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2007 DIGILAW 275 (GAU)

Anindya Basumatary v. Food Corporation of India

2007-04-09

BIPLAB KUMAR SHARMA

body2007
JUDGMENT B.K. Sharma, J. 1. The challenge in this writ petition is to the decision of the official respondents towards qualifying the respondent No. 5 in technical bid and opening of the price bid and pursuant thereto the negotiation held with the respondent No. 5 in respect of the tender enquiry. 2. The petitioner is an existing contractor under the respondent Corporation in respect of transportation of food grains, etc. In response to the Notice Inviting Tender (NIT) dated 04.10.2006 in two bid tendering system (technical bid and price bid) from the intending tenderers for transportation of food grains from Ex-Rly. siding/station, Gossaigaon to FCI, FSD, Gossaigaon for two years on regular basis for the estimated value of contract Rs. 1,04,86,000 (approximate), the petitioner responded to the same by submitting his tender. As per the NIT stipulation, price bid of only those tenderers who qualified in the technical bid was to be opened. By a corrigendum dated 26.10.2006, the eligibility criteria stipulated in NIT was modified as below: Experienced and bona fide Handling/Transport Contractors with strong financial background having experience of Handling/Transportation with Manufacturing/Handling Agencies/Government/PSU/Public Limited Company dealing in fertilizers/food grains/cement or similar products during preceding 2 years of transport contracts, the total value of which is not less than 50% of the estimated value as stated below, OR the tenderer should have executed in the immediately preceding two years any single contract, the value of which is not less than 25% of the estimated value.... 3. As per Clause 7(g) of the model tender form, the price bid of only those tenderers shall be opened whose technical bids are found acceptable and the time and date of opening of price bids shall be fixed and intimated to them. As per Appendix II, Model Tender Form for fulfilment of the criteria regarding works experience, the tenderers are to submit experience certificate duly obtained from the Manufacturing/Handling Agencies/Government/PSU/Public Limited Company dealing in fertilizers/food grains/cement or similar products during preceding 2 years of transport contracts. 4. In the meantime, the term of the earlier contract expired on 21.11.2006 and no settlement having been made for ensuing period before the expiry of the said term, the respondent Corporation by its letter dated 10.11.2006 asked the petitioner to continue with the transportation work for another three months on temporary basis or till placement of the regular contractor, whichever is earlier. According to the petitioner he having continuously executed similar contract works since last several years and having transported food grain items for the value of Rs. 50,40,900 (approximately) for the years 2004-2006, same was more than 25% of the estimated value of contract. 5. Pursuant to the submission of tenders by the tenderers, including the respondent No. 5 and the petitioner, same were opened on 14.11.2006. However, no scrutiny of the documents could be done upon opening of the technical bid in view of the involvement of volumes of tender papers. As such for scrutiny of the tender papers, a committee was constituted. According to the petitioner, no notice fixing the date and time for scrutiny of the tender papers was served on the petitioner and the committee scrutinized the tender papers on 21.11.2006 and found both the petitioner and the respondent No. 5 qualified and accordingly recommended to open the price bids of the successful tenderers in technical bid. Both the petitioner and the respondent No. 5 were informed by communication dated 27.11.2006 that they have qualified in the technical bids and that the price bid shall be opened on 28.11.2006. Upon opening the price bids, it was found that the rate quoted by the petitioner was Rs. 53 per MT for the entire distance and that of the respondent No. 5 was Rs. 44 per MT. However, the authority was of the opinion that the rate quoted by both the petitioner and the respondent No. 5 were on the higher side and accordingly the decision was taken to negotiate with the participating tenderers as regards the rate quoted by them. 6. It is the case of the petitioner that he was expecting invitation for negotiation from the respondent Corporation. However, in spite of lapse of considerable period of time when he did not receive any such invitation, he visited the Guwahati Office of the Corporation to enquire the fate of his tender. Upon such enquiry he could come to know that FCI authorities have already issued intimation to the respondent No. 5 only directing him to appear for negotiation and pursuant to such intimation, the respondent No. 5 had also appeared before the FCI authorities on 06.12.2006 and upon negotiation, the original rate offered by him, i.e. Rs. 44 per MT, has been reduced to Rs. 43 per MT. 44 per MT, has been reduced to Rs. 43 per MT. Thus, according to the petitioner, there has been violation of equality clause of giving equal opportunity to the petitioner by not calling him for negotiation. 7. In paragraph 14 of the writ petition, the petitioner has stated that the respondent Corporation has committed illegality in accommodating the respondent No. 5 inasmuch as the said respondent having not fulfilled the eligibility criteria of the NIT, he could not have been held to be qualified in the technical bid and consequently his price bid could not have been opened. According to the petitioner the respondent No. 5 has not fulfilled the requirement regarding 25% work experience during the immediately preceding two years. It has been stated that the respondent No. 5 submitted a certificate dated 14.07.2004 only concerning the works executed by him during the period from 16.05.2002 to 15.05.2004 and thus the said certificate does not pertain to the period immediately proceeding two years from the date of submission of tender. According to the petitioner, the term "immediately preceding 2 years" would mean the period from 15.11.2004 to 14.11.2006. Thus, according to Appendix II of the NIT, the respondent No. 5 having failed to submit the experience certificate of immediate preceding two years, his technical bid ought to have been rejected. But the authority not only held him to have qualified in the technical bid, but also invited for negotiation after opening the price bid. 8. The petitioner has stated that the respondent No. 4 with a mala fide intention issued the letter dated 16.11.2006 to the Area Manager, Kokrajhar asking him to give details of the work value executed by the petitioner and the respondent No. 5 during the period from 13.11.2004 to 14.11.2006. The Area Manager on receipt of the said letter intimated by his letter dated 18.11.2006 that during the period in question, the work value of the respondent No. 5 was Rs. 18,23,674 and that of the petitioner was Rs. 92,90,188. It was also intimated that the respondent No. 5 executed work on ad hoc basis up to 18.12.2004 and thereafter he had not been appointed as transport contractor. 18,23,674 and that of the petitioner was Rs. 92,90,188. It was also intimated that the respondent No. 5 executed work on ad hoc basis up to 18.12.2004 and thereafter he had not been appointed as transport contractor. Thus, it is the case of the petitioner that as per the said letter dated 18.11.2006, the respondent No. 5 did not have the requisite work experience during the period immediately preceding two years of the present contract. Taking into account the estimated value of the contract which is Rs. 1,04,86,000, 25% of the same will be at Rs. 26,21,500 and thus it has been contended by the petitioner that from the said letter dated 18.11.2006 it is crystal clear that the respondent No. 5 did not have work experience worth of 25% of the value of the contract. 9. Certain allegations have been made against the respondent No. 5 in respect of his existing contract with the respondent Corporation which according to the petitioner had been continued with the respondent No. 5 on ad hoc basis for the period from 19.06.2004 to 18.12.2004. According to the petitioner, the respondent No. 5, during the period committed serious anomalies and irregularities by not placing the trucks in time. Consequently, the FCI authority was compelled to pay demurrage charge to the railway administration. According to the petitioner the vigilance cell of the FCI has seized the documents pertaining to the ad hoc contract with the respondent No. 5. 10. From the tenor of the averments made in the writ petition, what could be gathered is that it is the case of the petitioner that since the respondent No. 5 did not fulfil the requirement of executing works worth of 25% of the value of the contract and no certificate having been annexed, the authorities of the FCI could not have accepted the technical bid offered by the respondent No. 5 and as such all follow up action taken by the authorities with the respondent No. 5 are wholly unwarranted and liable to be interfered with. 11. The respondents, both official as well as private, have responded to the writ petition by filing their affidavits in opposition. 11. The respondents, both official as well as private, have responded to the writ petition by filing their affidavits in opposition. It has been contended in the affidavits that the bids were asked from the experienced and bona fide handling/transport contractors and since the respondent No. 5 is an experienced and bona fide handling/transport contractor of the respondent Corporation, his credentials were taken into account and when it was found that he had fulfilled the requisite essentials for execution of the works worth of 25% of the contract value, his technical bid was opened. As regards the challenge to the negotiation, it has been stated that as per the norms laid down, such negotiation can only be made with the lowest bidder and cannot be made with all. Since the bid offered by the respondent No. 5 was the lowest, he alone was invited for negotiation. 12. Referring to another item of work in the same NIT dated 04.10.2006 estimated value of which is Rs. 5,95,07,000, it has been stated by the respondents in their affidavit that the respondent No. 5 who had offered his bid for the said work also was not found qualified in technical bid. By making a reference to the said work, it has been contended that had it been intention of the respondent Corporation to favour the respondent No. 5, he would have been considered for the said work also. 13. The respondents have denied the allegations made regarding opening of the technical and price bids. They have also indicated the details of the work done by the respondent No. 5 with the FCI for single contract from June 2004 to December 2004 which is of Rs. 1,48,73,962. Thus, according to the respondents, the respondent No. 5 has fulfilled the requirement of having executed the work worth 25% of the value of the contract. In paragraph 6 of the affidavit, the official respondents have stated that the date of the NIT being 04.10.2006, the preceding two years would be for the period 05.10.2004 to 04.10.2006. It has been stated that the respondent No. 5, an existing contractor of the FCI, submitted certificate from the District Manager on 14.07.2004 showing execution of the works between the period from 16.05.2002 to 15.05.2004 which covers the period of two years, but not immediately proceeding two years. 14. It has been stated that the respondent No. 5, an existing contractor of the FCI, submitted certificate from the District Manager on 14.07.2004 showing execution of the works between the period from 16.05.2002 to 15.05.2004 which covers the period of two years, but not immediately proceeding two years. 14. According to the respondents, they have perused the relevant records of experience of respondent No. 5, he being an existing contractor. The letter dated 16.11.2006 which has been referred to by the petitioner, has also been mentioned by the respondents in their affidavit. It has been contended that same did not exactly relate to the period for the purpose of assessing the fulfilment or otherwise of the technical criteria of the respondent No. 5. It has been stated that the authority looked into the relevant records and after due scrutiny it found that the respondent No. 5 has performed transportation work with the FCI under ad hoc contract for the period from June 2004 to December 2004 which covers the relevant period and his experience from November 2004 to December 2004 alone is to the extent of Rs. 34,50,805 in a single contract is by far above the requirement of Rs. 26,21,500 in a single contract for the preceding two years. In paragraph 11 of the affidavit, the official respondents have stated that having regard to the fact that the respondent No. 5 in reality qualified for the technical bid having had the requisite work experience, his bid could not have been rejected keeping in mind the public interest involved. According to the respondents, the entire decision making process is fair, transparent and non-arbitrary. 15. The respondent No. 5 in his affidavit has reiterated the stand of the official respondents. It has been stated by the respondent No. 5 in his affidavit that at the relevant column of the tender documents he has clearly indicated his experience by mentioning about the value of the two existing transportation works under FCI, i.e. (i) for the period from 19.06.2004 to 18.12.2004 for a value of Rs. 1,48,73,962; and (ii) for the period from 16.05.2002 to 15.05.2004 the value of which is Rs. 2.39 crores. According to him, he has required experience to qualify the technical bid. 1,48,73,962; and (ii) for the period from 16.05.2002 to 15.05.2004 the value of which is Rs. 2.39 crores. According to him, he has required experience to qualify the technical bid. He had submitted an application on 10.08.2006 before the District Manager, FCI, District Office, Kokrajhar praying for issuance of the performance certificate for the period from 19.06.2004 to 18.12.2004, but he was intimated that due to demurrage charge liability, some amount was withdrawn from the bill and the matter was to be forwarded to the regional office at Guwahati for final decision towards demurrage charge liability. Thus, the office was not in a position to issue the performance certificate until the matter was finalized by the regional office. Situated thus, the respondent No. 5 was unable to enclose the experience certificate for the single transportation contract work worth Rs. 1,48,73,962 covering the relevant period. According to him, the value of the contract work only for two months, i.e. November 2004 and December 2004, i.e. immediately preceding two years, as per the NIT and corrigendum of the single transportation contract work, is for a value of Rs. 1,48,73,962. It has further been stated that value of the work for the period from 19.06.2004 to 18.12.2004 is Rs. 34,50,805 which is more than the requirement of Rs 26,21,500, i.e. 25% of the estimated value of the contract. 16. As regards the allegations that the respondent No. 5 had experience in respect of only ad hoc contract, it has been contended by the respondent No. 5 that in the NIT there was no mention that the tenderers will have to have experience of executing regular single contract. 17. From the tenor of the stand of the official as well as the private respondents what could be gathered is that irrespective of the non-enclosure of the experience certificate, since the respondent No. 5 in fact, has executed the transportation works worth more than 25% of the estimated value of the contract, and since he has executed the said work under FCI, there is no wrong in considering the technical bid of the respondent No. 5. 18. The petitioner has filed an affidavit in reply to the affidavits filed by the official as well as private respondents to which the respondent No. 5 has also submitted the rejoinder affidavit in reply. 19. Amidst the aforesaid pleadings and counter pleadings, etc. Mr. 18. The petitioner has filed an affidavit in reply to the affidavits filed by the official as well as private respondents to which the respondent No. 5 has also submitted the rejoinder affidavit in reply. 19. Amidst the aforesaid pleadings and counter pleadings, etc. Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R. Dubey, learned Counsel for the petitioner has primarily argued that the respondent No. 5 having failed to furnish the requisite experience certificate, his technical bid ought to have been rejected. To buttress his argument, Mr. Choudhury, has placed reliance on the decisions of the Apex Court reiterated in Ramana Dayaram Shetty v. International Airport Authority of India and Ors. and (2001) 2 SCC 451 : 2001 (1) Arb.LR 540 (SC) West Bengal State Electricity Board v. Patel Engineering Co. Ltd. He has argued that the respondents cannot develop their case through affidavit in opposition and the matter will have to be decided as it stood at the time of filing of the tenders. 20. Mr. P.K. Roy, learned Counsel representing the FCI, on the other hand submitted that the requirement was not the certificate but the experience worth of 25% of the estimated value of the contract. He has placed reliance on the decision of this Court reported in 2000 (3) GLR 173 Bidhu Bhushan Choudhury v. Union of India and Ors. Mr. K.H. Choudhury, learned senior counsel assisted by Mr. Sk. Muktar, learned Counsel representing the respondent No. 5 submitted that there was no wrong in the decision making process of the official respondents and it is an admitted position that the respondent No. 5 has required experience and that too with the FCI itself and thus the FCI was within its domain and competence to take into account the said experience towards consideration of the case of respondent No. 5. 21. During the course of hearing, the only argument advanced is relating to consequence of non-submission of the work experience certificate. In this connection, learned Counsel for the petitioner has referred to tender documents containing the clause that the tenderer should have executed a single contract immediately preceding two years, the value of which is not less than 25% of the estimated value of the contract. In this connection, learned Counsel for the petitioner has referred to tender documents containing the clause that the tenderer should have executed a single contract immediately preceding two years, the value of which is not less than 25% of the estimated value of the contract. Referring to Annexure E, Tender Documents, as per which the tenderer is required to enclose experience certificate, it has been contended by the learned Counsel for the petitioner that irrespective of the fact as to whether the respondent No. 5 in fact, has the requisite experience, in absence of such certificate enclosed to the tender documents, the respondents could not have considered his tender and the-same ought to have been rejected. 22. The petitioner himself has admitted in the writ petition in paragraph 15 that the respondent No. 5 has executed transportation work of total value of Rs. 1,48,73,962 on ad hoc basis during the period from 19.06.2004 to 18.12.2004. In the counter affidavit filed by the respondents, it has been pointed out that in the aforesaid period the respondent No. 5 has executed works worth Rs. 34,50,805 in a single contract from November 2004 to December 2004, which is within the period 05.10.2004 to 04.10.2006. Thus, the amount of Rs. 34,50,805 far exceeds the requirement of Rs. 26,21,500. This specific plea of the respondents has not been denied by the petitioner. His only contention is that since the respondent No. 5 failed to annex the work experience certificate, the tender submitted by the respondent No. 5 was defective and ought to have been rejected. 23. The case of Ramana Dayaram Shetty has been referred to primarily to contend that the standard and eligibility laid down in the tender notice cannot be departed from arbitrarily and that such departure from the standard would amount to denial of equality of opportunity to those who felt bound by the standard of eligibility and, therefore, did not submit their tenders. Same is not the case in hand. It is not a case of making any departures from the standard of eligibility. It is also not the case of accepting the tender of the respondent No. 5 upon deviation being made from the standard of eligibility to the deprivation of other tenderers. Same is not the case in hand. It is not a case of making any departures from the standard of eligibility. It is also not the case of accepting the tender of the respondent No. 5 upon deviation being made from the standard of eligibility to the deprivation of other tenderers. There is no dispute, rather has been admitted by the petitioner, that the respondent No. 5 has the requisite experience, but he failed to annex the experience certificate along with his tender papers. The question is not of a certificate, but is of the required experience. When it is an admitted position that the respondent No. 5 has the requisite experience by way of executing contract under the same very authority, I am of the considered opinion that merely because the respondent No. 5 could not submit the experience certificate along with the tender documents as the same was not issued to him by the competent authority of the FCI, it will not be fatal. 24. In the case of Patel Engineering it has been held by the Apex Court that strict adherence of instruction to bidders is essential and inclusion of mistake in bid documents cannot be permitted to be corrected on the basis of equality. The present case is not a case of making correction to bid documents. The respondent No. 5 clearly indicated in his bid documents that he has requisite experience but for the reason that the certificate was not issued by the same authority which has issued the NIT in question, same could not be annexed with the tender documents. The tender issuing authority upon receipt of the tenders got the work experience verified through its own documents and found that in fact, the respondent No. 5 had the requisite experience. This aspect of the matter has been admitted by the petitioner, but only plea raised by him is that the respondent No. 5 having not annexed the work experience certificate, his tender ought to have been rejected. 25. The decision on which the learned Counsel for the respondent Corporation has placed reliance, i.e. Bidhu Bhushan Choudhury, has emphasized that right to choose one tenderer from others is vested with the authority and unless it is shown that the power has been exercised arbitrarily and for collateral purpose, the writ court will be reluctant to interfere with the decision of the authority. It was emphasized that the court in its dispensation of justice is to keep in mind the public interest and the public benefit. In exercising the discretion, the court is to make balance between the conflicting interest. In the instant case, what has emerged from the discussion made above is that the authority has exercised the discretion in a particular way which in my view cannot be said to be arbitrary or discriminatory, more so, when the fact relating to requisite work experience of the respondent No. 5 has been admitted by the petitioner himself. The authority duly applied its mind and made its choice which cannot be said to be unreasonable. There is no question of violation of Article 14 of the Constitution of India. In R.V. Tower Hamlets London Borough Council ex. p. Chentix Developments Ltd. reported in (1998) 1 All ER 961, the court summarized the principles in the following way: The court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account or conversely have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority it may still be possible to say that although the local authority had kept within the four corners the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case again I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned and concerned only, to see whether the local authority has contravened the law by acting in excess of the power which Parliament has confined in them. 26. Mr. K.N. Choudhury, learned senior counsel for the petitioner, has placed reliance on the following decisions also: (i) (1990) 2 SCC 486 Ram Gajadhar Nishad v. State of U.P. and Ors. (ii) AIR 2005 SC 1962 Laxmi Sales Corporation v. Bolangir Trading Co. 27. 26. Mr. K.N. Choudhury, learned senior counsel for the petitioner, has placed reliance on the following decisions also: (i) (1990) 2 SCC 486 Ram Gajadhar Nishad v. State of U.P. and Ors. (ii) AIR 2005 SC 1962 Laxmi Sales Corporation v. Bolangir Trading Co. 27. The aforesaid two decisions have been relied upon to buttress the argument that the conditions for valid tender cannot be diluted and it will be wrong to hold that production of required documents is not mandatory. There is no quarrel with the proposition laid down by the Apex Court. Unlike the cases before the Apex Court, in the instant case enclosure or non-enclosure of the work experience certificate will not make any change regarding qualification of the requisite work experience of the respondent No. 5. In the tender submitted by him his work experience was clearly indicated. The respondent No. 5 being an existing contractor under FCI, it was within its knowledge that the respondent No. 5 has the requisite experience and thus, submission or non-submission of the certificate would not make any difference. It is not the requirement of submission of the certificate from another authority other than the FCI. After all, what for, the experience certificate is required. Same is required to satisfy the test of execution of works worth 25% of the estimated value of the contract. It is the authority of the FCI which did not issue the certificate to the respondent No. 5 and the same very authority could not have rejected the tender submitted by the respondent No. 5 on ground of non-availability of the certificate, more particularly when there was enough proof of conforming to the requirement of NIT, the respondent No. 5 having executed work under the FCI. Written certificate cannot override the unwritten certificate under custody of the respondent Corporation. 28. As has been held by the Apex Court in the case of Air India Ltd. v. Cochin International Airport Ltd. and Ors. reported in [2000] 1 SCR 505, even when some defects are found in the decision making process, the court must exercise its discretionary power under Article226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene. 29. In the instant case, the plea taken by the petitioner is a technical plea. The plea will have to be decided on the touchstone of any prejudice being caused to the petitioner and the principles underlying Article 14 of the Constitution of India. Even the petitioner has admitted that the respondent No. 5 has got the requisite experience under the respondent Corporation. If the respondent No. 5 has fulfilled the requirement of the NIT, his deprivation on the technical plea will lead to an absurd position in which although he fulfils the requirement of the NIT, but yet on the technical plea he will be denied participation in the tender process. It is precisely the reason as to why it has been observed by the Apex Court that merely on making a point the writ court will not interfere with the decision making process unless it is established to be vitiated by factors like mala fide, unreasonableness or arbitrariness. Overall public interest involved demands that the case of the respondent No. 5 be considered. The rate offered by him is also by far lower than the rate offered by the petitioner. 30. In the decision reported in AIR 2007 SC 437 B.S.N. Joshi v. Nair Coal Services Ltd. it has been held by the Apex Court that the declared defaulter should be actual defaulter and not alleged defaulter. In the instant case also, the petitioner is not lacking the requisite experience, but he is sought to be debarred on a technical plea raised by the petitioner. It is not even alleged that he does not have the requisite experience. 31. On the basis of the pleadings and arguments of both the parties what has emerged is that the respondent No. 5 has the requisite experience having executed the transportation works under the same very authority which has issued the NIT. Can it be said that the decision of the authority is founded on mala fide and colourable exercise of power. The respondent No. 5 in his tender documents clearly mentioned about his requisite experience which fulfils the requirement of the norms laid down in the NIT. Can it be said that the decision of the authority is founded on mala fide and colourable exercise of power. The respondent No. 5 in his tender documents clearly mentioned about his requisite experience which fulfils the requirement of the norms laid down in the NIT. It is true that the certificate in support of the work experience was not annexed, but at the same time it will have to be considered as to why such certificate was required. Had it been a case of the respondent No. 5 having executed transportation works with any authority other than the FCI, the authorities of the FCI would not have any occasion to verify the fact relating to the work experience. Unlike such a situation, the petitioner being the existing contractor of the respondent Corporation which had issued the NIT, it was within its competence and jurisdiction to verify the veracity or otherwise of the claim of the respondent No. 5 regarding fulfilment of the norms relating to work experience. Upon such verification when it was found that the respondent No. 5 in fact had the requisite experience which has also been admitted by the petitioner himself in the writ petition, I am of the considered opinion that there was nothing wrong for the authority in considering the tender submitted by the respondent No. 5. 32. To accept the plea of the petitioner will amount to acceptance of too technical a plea. The fact admitted by all cannot be brushed aside on the technical plea as has been projected by the petitioner. After all, it is the respondent Corporation who is to consider the tender submitted by the tenderers. 33. It is an admitted position that the rate offered by the respondent No. 5 is the lowest and upon negotiation same has further been reduced. If the respondent No. 5 has otherwise qualified having conformed to the requirement of the NIT, the plea raised by the petitioner cannot be accepted. It is not a case of exercising the power of the authority for any collateral purpose. The real opinion formed by the authority of the FCI is on the basis of the actual state of affairs and not on the basis of any conjectures and surmises. The respondent Corporation is the best judge in the matter as the respondent No. 5 is an existing contractor under it. The real opinion formed by the authority of the FCI is on the basis of the actual state of affairs and not on the basis of any conjectures and surmises. The respondent Corporation is the best judge in the matter as the respondent No. 5 is an existing contractor under it. The respondent Corporation cannot be said to have infringed any right of the petitioner. 34. In view of the above, I am of the considered opinion that no "interference is called for in the decision making process of the respondents and consequently the writ petition must fail. 35. The writ petition is dismissed. Interim order passed on 22.12.2006 stands vacated. The respondent Corporation shall now proceed with the matter in accordance with law. Having regard to the facts and circumstances involved in the case, there shall be no order as to costs.