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Madhya Pradesh High Court · body

2002 DIGILAW 822 (MP)

A. K. Kinra v. State of M. P.

2002-08-29

ARUN MISHRA

body2002
ORDER Arun Mishra, J. 1. Petitioner assails grant of contract to Damodar Ropeway and Construction Company Pvt. Ltd., for construction of bi-cable ropeway at "Maa Sharda Temple", Maihar, managed by Shri Sharda Prabandhan Committee, Maihar, District Satna. 2. Petitioner is the Managing Director, Ropeway and Resorts Private Ltd., Kolkata. He submitted a tender pursuant to a notice inviting tenders. The last date for submitting tender forms was 1-3-2001. In all three tenderers submitted their tenders, i.e., M/s. Ropeway and Resorts Private Ltd., M/s. Damodar Ropeway and Construction Company Pvt. Ltd., and M/s. Larsen & Toubro Limited. The tenders were invited for bi-cable ropeway system. The tenders were to be submitted in three envelopes, one containing the security deposit, the second Technical proposals and the third containing the financial estimate. The third envelope containing financial estimate was deposited in Sub Treasury, Maihar, District Satna. After evaluation of the two envelopes, third envelop was to be opened. 3. Petitioner submits that Technical Experts of Shri Sharda Prabandhan Committee prepared a comparative chart and as per that, only the tender submitted by the petitioner was acceptable because other two tenders were for mono-cable system. In addition, the petitioner submits that the other two tenders were not in compliance of B.O.T. Scheme, i.e., Built Operate and Transfer Scheme. Petitioner submits that technical specification of Larsen & Toubro Ltd. and Damodar Ropeway & Resort, the respondent No. 3 were not in due compliance of the tender requirements, Thus, a decision was taken to formulate a common set of conditions. They were prepared as contained in P-13. Notices P-11 and P-12 were issued on 22-2-2001 to the respondent No. 3, Damodar Ropeway Constructions Company, Larsen & Toubro Co. and also to the petitioner to formulate common set of conditions. The petitioner also participated in the discussion to formulate the common set of conditions for awarding the contracts which were framed by Shri Sharda Prabandhan Committee vide P-13. Petitioner agreed to the general conditions contained in P-13 and accordingly a revised cost bid was submitted by the petitioner and the respondent No. 3. Larsen & Toubro Co. did not submit any revised cost bid and did not participate after the first stage. 4. Petitioner further submits that petitioner and respondent No. 3 were thereafter called for discussion on ropeway by letter (P-16) dated 24-3-2001. Larsen & Toubro Co. did not submit any revised cost bid and did not participate after the first stage. 4. Petitioner further submits that petitioner and respondent No. 3 were thereafter called for discussion on ropeway by letter (P-16) dated 24-3-2001. Petitioner submitted clarification of revised cost bid for supply and commissioning of Aerial Ropeway System vide letter P-17. It was not signed due to inadvertence. The original and revised financial estimates of the petitioner and respondent No. 3 were opened by Shri Sharda Prabandhan Committee and a comparative chart P-21 evaluating both was prepared. As per this chart, petitioner's estimate was Rs. 390 lacs whereas estimate of the respondent No. 3 was Rs. 400 lacs. As per petitioner's estimate, his cost was to be recovered within 7 years and 11 months whereas according to the estimate of respondent No. 3, it was to be recovered in 8 years. 5. Petitioner further submits that an irrelevant proposal to hand over the ropeway after four years to the respondent No. 2 and to pay some royalty after that period was also contained in the proposal of Damodar Ropeway and Construction Company, respondent No. 3. The Prabandhak Committee, respondent No. 2, prepared a separate comparative chart without consulting technical experts of the Committee and thereafter appointed a Chartered Accountant M/s. M.L. Daga to study and report on comparison of the revised cost bids of the petitioner and the respondent No. 3 Damodar Ropeway and Construction Company (hereinafter referred to as DRCC). Shri M.L. Daga submitted report (P-22) on 30-3-2001 which petitioner submits did not favour the respondent No. 3. Thereafter, matter was referred to another Chartered Accountant namely Shri V.K. Rajput & Company which submitted its report (P-23) on 31-5-2001. This report was obtained only with a view to get rid the report (P-22) submitted by Shri M.L. Daga. Petitioner has submitted another report (P-24) obtained by him privately from Viram Jain & Company, Chartered Accountant. 6. Petitioner submits that the tender of respondent No. 3 could not be taken into consideration in the condition of NIT which required to be considered for bi-cable ropeway. It was also not based on Built Operate Transfer basis but was based on Built Operate and Ownership basis. 6. Petitioner submits that the tender of respondent No. 3 could not be taken into consideration in the condition of NIT which required to be considered for bi-cable ropeway. It was also not based on Built Operate Transfer basis but was based on Built Operate and Ownership basis. The decision has been taken by Shri Sharda Prabandhan Committee before obtaining the report (P-23) of Shri V.K. Rajput, another Chartered Accountant, and the decision ought not to have been taken on the basis of the report of Shri M.L. Daga. Free cash flow statement ought to have been asked as per the report of Shri M.L. Daga before awarding the contract. The over all royalty offer made by the respondent No. 3 was not contemplated as per the condition mentioned in NIT. Thus, the consideration of the same by Shri Sharda Prabandhan Committee while awarding the contract to respondent No. 3 has rendered the decision illegal and arbitrary. It is also the case that action is malafide. Once tenders were invited, it was not open later to frame the general conditions. Thus, decision making process is vitiated. 7. Respondent No. 1, State of Madhya Pradesh, in its return contends that allegations of malafide are baseless. Evaluation has been obtained from the Chartered Accountants for determining as to whether proposal of respondent is more profitable or advantageous for Shri Sharda Prabandhan Committee or that submitted by the petitioner. Decision has been taken in objective manner in the best interest of Shri Sharda Prabandhan Committee. Respondent No. 3 has offered sura of Rs. 41.25 lacs per annum as royalty after 4 years from the commencing of ropeway traffic, Such an offer has not been given by the petitioner. It was found more profitable to accept the offer of DRCC respondent No. 3. 8. A separate return has also been filed by Shri Sharda Prabandhan Committee. Stand taken is that matter has been examined by technical experts. Reports of Chartered Accountants were also obtained. Report of Shri M.L. Daga indicates that offer of respondent No. 3 is beneficial to the interest of respondent No. 2. Technical and financial evaluation cannot be made subject-matter of the writ petition. Scope under Article 226 of the Constitution is limited. Three tenders were submitted. Last date for submitting the tender was 1-3-2001. Tenders were open on 21-3-2001. Report of Shri M.L. Daga indicates that offer of respondent No. 3 is beneficial to the interest of respondent No. 2. Technical and financial evaluation cannot be made subject-matter of the writ petition. Scope under Article 226 of the Constitution is limited. Three tenders were submitted. Last date for submitting the tender was 1-3-2001. Tenders were open on 21-3-2001. The tender submitted by Larsen & Toubro Co, and DRCC were for mono-cable system whereas petitioner submitted for bi-cable system. To bring about uniformity, and competitive ratio fresh tenders were called for bi-cable system. General Conditions were framed to which parties agreed. Larsen & Toubro failed to submit any revised offer whereas M/s. DRCC and the petitioner submitted revised offer. The respondent No. 3 offered more royalty to Shri Sharda Prabandhan Committee as compared to the petitioner. Therefore, the offer made by the respondent No. 3 was considered more suitable and profitable so as to rule out any apprehension. Financial opinion was sought from two separate Chartered Accountants. Shri M.L. Daga submitted report (P-22) on 30th March, 2001. Shri V.K. Rajput submitted report (P-23) on 31st May, 2002. Both of them endorsed the fact that the tender of respondent No. 3 DRCC was in best interest of Shri Sharda Prabandhan Committee. After thorough scrutiny, the work order has been issued in favour of DRCC. There has been no violation of agreed conditions, nor there was any deficiency in the offer submitted. Action is not malafide in any manner. 9. Respondent No. 3 DRCC to whom contract has been given contends that it is not statutory contract. Due procedure has been followed. Petitioner has participated and has submitted revised rate. The respondent No. 3 had offered to pay royalty of 41.25 lacs after the end of four years of operation and also agreed to handover the plant after four years whereas the petitioner had offered to handover the plant after 8 years and his royalty payment is to start after 8 years which payment was on gradual scale. The royalty offered by respondent No. 3 is far more than the petitioner. Thus, the offer has been rightly accepted by respondent No. 2. The offer of respondent No. 3 was better than the petitioner. There was no much difference. The offer of respondent No. 3 was for Rs. 400 lacs whereas the offer of petitioner was for Rs. 390 lacs. Thus, the offer has been rightly accepted by respondent No. 2. The offer of respondent No. 3 was better than the petitioner. There was no much difference. The offer of respondent No. 3 was for Rs. 400 lacs whereas the offer of petitioner was for Rs. 390 lacs. Royalty offer by respondent No. 3 was more as compared. 10. Shri Manish Verma, learned Counsel for the petitioner submits that condition of NIT has been framed in order to favour the respondent No. 3. The tender did not qualify with the conditions of Notice Inviting Tender. It was not for bi-cable ropeway but was for mono-cable ropeway. It was also not for built operate and transfer system but was on built operate and ownership system. Thus, the decision of the respondent No. 2 to award contract to respondent No. 3 DRCC is bad in law. Terms of obligation as per Notice Inviting Tender were not fulfilled by the respondent No. 3. Learned Counsel further submits that the report (P-22) submitted by Shri M.L. Daga, Chartered Accountant, indicated that some information was necessary to finalise awarding of contract which was not called and report (P-23) of Shri V.K. Rajput was called on 31st May, 2001 but much before it, on 19th April, 2001 in undue haste, the decision was taken to award contract to the respondent No. 3. Thus, the action is arbitrary and has not been taken on due consideration of the report of Shri M.L. Daga. Learned Counsel further submits that offer made by respondent No. 3 of payment of surplus royalty was not contemplated at the time of submitting the tenders. Thus, it was not a relevant consideration which has been taken into consideration, which vitiates the decision and the decision making process itself stand vitiated as undue haste has been shown in the matter. 11. Shri R.S. Jha, learned Deputy Advocate General, appearing for respondent Nos. 1 and 2 refuted the submissions raised by the petitioner and contends that Committee of five persons, i.e., Executive Engineer, Officer Incharge--Sub Divisional Office, Shri B.K. Jain, President, J.P. Birla Cement, Shri K.K. Mitra, General Manager (Mechanical), Satna Cement, Shri R.P. Patnaha, an expert from P.W.D. (Electrical/Mechanical) considered the technical aspects. Financial offer was examined through Shri M.L. Daga and Shri V.K. Rajput and reports (P-22 and P-23) submitted are in favour of respondent No. 3. Financial offer was examined through Shri M.L. Daga and Shri V.K. Rajput and reports (P-22 and P-23) submitted are in favour of respondent No. 3. The royalty offered by the respondent No. 3 is more than the petitioner and the payment of royalty is to start after four years of installation by respondent No. 3 at the rate of Rs. 41.25 lacs per annum whereas no royalty is to be paid in case the offer of petitioner is accepted for a period of 8 years to the respondent No. 2. Learned Counsel has relied on few decisions to be referred later. 12. Shri M.L. Jaiswal, learned Senior Advocate appearing for respondent No. 3 DRCC, contends that it is non-statutory contract. The offer made by the respondent No. 3 is more financially sound and beneficial to the interest of respondent No. 2. He has relied Condition No. 5.6.7 of the tender (P-5) in which it was made clear right from the beginning that "financial bid" shall be evaluated on the basis of the "toll period" offered by the entrepreneurs. The most beneficial offer from the point of view of Shri Sharda Prabandh Samiti shall be considered for acceptance. Thus, considering this aspect the decision has been taken which cannot be said to be suffering with any malice. Petitioner has participated and has consented to revised general conditions and has submitted the revised offer. Fair procedure has been followed. 13. First question for consideration is whether the offer made by Larsen & Toubro Co. and the DRCC respondent No. 3 were liable to be rejected as they did not fulfil the necessary condition of Notice Inviting Tender by which the tenders were invited for bi-cable ropeway system. Only the offer of the petitioner was affirming to the initial condition published in the NIT. The offer was made on bi-cable basis. There was no comparative offers available with the respondent Shri Sharda Prabandhan Committee. As such a decision was taken to formulate common set of conditions for awarding contract which are mentioned in P-13. These conditions were finalised by the respondent No. 2 after having discussion not only with the petitioner but with respondent No. 3 also. It is admitted in para 5.9 of the writ petition that petitioner was called before finalising these conditions and petitioner has consented to the conditions. These conditions were finalised by the respondent No. 2 after having discussion not only with the petitioner but with respondent No. 3 also. It is admitted in para 5.9 of the writ petition that petitioner was called before finalising these conditions and petitioner has consented to the conditions. This is further averment in para 5.10 of writ petition that General Conditions (P-13) were agreed to the petitioner and respondent No. 3 and both of them had submitted revised cost bid respectively as per P-14 and P-15. Thereafter, petitioner as well as the respondent No. 3 had further participated in the discussions as per notice P-16 on 24-3-2001. Petitioner also submitted clarification on revised cost bid for supply commission on ropeway system as per P-17. The revised financial estimate was opened. A comparative chart (P-21) was prepared. Thus, in my opinion, when petitioner had agreed to the common set of conditions for awarding the contract, it is not open for the petitioner to contend that the revised offer submitted by the petitioner as well as the respondent No. 3 could not be considered by respondent No. 2. Petitioner himself had submitted to revised procedure and fair procedure has been adopted by the respondent by maintaining full transparency. Otherwise the only course available to respondent No. 2 was to cancel all the offers and to invite the fresh tenders instead of revised offer. Both the parties were given full opportunity to revise offers which they availed. Thus, in my opinion, the submission raised by the petitioner that the offer made by respondent No. 3 and Larsen & Toubro did not confirm to the earlier conditions of NIT is liable to be rejected. It is the case of petitioner that revised offer was not as per general condition (P-13) agreed between parties. As common conditions were agreed to by the petitioner, thereafter revised offers were submitted by the petitioner and the respondent No. 3. Petitioner has participated in the same and procedure adopted is fair, it cannot be said to be arbitrary and illegal in any manner. 14. Coming to the second submission raised by the learned Counsel for the petitioner that report (P-22) submitted by Shri M.L. Daga was in favour of the petitioner and it has been ignored and decision has been taken in contravention to the suggestions made in the report. 14. Coming to the second submission raised by the learned Counsel for the petitioner that report (P-22) submitted by Shri M.L. Daga was in favour of the petitioner and it has been ignored and decision has been taken in contravention to the suggestions made in the report. Further, information was not elucidated from the petitioner and respondent No. 3, thus, the decision taken on 19-4-2001 is in undue haste whereas the report (P-23) submitted by Shri V.K. Rajput was received by the respondent No. 2 on 31-5-2002. Thus, the decision has been taken in arbitrary manner to oblige the respondent No. 3. Perusal of the conditions of Notice Inviting Tender particularly 5.6.7, which has been pressed in the service by Shri Jaiswal, learned Senior Counsel, indicate that:-- "Financial bid shall be evaluated on the basis of the toll period offered by the entrepreneurs. The most beneficial offer from the point of view of Sharda Prabandh Samiti shall be considered for acceptance." It is not in dispute that as per offer given by the petitioner, the payment of royalty is to be started after 8 years of the installation of ropeway system whereas in the offer made by respondent No. 3 DRCC, the payment of royalty of 41.25 lacs per annum has to be started after 4 years. Statement of payment of royalty finds place in the report (P-22) submitted by Shri M.L. Daga which gives comparison of royalty of volume of 7 lacs passengers from 5 years onwards offer by DRCC and the offer made by the petitioner from 9th to 13th year, which is produced below:-- "8. Comparison of Royalty on Volume of 7 Lacs passengers (from 5th year & onwards) by DRCC ------------------------------------------------------------- Particulars Gross Revenue % Royalty (Rs. in lacs) ------------------------------------------------------------- (a) Upto 2 lac passenger 60.00 15 9.00 (b) Next 1 lac (2-3 lac) 30.00 20 6.00 (c) Next 1 lac (3-4 lac) 30.00 25 7.50 (d) Next 1 lac (4-5 lac) 30.00 25 7.50 (e) Next 0.5 lac (5-5.5 lac) 15.00 35 5.25 (f) Next 1.5 lac (5.5-7 lac) 45.00 40 18.00 7.00 210.00 53.25 Note: If there is surplus then the same will be shared in the ratio of 70:30 between Trust & DRCC. By RR (From 9th to 13th year) ------------------------------------------------------------- Particulars Gross Revenue % Royalty (Rs. By RR (From 9th to 13th year) ------------------------------------------------------------- Particulars Gross Revenue % Royalty (Rs. in lacs) ------------------------------------------------------------- (a) Upto 2 lac passenger 60.00 5 3.00 (b) Next 1 lac passenger 30.00 10 3.00 (c) Next 1 lac passenger 30.00 20 6.00 (d) Next 1 lac passenger 30.00 30 9.00 (e) Next 2 lac passenger 60.00 40 24.00 7.00 210.00 45.00 Surplus sharing -- Nil." Close scrutiny of aforesaid figure which are taken from tender documents indicates that the total royalty offered for 7 lacs passenger by respondent No. 3 is 53.25 lacs. The petitioner has offered the total royalty for 7 lacs passengers is 43 lacs. This total royalty is also based on slab system. Up to 2 lacs passenger, revenue expected in lacs is Rs. 60.00. Respondent No. 3 had offered 15% royalty whereas petitioner had offered only 5%. On next one lac passengers offer made, respondent No. 3 is 20% of the royalty whereas offer of petitioner is 10%. On next one lac passengers offer of respondent No. 3 is 25% royalty whereas 20% royalty has been offered by the petitioner. On next one lac passengers, the royalty offered by respondent No. 3 is 35% whereas the royalty offered by the petitioner is 30%. On next two lacs, the royalty offered by the respondent No. 3 is 18% whereas the offer of petitioner is 24%. Thus, in my opinion, firstly the overall royalty offered by respondent No. 3 is more. Secondly, the petitioner has offered more royalty of the collection only in case the number of passengers exceeds 5 lacs whereas the comparative reading of royalty offered by the respondent No. 3 is much more upto 5 lacs passengers. There is remote possibility of having more passenger then 5 lacs, in any case, the petitioner has offered more percentage of royalty on amount to be recovered on 7 lacs of passengers. Thus, the offer made by respondent No. 3 is more suitable and is in financial interest of Shri Sharda Prabandhan Committee and is in accordance with condition No. 5.6.7 of NIT. The report of Shri M.L. Daga no doubt mentions that total revenue collection during 8 years pay back period shown by petitioner is 1132.03 lacs and total revenue collection shown by respondent No. 3 is 1380.00 lacs. This figure also supports that revenue collection offered by respondent No. 3 is much better offer. The report of Shri M.L. Daga no doubt mentions that total revenue collection during 8 years pay back period shown by petitioner is 1132.03 lacs and total revenue collection shown by respondent No. 3 is 1380.00 lacs. This figure also supports that revenue collection offered by respondent No. 3 is much better offer. Nothing turns on that as the percentage of royalty comparison mentioned in para 8 calculated above makes out clear case in favour of respondent No. 3 DRCC. Shri Daga opined that both the parties should be asked to submit their cash flow statement by adopting constant traffic revenue but this comment is made in the context of figures of proposed revenue collection mentioned in para 6 by the petitioner and DRCC. That has nothing to do with the comparison of royalty offered in para 8 quoted above for 7 lacs passengers. Para 6 which has been relied upon by the learned Counsel for the petitioner is quoted below:-- "One peculiar feature has been noticed by us is of heavy difference in Revenue receipt on a/c of use of Ropeway during 8 years, i.e., pay back period. Total revenue by R.R. 1132.03 lac Total revenue by DRCC 1380.00 lac The difference is because of traffic volume. In fact comparison under BOT Scheme is only possible when traffic revenue volume is taken at constant figure by all participants. In our opinion both the participants should be asked to submit their fresh cash flow statement by adopting constant traffic revenue and then an offer our comments accordingly." The figures given in para 8 are crux of matter which shows that better offer has been made by the respondent No. 3. Thus, in my opinion, merely because report (P-23) was also sought from Shri V.K. Rajput by Shri Sharda Prabandhan Committee in addition to report of Shri M.L. Daga, it cannot be said that decision has been taken detrimental to the interest of respondent No. 2. It is the stand taken that this report has been taken so that in future no complication may arise. Whatever the case may be but the fact remains that in fact the offer made by respondent No. 3 DRCC is much better than as compared to the petitioner. 15. It is the stand taken that this report has been taken so that in future no complication may arise. Whatever the case may be but the fact remains that in fact the offer made by respondent No. 3 DRCC is much better than as compared to the petitioner. 15. Last submission raised by learned Counsel for the petitioner is that additional royalty was not factor to be taken into consideration as per conditions of Notice Inviting Tender. The submission is also that offer of surplus royalty was not contemplated to be given in NIT. Offer was required to be submitted up to the volume of 7 lacs passengers only. Thus, the offer made by the respondent No. 3 offering surplus at the ratio 70 to 30 could not be made the ground to accept the offer of respondent No. 3 DRCC. The petitioner has not mentioned surplus formula of distribution of royalty because it was not so called for. Surplus sharing ratio 70 : 30 has not been taken into consideration while arriving figure of profit of 165 lacs, i.e., based on actual royalty figure on 7 lacs passengers and as already mentioned in para 8 that the royalty offer by DRCC is to start after 4 years thus toll period is much better as compared to the petitioner which is 8 years. It was made clear in NIT that financial bid shall be evaluated on the basis of the "toll period" offered by the entrepreneurs. The beneficial offer from this point of view is that of DRCC and not that of petitioner. In addition, some surplus distribution has been offered by the respondent No. 3 in case it is realized that is in favour of the respondent No. 2. However, since that is not the turning point, acceptance of the offer is otherwise also in favour of the interest of respondent No. 2 on the basis of 7 lacs passengers. Hence no fraud as alleged can be found in the acceptance of offer made by the respondent No. 2. The parameters of making interference in such a process are more or less settled and has also to depend on each case. It is settled law that until and unless larger public interest is involved, Court are not to make interference in the case of two rival tenderers. The parameters of making interference in such a process are more or less settled and has also to depend on each case. It is settled law that until and unless larger public interest is involved, Court are not to make interference in the case of two rival tenderers. The decision taken by the respondent No. 2 is not detrimental to the public interest but rather in favour of public which is ultimate beneficiary. Any interference may delay the project itself which has already been delayed. 16. In Food Corporation of India v. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 , the Apex Court laid down that negotiation can be made to have the competitive offers and there is no impropriety in making the negotiation and acceptance of offer made after negotiation. It is not violative of Article 14. In Air India Ltd. v. Cochin International Airport Ltd. and Ors., (2000) 2 SCC 617 , it has been laid down that judicial review is confined to the process adopted not to the actual decision. It is open to the State to chose its own method but the method adopted should be complied with the norms, standard and procedure. The price need not always be the decisive factor. Decision has to be taken on the basis of overall view of the transaction viability weighing various relevant factors and having regard to commercial viability. Court cannot interfere with the decision but it can interfere with the decision making process on grounds of malafides, unreasonableness or arbitrariness. Court has to exercise its jurisdiction towards furtherance of overwhelming public interest. In the instant case petitioner was called alongwith respondent No. 3 DRCC and other tenderer. Revised general conditions (P-13) were formulated which were assented to by the petitioner as well as respondent No. 3. They submitted revised offer. Full transparency has been adopted. Full, fair and equal opportunity has been given to the rival tenderers to draw and put forth their claim. There is no fault in the procedure. The decision making process is flawless and is based on relevant considerations. 17. The Apex Court in Tata Cellular v. Union of India, AIR 1996 SC 11 , has laid down that obligations of Notice Inviting Tender must be fulfilled. In this case it is not pointed out that the respondent No. 3 does not fulfil the conditions (P-13) of Notice Inviting Tender. 17. The Apex Court in Tata Cellular v. Union of India, AIR 1996 SC 11 , has laid down that obligations of Notice Inviting Tender must be fulfilled. In this case it is not pointed out that the respondent No. 3 does not fulfil the conditions (P-13) of Notice Inviting Tender. No doubt that tender submitted by respondent No. 3 was for mono cable system but revised offers were called as per agreement between the parties and revised offer was submitted for bi-cable ropeway not only by the petitioner but by respondent No. 3 also. Thus, in my opinion, there is no violation of any of the six principles laid down by the Apex Court in Tata Cellular. The Apex Court has laid down following principles:-- "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 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 expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, 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. 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." In Laxmikant and Ors. v. Satyabhan and Ors., (1996) 4 SCC 208 , it has been laid down that a bidder after having participated in the auction on the basis of conditions cannot question the same on the ground that it was not open to the authority to make conditions. 18. v. Satyabhan and Ors., (1996) 4 SCC 208 , it has been laid down that a bidder after having participated in the auction on the basis of conditions cannot question the same on the ground that it was not open to the authority to make conditions. 18. In my opinion, in the instant case when the petitioner has submitted revised offer, agreed to general conditions (P-13), it is not open for the petitioner to challenge, after having participated and seen that the royalty offered by the respondent No. 3 was much higher than offered by the petitioner, the petitioner cannot be allowed to turn round after having participated in the process and agreed to it. 19. In view of aforesaid discussion, I find that decision is not actuated with malice but based on relevant consideration. No larger public interest is involved in the matter. It is a fight between two rival tenderers who have participated in the process. Thus, no interference is called for in the writ jurisdiction of this Court. The work is in progress. The respondent No. 3 is directed to complete it within stipulated time. The writ petition is dismissed. In the facts and circumstances of the case, costs on parties.