to respondent No.5 and mobilisation advance has also been paid to them. He submits that at such a distance of time, interference by this Court shall affect the Project which would not be in larger public interest. 22. Mr. Ravindra, Shrivastava, however, appearing on behalf of the petitioner submits that the Empowered Committee took decision to award the contract to respondent No.5 in its meeting held on 5.12.1998 and the petitioner's representation against the aforesaid action was considered and rejected in its meeting held on 16.12.1998 and the Writ Petition was filed on 25.1.1999. According to him, in such circumstance, the relief sought for by the petitioner cannot be denied on the ground that during the pendency of the writ petition, mobilisation advance has been advanced to respondent No.5 or for that matter some time has been spent in disposal of the writ petition. 23. In the case of Rammana Dayaram Shetty (supra), the Supreme Court after holding that the action of the authority was discriminatory, did not interfere with the award of contract on the ground that the petitioner of the said case approached the Court 'more than 5 months' after the acceptance of the tender of the 4th respondent and during this period the 4th respondent incurred considerable expenditure aggregating to about Rs. 1,25,000/- in making arrangement.' In the facts of the aforesaid case the Supreme Court found that it would be inequitious to set aside the contract at that stage. However, in the said case itself, the Supreme Court sounded a note of caution. In the words of the Supreme Court, 'the position would have been different if the appellant had filed the writ petition immediately after the acceptance of the tender of the 4th respondent but the appellant allowed a period of over 5 months to elapse during which the 4th respondent altered their position." 24. Here in the present case, as stated earlier, the petitioner rushed with the writ petition immediately after the Empowered Committee decided to award the contract to respondent No.5. Here in the present case, as stated earlier, the petitioner rushed with the writ petition immediately after the Empowered Committee decided to award the contract to respondent No.5. Delay in disposal of the case cannot be attributed in the hands of the petitioner. It is a systemic delay. Where a case stands over for argument on account of multiplicity of the business in the Court, the party ought not be prejudiced by that delay. Actus Curiae Neminem Gravabit' i.e. 'the act of the Court shall prejudice no man' is the maxim which guides our discretion. Hence I am not inclined to decline the relief of the petitioner on this ground. 25. Having said so, I find that the TE & TAC has found the bid of the petitioner substantially responsive. It has not found so in respect of respondent No.5. Empowered Committee has considered the bid of the petitioner as also respondent No.5, but before doing so, it has not held that the bid of respondent No.5 is substantially responsive. Empowered Committee in the facts of a given case may overrule the findings of the TE & TAC but its decision has to be based on one or the other germane reasons. Here I find that no such reason has been assigned nor any material has been placed to demonstrate that the Empowered Committee has found the bid of respondent No.5 substantially responsive excepting the bald statement in paragraph 6 of the return that 'the Empowered Committee had taken decision on 5.12.1998 to award the contract to respondent No.5 being the lowest technically responsive bidder." In such circumstance, I deem it expedient that the Empowered Committee reassesses the matter as to whether bid of respondent No.5 is substantially responsive afresh and while doing so, take into consideration the opinion of the TE & TAC and other relevant materials. Petitioner as also respondent No.5 or any other person interested in the award be given opportunity by the Empowered Committee to place their viewpoints on the said question. Empowered Committee shall adjudicate the same and assign brief reasons for its conclusion. Empowered Committee shall then take decision in regard to the award of contract in accordance with law bearing in mind the observation made in this Judgment. 26. In the result, Writ Petition is allowed. Decision of the Empowered Committee dated 5.12.1998 and 16.12.1998 are quashed. Empowered Committee shall adjudicate the same and assign brief reasons for its conclusion. Empowered Committee shall then take decision in regard to the award of contract in accordance with law bearing in mind the observation made in this Judgment. 26. In the result, Writ Petition is allowed. Decision of the Empowered Committee dated 5.12.1998 and 16.12.1998 are quashed. Petitioner as also respondents shall act in the matter as directed above. In the facts and circumstances of the case, there shall be no order as to cost.