JUDGMENT 1. - These special appeals arising out of common judgment dated 5.5.2006 passed by learned Single Judge in CWP No. 2918/2006 and 8 others, were finally heard with the consent of parties and are being disposed of by this judgment. Operative part of impugned judgment reads as under : "In that view of the matter, these writ petitions are liable to be accepted and are consequently hereby allowed. The petitioners are entitled to the issuance of a writ directing the respondents to execute the agreement in pursuance of the notice inviting tender No. RSO/IND/POL/BULK/2005 Ex-Sanganer Depot for which the petitioners submitted their bids and for being assigned the work in terms thereof." 2. Facts, in brief, relevant for deciding the controversy raised are that writ petitioners (contesting respondents) are owners of tank-Trucks which are plied for transportation of petroleum products and are hired by Oil Cos., including appellant Corporation (H.P.C.), for which earlier agreement was executed between the parties with expiry due on 30.9.2005. 3. Since earlier contract was to expire on 30.9.2005, the appellant (H.P.C.) and other Oil Company jointly floated Petrol Oil Lubricant (POL) bulk transportation tender for 2+1 years vide notice No. RSO/IND/POL/BULK/2005 (for brevity, "NIT-2005") Depot from tank-truck transporters who are intended to carry transportation of petroleum products for the period commencing from October 2005 to 30.9.2007. The writ petitioners submitted their bids on the prescribed tender forms and qualified in their technical bid which was opened or 20.7.2005 while price bid on 22.8.2005 whereby four rates were finalised after negotiations and classified as L-1, L-2, L-3 and L-4. 4. It is pertinent to mention here that ranking of bidders under categories L-1 to L-4 were decided on minimum financial outgo to the Oil Co., and the bidders have to be enlisted in ascending order of rates under L-1, L-2, L-3 and L-4. It is also made clear that rate of category L-1 was lowest offered by bidder and others of category L-2 to L-4 were on higher side in ascending order and the rates as per categories were approved by their Executive Committee. 5. Meanwhile since earlier contracts were to expire` on 30.9.2005 and NIT- 2005 impugned could not have been finalized, ad hoc arra gements were made for a period of six months effective from 1.10.2005 to 31.3.2006 and transporters were allowed to continue under earlier contract on old rates. 6. 5. Meanwhile since earlier contracts were to expire` on 30.9.2005 and NIT- 2005 impugned could not have been finalized, ad hoc arra gements were made for a period of six months effective from 1.10.2005 to 31.3.2006 and transporters were allowed to continue under earlier contract on old rates. 6. However, in course of ad hoc arrangement, rates were finalised through negotiations with bidders in different four categories, under which following transporters ('IT) accepted and consented as under : L- I category rate - 70 Transporters (TT) L-2 category rate - 1 Transporter (TT) L-3 category rate - 3 Transporters (TT) L-4 category rate - 80 Transporters (TT) Of course the writ petitioners gave their consent for rates under category L-4 on 28/29.10.2005. After approval, rates (supra) were finalised on 23.3.2006 - in pursuance whereof, initially agreements were executed with L-1 bidders and work order was tendered to them, which according to the appellant (H.P.C.) fulfill their present requirement and as soon as in case of increase in the demand, transporters offering rates under category of L-2 to L-4 would be called upon in ascending order. It is the case of appellant (I-I.P.C.) that their present need since being net out by L-1 bidders, other bidders of L-2 to L-4 category were not called upon and no agreement with either of such categories have been entered into. Aggrieved by this action of appellant H.P.C., writ petitioners filed petitions with the plea that since their earlier contract came to an end on 30.9.2005 and rates have been finalised by Oil Cos., under new tenders and their rates after negotiations under category of L-4 have been accepted and were allowed to continue after 30.9.2005, hence the appellant (H.P.C.) be directed to continue them and to enter into agreement and allot work order to them in terms of NTT-2005. The learned Single Judge allowed writ petitions of contesting respondents with the direction, quoted herein above vide order dated 5.5.2006. Hence these appeals. 7. The learned Single Judge allowed writ petitions of contesting respondents with the direction, quoted herein above vide order dated 5.5.2006. Hence these appeals. 7. Counsel for appellant (H.P.C.) vehemently contends that earlier agreement entered into with writ petitioners expired on 30.9.2005 and since fresh contract under NIT-2005 could not have been finalized; as such ad hoc arrangements were made for six months from 1.10.2005 till 31.3.2006 and before expiry whereof, bidders including writ petitioners were called for negotiations during which four rates offered by bidders were finalised under four categories L-I to L-4 but writ petitioners gave their consent only for rates under category L- 4 on 28/29.10.2005 - in pursuance whereof, rates were finally approved but no agreement has been executed with them, because it always depends upon demand and requirement and since presently existing demand is being met out by transporters ('17I') offering L-1 category rates with whom agreements have been executed and other transporters offering rates under L-2 to L-4 category have not been called upon to execute agreement and those of whom (including writ petitioners) cannot claim any parity with those bidders having offered lowest rates under L-1 category; in such circumstances, the prayer seeking execution of the agreement is nothing but a relief for specific performance which cannot be adjudicated by this Court in writ jurisdiction under Article 226 of the Constitution inasmuch as serious error has crept in order impugned while equating transporters (TT) offering L-1 rates qua writ petitioners offering L-4 rates. In such circumstances, order passed by the learned Single Judge to execute agreement with the writ petitioners who offered rates of L-4 category in the facts of instant case is not legally sustainable and deserves to be set aside. 8. Counsel further submits that mere participation as tenderer/bidders in pursuance of NIT-2005 and finalisation of rates after negotiations in course of ad hoc arrangement does not confer an enforceable right in favour of the writ petitioners particularly when no agreement has been executed - in absence whereof, the writ petitions were not maintainable and learized Single Judge has failed to consider this significant aspect in right perspective. 9. 9. Counsel further submits that learned Single Judge erred in observing that there is no material which may infer that after 30.9.2005 the writ petitioners were allowed to continue for six months on old rates and not under the NIT- 2005, for which documents (Ann. Al and A2) were placed on record, which clearly demonstrates. that such ad hoc arrangement was made and old transporters were called upon to give their consent. Counsel submits that even if there is no consent furnished by the writ petitioners after expiry of their agreement on 30.9.2005 and they were allowed to continue to work on old rates for a period of six months - that will not confer any right in their favour and simultaneously no mandamus can be issued under NIT-2005 in violation of terms and conditions of tender document and that apart, it would unnecessarily put financial burden on public exchequer particularly when those who agreed for rates of I.-4 category are not required as per their existing load of work for Tank-trucks. 10. on the other hand, counsel for contesting respondents who entered into caveat, has supported the finding recorded by learned Single Judge and further contends that their earlier contract had expired on 30.9.2005 and rates were finally accepted by Oil Cos., and all writ petitioners have given their consent for rates under L-4 category and once the same was approved and accepted by them, on which they were allowed to continue from 1.10.2005 - that can only be under NIT-2005 more so when their consent was never obtained in course of ad hoc arrangement, may be for six months' term and when rates were approved under NIT-2005 and period of NIT-2005 stood commenced from October, 2005 for two years, their continuance after expiry of old contract in fact could only be under NIT-2005; as such learned Single Judge has not committed any error in directing the appellant (H.P.C.) to execute the agreement and allot work order to them. 11. We have pondered over rival contentions advanced by counsel for the parties and with their assistance, examined material on record. Before examining the contentions raised, it is significant to briefly state the principles laid down by Apex Court relating to scope of judicial review in cases of commercial transactions. 12. 11. We have pondered over rival contentions advanced by counsel for the parties and with their assistance, examined material on record. Before examining the contentions raised, it is significant to briefly state the principles laid down by Apex Court relating to scope of judicial review in cases of commercial transactions. 12. In Tata Cellur v. Union of India, AIR 1996 SC 11 , the Apex Court while examining scope of judicial review of administrative decisions relating to acceptance of tender and award of contract, observed that principles of judicial review would apply to the exercise of judicial contractual powers by Government bodies in order to prevent arbitrariness or favoritism but there are inherent limitations therein. The Apex Court deduced the principles as under : "(l) 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 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 fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts 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. 13. In Sterlining Computers Ltd. v. M/s. M. and N. Publications Ltd., AIR 1996 SC 51 the Apex Court observed as under : "While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". 13. In Sterlining Computers Ltd. v. M/s. M. and N. Publications Ltd., AIR 1996 SC 51 the Apex Court observed as under : "While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process". By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether "decision making process" was reasonable ration, not arbitrary and violative of Article 14 of the Constitution. If the confract has been entered into without ignoring the procedure which can be said to be basis in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entertaining into such contract. But once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the Court cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by Court amounts to encroachment on the exclusive right of the executive to take such decision." . 14. The law relating to award of contract by State and public sector corporations was reviewed in AIR India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 wherein the Apex Court observed : "The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract." 15. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract." 15. In view of what has been laid down by Apex Court in the decisions referred to (supra), in our considered opinion, the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down terms of the tender document as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. The scope of judicial review is very limited and such like contract can be interfered with only if an instrumentality of the "State" acts contrary to public good and interest, unfairly, unjustly and unreasonably, in its contractual, constitutional or statutory obligations or acts contrary to the constitutional guarantee under Article 14 of the Constitution. 16. Indisputably NIT-2005 is a part of commercial contract and earlier contract entered with the writ petitioners expired on 30.9.2005 and the appellant (II.P.C.) issued NIT-2005 asking the intending transporters (TT) for road transportation of bulk petroleum products for two years w.e.f. 1.10.2005 (after expiry of earlier contract on 30.9.2005) with an option for extension upto further one year but at the sole discretion of contracting.Oil Company. 17. In order to appreciate contentions raised by Counsel for the parties, it is necessary to briefly notice relevant part of tender document. NIT-2005 relates to invite tenders under Two-bid system from Tank Truck (TT) owners for ward of separate contracts Company wise/State Office wise/Region wise/Zone wise/Location wise for road transportation of bulk petroleum products for two years w.e.f. 1.10.2005 with option for extension for further one year at the sole discretion of the contracting Oil Co. NIT-2005 relates to invite tenders under Two-bid system from Tank Truck (TT) owners for ward of separate contracts Company wise/State Office wise/Region wise/Zone wise/Location wise for road transportation of bulk petroleum products for two years w.e.f. 1.10.2005 with option for extension for further one year at the sole discretion of the contracting Oil Co. Clause 1 of NIT-2005 laid down estimated 'Tank truck requirement by Oil Company for various districts in State of Rajasthan - extract whereof is quoted below : State and Name of Locations Estimated Tank Truck Requirement ($) IOC HPC IBP Rajasthan State WO AV BO M.TO FGH WO AV BO WO AV BO Ajmer 70 45 12 Bharatpur 90 50 15 Bikaner 35 2 - 5 Hanumangarh 36 40 12 Kota 85 40 12 Udaipur 120 149 12 Jaipur 140 1 1 125 12 Jodhpur 185 2 120 20 18. As per Clause B of Terms and conditions under NIT-2005 the tender is floated in two bid system (technical bid and price bid). Initially technical bid will be opened and evaluated and price bids of such technically qualified tenders based on technical evaluation will be opened on a later notified date. It has also been envisaged that ranking of tenderers will be decided on minimum financial outgo to the Oil Company by considering rates quoted in all four sectors and expected volumes of business in each sector and accordingly their rank will be decided as L-1, L-2, L-3 etc., and after the rates are finalized, tenderers will be listed in ascending order as per their ranking. As per sub-clause (8) of Clause B, if Tank trucks offered by L-1 tenders fail to meet full requirement then only tenderers who have offered rates on higher side in L-2/L-3/L-4 category will be considered in ascending order. Extract of few conditions of NIT-2005 relating to evaluation of tenderers is reproduced below : B. Evaluation of the tenderers : 3. Ranking of the tenderers i.e. L-1, L-2, L-3, etc., will be decided on minimum financial outgo to the Oil Company by considering the rates quoted in all four sectors and expected volumes of business in each sector. In case, any tenderer has not quoted rates for any of the above mentioned sectors, then for the purpose of ranking of such tenderers, highest rate quoted in that sector by any of the technically qualified tenderers shall be considered. 4. In case, any tenderer has not quoted rates for any of the above mentioned sectors, then for the purpose of ranking of such tenderers, highest rate quoted in that sector by any of the technically qualified tenderers shall be considered. 4. Tenderers will be listed in ascending order as per their ranking. Tenderer with minimum financial outgo to the company will be ranked L-1. Tenderer with the next lowest financial outgo will be ranked L-2 and so on. The list will include all the technically qualified tenderers in the ranking based on the rates quoted by them alongwith the number of 'rank trucks offered. 6. In case, rates offered by L-1 tenderers are acceptable to the Oil Company, Tank trucks offered by the L-1 tenderers will be allocated upto the requirement. 8. In case, 'rank trucks offered by L-1 tenderers is not meeting full requirement then negotiations /counter offer exercise will be continued with the other tenderers in order of their ranking till full requirement of bank-trucks is met. Extract of relevant terms under Clause E of NIT-2005 reads as under: E. Security Deposit (SD) 1. Successful tenderers will be required to furnish SD within 15 days of issuance of LOI/Work Order at the following rates : (a) The security deposit will be Rs. 1,00,000/- per Tank truck subject to maximum of Rs. 5,00,000/-; (b) For existing dealers/distributors of the Oil Company, the SD will be Rs. 50,000/- per contract irrespective of the number of Tank trucks offered. 6. Separate SIDS are to be submitted for each contract, location wise, with IOC/I-IPC/II3P respectively. 7. Successful tenderer will be entrusted with transportation work only after signing of agreement and payment of security deposit amount. A bare reading of terms and conditions under NIT-2005 clearly envisages that rates offered by tenderers will be decided on minimum financial outgo to the Oil Company keeping in view rates quoted in all four sectors and expected volumes of business in each sector and will be called upon in ascending order as per their ranking and the bidder with minimum financial outgo to the company will be ranked L-1 and the bidder with next higher financial outgo will be ranked L-2 and so on. If such L-1 bidder meet out existing requirement of the company, other tenderers ranked as L-2/L-3/L-4 are not required to be called upon and in case of increase in future demand or failure on the part of tenderers offering L-1 rates to meet out requirement of the company, other tenderers having offered L- 2/1,-3/1.4 rates will be entrusted with transportation work but only after execution of agreement and payment of requisite security deposit. 19. All the writ petitioners offered their tenders and participated in the NTT-2005 in .question and their technical bid was opened on 20.7.2005; price bid was opened on 22.8.2005 and indisputably negotiations took place with tenderers and four different rates were approved by Management on 21.3.2006 (Ann.R-1) and accepted by different tenderers whom were classified under L-1, L-2, L-3 and L-4 and writ petitioners gave their consent for rates under L-4 category on 28/29.10.2005 and accordingly contracts were entered with transporters offering L-1 rates, to whom work orders were also allotted as they fulfilled the existing requirement of appellant (H.P.C.). No agreement was executed with the writ petitioners under NIT-2005. Of course they were allowed to continue as Transporters ('I'I') on old rates from October, 2005 to 31.3.2006 in course of ad hoc arrangement made by the appellant (H.P.C.) as rates under NIT-2005 could not have been finalized. 20. We find substance in argument advanced by counsel for appellant (I LP.C.) that merely because the writ petitioners participated in NIT-2005 and offered rates under h4 category which was approved by the Management of Oil Company and accepted by the tenderers in no manner will hold the Company under obligation to get agreement executed. In our opinion, such a direction by the learned Single Judge is in clear contravention of the terms and condition and beyond scope of judicial review under Article 226 of the Constitution directing the company to execute agreement with the bidder of L-4 equating them with those bidders under L-1 category who offered lowest rates duly approved and accepted. 21. In our opinion, such a direction by the learned Single Judge is in clear contravention of the terms and condition and beyond scope of judicial review under Article 226 of the Constitution directing the company to execute agreement with the bidder of L-4 equating them with those bidders under L-1 category who offered lowest rates duly approved and accepted. 21. The learned Single Judge has basically proceeded on the premise that the writ petitioners were allowed to continue on existing rates after expiry of their earlier agreement from 1.10.2005, for which no consent was obtained in course of ad hoc arrangement (ibid) and their continuance after 30.9.2005 will draw a presumption about deemed acceptance of their bid having enforceable right to get agreement executed under NIT-2005 in their favour as sought in writ jurisdiction. 22. From a bare reading of terms and conditions under NIT-2005 it clearly manifest that only rates were finalized, but the appellant Company will call upon such 'IT transporters first who have offered lowest rates viz. Under L-1 category for allocation of work as per requirement and those bidders having offered higher rates viz. Under L-2 to L-4 category in ascending order will be offered allocation of work only in case of demand raised in future/exigency but that too in ascending order and in that eventuality agreement will be entered into with L-2, L 3, L-4 bidders upon furnishing of security amount. It is not the case of writ petitioners that either agreements from L-4 category have been executed or security has been accepted under NIT-2005, in absence whereof no fundamental or legal right of the writ petitioners can be said to have been infringed which requires interference by this Court. In our opinion, the appellant (H.P.C.) cannot be called upon to execute agreement in favour of the writ petitioners more so when it was their specific case before the learned Single Judge so also before us that existing requirement of appellant company has been met out with tenders having offered L-1 rates under NIT-2005 and there is no need to enter into any further agreement with those bidders having offered higher rates viz. L-2, L-3, L- 4 for any of four sectors under NIT-2005. 23. L-2, L-3, L- 4 for any of four sectors under NIT-2005. 23. In instant case we find that appellant (H.P.C.) has proceeded in terms and conditions (supra) under NIT-2005 and their action cannot be said to be arbitrary or unreasonable which may call for interference by this Court in limited scope of judicial review under Article 226 of the Constitution. 24. Consequently, these special appeals are allowed. The impugned judgment dated 5.5.2006 passed by the learned Single Judge is hereby set aside. No costs.Appeal Allowed. *******