Judgment :- Petitioner has sought for a writ in the nature of mandamus directing the 1st respondent to suitably amend the restrictive conditions imposed in Clauses 9.8.2.1. and 9.8.2.11 of Tender No.BMR/CC/TRACK 2, issued by the 1st respondent in February 2009, which is produced at Annexure-‘A’ to the writ petition. 2. The matrix of the case is as follows: Petitioner is a public limited company registered under the Indian Companies Act, 1956, and is engaged in manufacturing of forging components, auto parts, railway parts etc., The petitioner claims that it has an association with the Swiss Company – Schwihag AG, which manufactures rail fastening systems like tension clamp SKL 12 and supplies it to the German Railways (DB). According to the petitioner, it has recently formed strategic partnership with companies in Europe for supply of fastening system 336, which is being used by many metros around the world, including Delhi Metro Rail Corporation. 3. The respondent No.1 – Bangalore Metro Rail Corporation Limited (hereinafter referred to as ‘BMRCL’ for short) is a joint venture of the Government of Karnataka and Government of India. It is an agency responsible for implementation of Bangalore Metro which is a mass transit rail system in the city of Bangalore. Respondent No.2 – Vossloh Fastening Systems GmbH is a company which is incorporated in Germany and is a leading manufacturer of rail fastening systems which are used by the Railways and local transport operators worldwide. The product range includes fastening systems for ballastless tracks and slab tracks, for all load profiles from heavy load to high speed. According to the petitioner, respondent No.2 has its presence in India for developing, manufacturing, propogating and selling fastening systems suitable for different types of railway tracks. 4. Respondent No.1 issued a tender notification in February 2009 bearing No.BMR/CC/TRACK 2 (hereinafter called as ‘Tender Document’ for short) for supply, installation, testing and commissioning of track work and installation of third rail system for Bangalore Metro Rail Project Phase-1. The relevant portion of the Tender Document is produced at Annexure-‘A’ to the writ petition. One of the sensitive and important component to be used in the project is the fastening system. Clause 9.8 of the Tender Document would stipulate the user of fastening system in the tracks. The Bangalore Metro Rail will have ballasteless tracks. The relevant portion of the Tender Document is produced at Annexure-‘A’ to the writ petition. One of the sensitive and important component to be used in the project is the fastening system. Clause 9.8 of the Tender Document would stipulate the user of fastening system in the tracks. The Bangalore Metro Rail will have ballasteless tracks. Thus, fastening system suitable for ballasteless tracks for Bangalore Metro is proposed to be used by the 1st respondent. Clause 9.8.2.1 of the Tender Document states that “The fastening system VOSSLOH 336 shall be used for all plain line ballasteless tracks”. It also specifies that, depending on the radius of the tracks, fasteners with a different number of anchor bolts are to be used. Definite specifications are mentioned under the said clause. Thus, it is clear that the Tender Document mandates the bidders to use only one kind of fastening system for the tracks viz., VOSSLOH 336. Clause 9.8.4.1 states that the fastening system VOSSLOH 336 shall be used for installation in and adjacent to the washing plant. The fastening system for the washing plan shall be corrosion protected. Clause 9.8.5.1 reveals that the inspection bay tracks shall be mounted on steel columns (raised pit tracks). Vossloh Fastening System 336 shall be used for track fastening in inspection bays. From the above, it is clear that the Tender Document mandates that the bidders shall use only one kind of fastening system for the tracks, Washing plants and inspection bay tracks viz., VOSSLOH 336. It also mandates to procure guarantee from suppliers against any manufacturing defects in service for a period of two years from the date of the commencement of train service. 5. The Petitioner, who claims to be capable of supplying identical product of fastening system at competitive rates, being aggrieved by the impugned conditions of user of VOSSLOH 336 fastening system laid down in the tender, has filed this writ petition. According to the petitioner, Schwihag AG, with which the petitioner has an association, manufactures rail fastening system having tension clamp SKL 12, which is similar fastening system as that of VOSSLOH 336. According to the petitioner, the fastening system manufactured by Schwihag AG is also the fastening system 336. 6. According to the petitioner, Schwihag AG, with which the petitioner has an association, manufactures rail fastening system having tension clamp SKL 12, which is similar fastening system as that of VOSSLOH 336. According to the petitioner, the fastening system manufactured by Schwihag AG is also the fastening system 336. 6. Sri K.G.Raghavan, learned Senior Counsel appearing on behalf of the petitioner vehemently argued that the 1st respondent has in complete disregard to the provisions of the Karnataka Transparency in Public Procurements Act, 1999 (hereinafter referred as ‘the Act’ for short) and the Rules framed thereunder (hereinafter referred to as ‘the Rules’ for short), has imposed the impugned conditions in the Tender Document; that the action of 1st respondent specifying only a particular brand i.e., VOSSLOH 336 fastening system is against the basic principles of Article 14 of the Constitution of India and the provisions of the Act and the Rules framed thereunder; and that the said clause is inserted only with an intention to favour the 2nd respondent by prevention fair competition. He further submits that respondent No.1 has not afforded an opportunity to the petitioner to explain the quality of the fastening system manufactured by Schwihag AG and the capacity of the petitioner to supply identical product, inasmuch as, the respondent No.1 has created monopoly in favour of respondent No.2 with regard to the fastening systems. It is further contended by the learned Counsel for the petitioner that the 1st respondent being the “procurement Entity” as defined under Section 2(d) of the Act is bound to follow the provisions of Section 4 of the Act read with Rule 11(2)(a) of the Rules. The sum and substance of the argument of the petitioner is that the word “or equivalent” should have been found place in Clause 9.8.2.1 of the Act as is done by the concerned authorities while implementing Metropolitan Transport Project (Railways), Chennai. 7. Sri Naganand, learned Senior Counsel appearing on behalf of the 1st respondent submitted that the provisions of the Act and Rules are not applicable to the matter on hand, inasmuch as, the 1st respondent is not the “Procurement Entity” as defined under Section 2 (d) of the Act. 7. Sri Naganand, learned Senior Counsel appearing on behalf of the 1st respondent submitted that the provisions of the Act and Rules are not applicable to the matter on hand, inasmuch as, the 1st respondent is not the “Procurement Entity” as defined under Section 2 (d) of the Act. He further submits that the detailed project report (DPR) specifies the product to be used as “VOSSLOH 336” fastening system which is the only system approved for the use in the Metro Rail projects in India and that the VOSSLOH 336 fastening system is a time tested product and has been approved by the Railway Board and whereas, the petitioner’s product had never been tested in India nor been certified by Railway Board. Sri Udaya Holla, learned Senior Counsel appearing on behalf of respondent No.2 supporting the contentions of the respondent No.1 submitted that, the petitioner has no locus standi to file the writ petition, inasmuch as, he is not the bidder; that the fastening system is one of the product used for the integrated work of installation, testing, commissioning of track work and installation of third range system; that the fastening system to be used in the integrated project is selected as the same is tested by Research Design and Standards Organisation (RDSO), Lucknow; that the testing of the product before its use by the said organisation is a condition precedent for the use of any system or component or product in Indian railways; that there is difference between VOSSLOH 336 fastening system and the fastening system 336 manufactured by Schwihag AG; that the VOSSLOH 336 fastening system is suitable for the installation of Bangalore Metro Rail and consequently, the authorities concerned in their wisdom have insisted that the fastening system to be used in the project in question is VOSSLOH 336. He further submits that there cannot be any compromise is safety matters and that the terms of the tender are not open to the judicial scrutiny as they are in the realm of contract. 8. From the rival contentions of the parties, the following questions arise for consideration: .(a) Whether the 1st respondent is a “Procurement Entity” within the definition of Section 2(d) of the Act and whether the provisions of the Act and the Rules are applicable? 8. From the rival contentions of the parties, the following questions arise for consideration: .(a) Whether the 1st respondent is a “Procurement Entity” within the definition of Section 2(d) of the Act and whether the provisions of the Act and the Rules are applicable? .(b) Whether the action of the 1st respondent in imposing the impugned condition in the Tender Document is in violation of Article 14 of the Constitution of India? 9. Re: Question (a): it is relevant to note the relevant provisions of the Act and the Rules. .(b) Whether the action of the 1st respondent in imposing the impugned condition in the Tender Document is in violation of Article 14 of the Constitution of India? 9. Re: Question (a): it is relevant to note the relevant provisions of the Act and the Rules. Section 2(d): “Procurement Entity” means any Government Department, a State Government Undertaking, Local Authority or Board Body or Corporation established by or under any law and owned or controlled by the Government, and any other body or authority owned or controlled by the Government and as may be specified by it; Section 4: Exceptions to applicability – The provisions of Chapter II shall not apply to Procurement of goods and services.- .(a) During the period of natural calamity or emergency declared by the Government; (b) Where the goods are services are available from a single source or where a particular supplier or contractor has exclusive rights in respect of the goods or services or construction work and no reasonable alternatives or substitutes exist: Provided that for the purpose of this clause there shall be a committee this clause there shall be a committee of three experts consisting of one technical representative of the procuring entity one technical representative of the Government organisation dealing with similar procurement and one representative from a reputed Academic or Research Institution or Non-Commercial Institution having expertise in such line to examine and declare that the goods or services are available from a single source; .(c) Where the procuring entity having procured goods, services or technology from a supplier or contractor determines that additional supplies must be procured from the same supplier or contractor for reasons of standardisation and compatibility with the existing goods service or technology; (d) Where the goods or services are procured from certain Departments of Government, public sector undertaking, statutory boards and such other institutions specified by the Government and such goods are manufactured or services are provided by them, for a period not exceeding three years from the date of commencement of this act; xxx xxxx xxx Rule 11 (2) (a): use of brand-names and catalogue numbers shall be avoided and where it becomes unavoidable, along with the brand name the expression “or equivalent” shall be added. Section 4 of the Companies Act, 1956:- Meaning of “holding company” and “subsidiary” – (1) For the purposes of this Act, a company shall, subject to the provisions of sub-section (3) be deemed to be a subsidiary of another if, but only if, - .(a) that other controls the composition of its Board of Directors; or .(b) that other.- .(i) where the first-mentioned company is an existing company in respect of which the holders of preference shares issued before the commencement of this Act have the same voting rights in all respect as the holders of equity shares, exercises or controls more than half of the total voting power of such company; .(ii) Where the first-mentioned company is any other company, holds more than half in nominal value of its equity share capital; or .(c) the first-mentioned company is a subsidiary of any company which is that other’s subsidiary. Xxx xxx xxx Section 617 of the Companies Act: For the purposes of [this Act], Government Company means any company in which not less than fifty-one per cent of the paid-up share capital is held by the Central government, or by any State Government or Governments, or partly by the Central Government and partly by one or more State governments and includes a company which is a subsidiary or a Government company as thus defined. 9. It is not in the dispute that the Bangalore Metro Rail Corporation Ltd., is a company incorporated under the provisions of the Companies Act. The name of the company is styled as “Bangalore Metro Rail Corporation Ltd., (BMRCL):, which came into effect from 12th September 2005. Earlier it was known as M/s. Bangalore Mass Rapid transit System Ltd. (BMRTL). The same was incorporated on 21st September 1994. There cannot be any dispute that the 1st respondent is a Government company as defined under Section 617 of the Companies Act, inasmuch as, the entire share capital is held by the State Government as well as the Government of India. All the learned advocates have also fairly agreed that Bangalore Metro Rail Corporation Ltd., is a “State” within the meaning of Article 12 of the Constitution of India. 10. In this context, it is useful to extract the meaning of “control” from different dictionaries. According to Black’s Law Dictionary, the word “control” means “power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee”. 10. In this context, it is useful to extract the meaning of “control” from different dictionaries. According to Black’s Law Dictionary, the word “control” means “power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee”. As per Law Lexicon by P. Ramanatha Aiyar, the word “control” as a noun would necessarily mean that “a power to check, or restrain, superintendence, management” and as a verb, it would mean “to restrain, to check, to hold in restraint, to dominate, to rule and direct, to counter act, to exercise a directing, restraining or governing influence over, to govern with reference thereto, to subject to authority, to have under command and authority over, to have authority over the particular matter”. According to Section 2(1)(c) of SEBI Regulations, 1997, “control” shall include the right to appoint majority of the Directors or to control the management or policy decision exercisable by a person or persons acting individually or in concert, directly or indirectly, including by virtue of their shareholding or management rights or shareholders agreements or voting agreements or in any other manner. 11. The document at Annexure-‘P’ by which the Government of India had conveyed its approval for implementation of BMRCL project reveals that the estimated completion cost for five years in stages in Rs.6395 crores. The project is funded by Government of India as well as Government of Karnataka. In addition to it contribution, the Government of Karnataka has waived its taxes and duties. However, Government of India has not waived its taxes and duties. It further reveals that any cost escalation due to change in scope or beyond the approved project time cycle will be borne by the Government of Karnataka. The Bangalore Metro Rail Corporation is presently a wholly owned company of Government of Karnataka and the Managing Director is appointed by Government of Karnataka with prior consent of Government of India. The High Power Committee is constituted under the Chairmanship of Chief Secretary of Government of Karnataka in order to solve several problems with regard to land acquisition, diversion of utilities, shifting of structures in the project alignment, rehabilitation of project-affected person etc., Other members of the High Power Committee will be the Secretaries of the concerned departments of the State Government, heads of civil bodies, etc., The high Power Committee will meet once in a month to sort out all such issues. The group of Ministers is set up to take policy decisions and to review the progress of the project and the Chief Minister of Karnataka is one of the permanent invitee. 12. The Central Government has imposed a condition by the letter/order dated 11th May 2006 vide Annexure-‘P’ that the Government of Karnataka will bare the entire cost of land through interest free subordinate debt and that the Government of Karnataka will ensure that electric power is made available to the project on a ‘no profit-no loss basis’ and that the Government of Karnataka will ensure price based measure to promote and facilitate metro ridership as part of an integrated traffic rationalisation plan for the Bangalore city with a view to ensure that the projected ridership is realised. The integration of various modes of transport which would act as feeder/evacuation systems to the Bangalore metro for improved ridership would be given high priority by the Government of Karnataka and that the Government of India will not share any cost towards procurement of additional rolling stock in the second year of operation as this would not be a part of the project cost; and that the Government of India would not finance cash losses and capital expenditure during the operational phase and its requirements would need to be financed by the Government of Karnataka. 13. It is not in dispute that the 1st respondent -Corporation has got totally 12 Directors, out of whom, 5 are appointed by the Government of India and 5 are appointed by the Government of Karnataka. Two other functional Directors are appointed by the rest of the 10 Directors. Accordingly, all the 12 Directors are now appointed. Seven of the Directors are from Karnataka. The Managing Director is appointed by the Government of Karnataka. He is the Officer of the Government of Karnataka and works as Managing Director of respondent No.1-Corporation, on deputation. 14. From the above, it is amply clear that the 1st respondent-Corporation is established under law i.e., the Company Law. The Government of Karnataka apart from contributing finance to a substantial extent, controls the affairs of the project. The Managing Director of the Corporation is the Officer of the State Government and is appointed by the State Government as a Managing Director of Bangalore Metro Rail Corporation Limited. The Government of Karnataka apart from contributing finance to a substantial extent, controls the affairs of the project. The Managing Director of the Corporation is the Officer of the State Government and is appointed by the State Government as a Managing Director of Bangalore Metro Rail Corporation Limited. The Government of Karnataka is bearing the entire cost of land and has exempted the Corporation from paying taxes. The Government of Karnataka has ensured that the electric power is made available to the project on a no profit-no loss basis. It will also ensure price based measure to promote and facilitate metro ridership as part of an integrated traffic rationalisation plan for the Bangalore city. The High power Committee set up is headed by the Chief Secretary of the Government of Karnataka who is assisted by the Secretaries of various Departments and the local bodies. Chief Minister of Government of Karnataka is the permanent invitee of the High Power Committee. 15. From the above, it is clear that the Government of Karnataka though not fully controls the project, controls the project to a substantial extent. The word “control” used in Section 2(d) of the Act should have to be understood to mean substantial control. The word “control”, in the context, cannot be construed as fully controlled, but is should be understood to mean substantially controlled. In the case of Mysore Paper Mills Ltd. Vs. Mysore Paper Mills Officers’ Association And Another ( (2002) 2 Supreme Court 167), it is observed that the concept of instrumentality or agency of the Government is not to be confined to entities created under or which owes its origin to any particular statute or order but would really depend upon a combination of one or more of relevant factors, depending upon the essentiality and overwhelming nature of such factors in identifying the real source of governing power, if need be, piercing the corporate veil of the entity concerned. 16. The respondent No.1 –company is entrusted with important public duties obligating to undertake the mass transit development for social and economic welfare of the people. Out of twelve Directors, seven are from Government of Karnataka and its departments, appointed with the concurrence and nomination of the State Government. They have adequate supervision and control over the project. 16. The respondent No.1 –company is entrusted with important public duties obligating to undertake the mass transit development for social and economic welfare of the people. Out of twelve Directors, seven are from Government of Karnataka and its departments, appointed with the concurrence and nomination of the State Government. They have adequate supervision and control over the project. This will go to show that the State Government has deep and pervasive control of respondent No.1 –Company and its day-to-day administration and consequently confirm the position that the appellant –Company is nothing but an instrumentality and agency of the State Government. The respondent No.1 –Company is substantially controlled by the State Government and the physical form of the Company is merely a clock or cover for the Government. If it is so, the 1st respondent falls within the definition of “Procurement Entity”, inasmuch as, the respondent No.1 Corporation which is established under the Company Law, is substantially controlled by the Government of Karnataka. 17. The contention of the learned counsel for the respondents that the 1st respondent is not controlled by the Government of Karnataka is not tenable. The control and the management signifies the controlling and directive power. The controlling authority must be in a position to dominate the affairs of the undertaking. Such a control would be either in respect of the management of its affairs or in respect of its finances or with regard to the capital structure. Ultimately, what is required to be noted is as to whether there is substantial control by the State Government on the project or not. Having regard to the above facts and circumstances, this Court is of the opinion that the State Government substantially controls the project. The said conclusion reached by this Court is amply fortified by the fact that tender notification is published in the State Tender Bulletin as per the provisions of the Karnataka Transparency in Public Procurement Act. Thus, the tender inviting authority itself is satisfied with the fact that the provisions of the Act are applicable, inasmuch as, the 1st respondent is the “Procurement Entity” within the meaning of Section 2(d) of the Act. In a view of the same, this Court holds that the 1st respondent is a “Procurement Entity” within the meaning of Section 2 (d) of the Act. Thus, the provisions of the Act and the Rules made thereunder are attracted. 18. In a view of the same, this Court holds that the 1st respondent is a “Procurement Entity” within the meaning of Section 2 (d) of the Act. Thus, the provisions of the Act and the Rules made thereunder are attracted. 18. Re-Question (b): Keeping in mind the above finding, the contention advanced on behalf of the petitioner that respondent No.1 was not justified in shutting the doors to fastening systems other than VOSSLOH 336 has to be considered. 19. There cannot be any doubt that Section 4(b) of the Act mentioned supra reveals that where the goods are available from a single source and no reasonable alternatives or substitutes exist, it is open for the concerned authority to procure the goods from the said source. While doing so, the authorities concerned shall constitute the committee of three experts consisting of one technical representative of the procuring entity, one technical representative of the Government organisation dealing with similar procurement and one representative from a reputed Academic or Research Institution or Non-Commercial Institution having expertise in such line to examine and declare that the goods or services are available from a single source. Rule 11 (2) of the Rules states that unbiased technical specifications shall be prepared by observing the various safeguards, including avoiding the use of brand names and catalogue numbers. However, if it is inevitable to use brand names and catalogue numbers, alongwith the brand name the expression “or equivalent” shall be added. In this matter, the word “or equivalent” is not added after the words “VOSSLOH 336”. In this context, reference may be made to the judgment of the Apex Court in the case of Master Marine Servicesw (P) Ltd., -Vs-Metcalfe & Hodgkinson (P) Ltd., And Another ( (2005) 6 SCC 138 ), wherein it is held thus : “Para-15: ..... ….. ….. Even when some defect is found in the decision marking process, the Court must exercise its discretionary powers under Article 226 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 interfere.” In the case of Federation Of Railway Officers Association And Others Vs. Union Of India ( (2003) 4 SCC 289 ), the Apex Court has held thus: “Para – 12: In examining a question of this nature where a policy is evolved by the government, judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise, the Court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the Court will not interfere with such maters.” From the above, it is clear that, unless there is any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for this Court under Articles 226 and 227 of the Constitution to interfere. 20. The records reveal that Delhi Metro Rail Corporation (hereinafter referred to as the “DMRC” for short) was entrusted with the planning, design, implementation and operation of Delhi Metro project. The successful planning and implementation of Delhi Metro project encouraged the Government of Karnataka to avail DMRC’s expertise for the planning, investigation and preparation of a detailed project report for metro lines in Bangalore city. The Government of Karnataka vide letter No.UDD 144 PRJ 2002 dated 19.9.2002 conveyed their consent to DMRC to take up the preparation of detailed project report and based on the instructions conveyed in the said letter, M/s. Bangalore Rapid Transit System Limited (BMRTL) placed an order with DMRC vide letter dated 31.10.2002 for taking the assignment. The DMRC thereafter took the detailed status report and identified two corridors which were then cleared in principle by Government of Karnataka. The DMRC carried out the topographical and traffic surveys with the assistance of M/s.RITES, who assisted DMRC in drawing up the detailed project report. The DMRC thereafter took the detailed status report and identified two corridors which were then cleared in principle by Government of Karnataka. The DMRC carried out the topographical and traffic surveys with the assistance of M/s.RITES, who assisted DMRC in drawing up the detailed project report. During the preparation of the detailed project report, the DMRC had constant interaction with Government of Karnataka and various governmental and local agencies. Various other investigations were carried out with the assistance of Authorities, such as Torsteel Research Foundation, Department of Environmental Sciences, Bangalore University, National Council for Applied Economic Research etc., After due consultation with various Governmental Agencies, a detailed project report was prepared and submitted in May 2003 by DMRC. It also contains all technical parameters pertaining to construction and operation of Metro Rail system. The detailed project report inter alia deals with ballastless track on main lines (via ducts/tunnels) under Clause 7.2.3. which reads thus: “7.2.3. – On the viaducts, it is proposed to adopt plinth type ballastless track structure with RCC derailment guards integrated with the plinths (shown in Fig.7.2). In tunnels, slab type track structure is to be adopted (shown in Fig.7.3 & 7.4). Further, it is proposed to adopt Vossloh-336 Fastenings System (shown in Fig 7.5) on both types of ballastless track structures, with a base-plate to base-plate spacing of 65 cm on viaducts and 70 cm in tunnels. Most of the components of VOSSLOH 336 Fastening system are now indigenously available. The toe load design for the clips is to be finalised at the detail design stage.” 21. From the above, it is clear that the project as conceived contemplated use of VOSSLOH 336 Fastening system. The Detailed Project Report prepared by DMRC has been accepted in its entirety and project is being implemented in accordance with the same. As per the Detailed Project Report, the fastening system to be used is VOSSLOH 336 Fastening system. If any other fastening system is to be used in the place of VOSSLOH 336, it would lead to altering or modifying the integrated Detailed Project Report which is already approved and based on which, the work is already being carried out. The fastening system is important in critical passenger safety mechanism. The track items being critical for passenger safety, the same are to be tested and approved by Railway Board after field trials. The fastening system is important in critical passenger safety mechanism. The track items being critical for passenger safety, the same are to be tested and approved by Railway Board after field trials. Only after successful performance in the filed, they will be approved for their adoptation. As could be seen from Annexure-‘R-2’, the Railway Board has approved the use of VOSSLOH 336 fastening system for ballastless track for Delhi Metro. The Railway Board obviously mush have approved the use of VOSSLOH 336 fastening system only after subjecting the said system to various tests. Bangalore Metro is being implemented on similar lines of Delhi Metro. As aforementioned, DMRC has prepared the Detailed Project Report for Bangalore Metro and is executing it as an integrated project. While executing integrated project, one of the component i.e., fastening system cannot be changed. As on this day, there is nothing on record to show that any other fastening system is approved by the concerned authority for use in Metro Rail projects in India. The petitioner also has not disputed that his product is not approved by the Railway Board or by the RDSO, Lucknow. If it is so, the petitioner cannot insist that the distributors of fastening system 336 manufactured by Schwihag AG should also be given a chance to participate in the bid in pursuance to the tender notification vide Annexure-‘K’. Chapter 17 of Detailed Project Report of Bangalore Metro Phase-1 deals with implementation strategy – institutional arrangements and legal cover. The relevant portions of implementation strategy as found in Chapter-17 of the Detailed Project Report read thus: “ The Concessionaire approach has not so far been tried in any rail based urban transport project in our county. Attempts made to try this approach for high speed trams in early nineties in Delhi and recently for ELRTS in Bangalore have not succeeded. It is therefore felt that conditions are still not conducive in our county to try the Concessionaire approach for metro rail systems. It is therefore recommended that the implementation of Bangalore Metro should be done by BMRC on the lines DMRC is implementing Delhi Metro. Xxxx xxx xxx Metro projects cannot be executed the way Government agencies execute projects in this county. Each day’s delay is likely to enhance the cost of the project by Rs.47 lakhs. Therefore, timely completion is very important to safeguard the financial viability. Xxxx xxx xxx Metro projects cannot be executed the way Government agencies execute projects in this county. Each day’s delay is likely to enhance the cost of the project by Rs.47 lakhs. Therefore, timely completion is very important to safeguard the financial viability. Xxxx xxxx xxxx Since BMRC will not have the required expertise and experience manpower to check and monitor the General Consultants, it may be necessary to engage proof Consultants from the very start who will do this job on behalf of BMRC. Delhi Metro Rail Corporation can be considered for being appointed as Proof Consultant to BMRC.” Xxx xxx xxx From the above, it is clear that the conditions are still not conducive in our county to try the Concessionaire approach for metro rail systems. Therefore, the authorities must have decided to have Bangalore Metro on the lines of Delhi Metro. In other words, the policy makers do not want to take chance, particularly in respect of the safety of the people at large. 22. During the course of arguments, it is clearly conceded by the learned counsel for the respondent No.1 that, as and when other fastening systems, including that of petitioner get approval from the Railway Board, such systems can also be incorporated in future tender documents if they are found suitable for Metro Rail projects. Nobody can dispute that the products which are not undergone rigorous safety tests cannot be used in the interest of the safety of public as well as safety of the entire railway system. The public interest cannot be jeopardised at the instance of a manufacturer who claims to have a similar product. The commercial interest of the manufacturer should yield to the greater public interest. Ultimately, the safety of the public is important. Therefore, even if the petitioner’s product is used in German Railways, the same cannot be a ground for allowing this writ petition, more particularly when there is nothing on record to show that project of Germany is similar to that of Bangalore Metro. 23. The petitioner has relied upon the document at Annexure-‘E’ written by Schwihag AG to the petitioner to contend that the tension clamp SKL 12 manufactured by Schwihag AG is used in fastening system 336 and that the same SKL 12 is also used in VOSSLOH 336. 23. The petitioner has relied upon the document at Annexure-‘E’ written by Schwihag AG to the petitioner to contend that the tension clamp SKL 12 manufactured by Schwihag AG is used in fastening system 336 and that the same SKL 12 is also used in VOSSLOH 336. But, the very letter Annexure-‘E’ also reveals that difference between VOSSLOH 336 fastening system and Schwihag AG fastening system 336 is the anchor bolt and in some cases, an additional insulting plate which is used for electrical stray current insulation. Which means, there is certain difference between the VOSSLOH 336 fastening system and Schwihag AG fastening system 336. Under such circumstances, it cannot be said that the product of Schwihag AG is exactly similar to the product of VOSSLOH 336 fastening system. Be that as it may, this Court cannot substitute its opinion to the experts’ opinion in the field. It is for the concerned authorities of the Railway Board to find out as to whether Schwihag AG fastening system 336 can be appropriately used for Bangalore Metro Rail system or not. As has been held by the Apex Court In the case of Tata Cellular Vs. Union Of India ((1994) 6 Supreme Court Cases 651), it is held by the Apex Court at Para-94 (4) that : “(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.” It is also relevant to refer to the judgment of the Apex Court in the case of Directorate Of Education And Others Vs. Educomp Datamatics Ltd., And Others (AIR 2004 Supreme Court Cases 1962), wherein it is held that the terms of the invitation to tender are not open to judicial scrutiny the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide. As the Tender Document has invited bidders through out the World for the integrated project and as the Tender Document is prepared pursuant to the detailed project report prepared by the experts in the filed based on Delhi Metro experience, the same cannot be interfered with. If interfered, the same may modify the detailed project report itself, which may affect the integrated project. 24. It is no doubt true that there is nothing on record to show that the three members committee is appointed to certify that there is no reasonable alternative to the VOSSLOH 336 fastening system as per Section 4(b) (proviso) of the Act. Since the detailed project report is prepared by the Delhi Metro Rail Corporation based on experts’ opinion and since the fastening system VOSSLOH 336 is successfully used in Delhi Metro, the experts in the filed must have come to the conclusion that the very fastening system shall be used in Bangalore Metro Rail project also in order to avoid any sort of problem and in the interest of safety of users of metro rail. Before using fastening system VOSSLOH 336 for Delhi Metro, the said product was tested by the RDSO, Lucknow. As aforementioned, as there is nothing on record to show that any fastening system of similar quality is approved by the Railway Board or by the concerned authority, the authorities must have thought it fit to use the fastening system VOSSLOH 336, inasmuch as, the same is time tested system. Since the Tender Document is issued in pursuant to the detailed project report, the tender inviting authority could not have gone beyond the detailed project report. Since the Tender Document is issued in pursuant to the detailed project report, the tender inviting authority could not have gone beyond the detailed project report. Under such circumstances, this Court does not find that there is any violation of Article 14 of the Constitution of India. In view of the above, the Court is unable to accept the contention of the petitioner that the decision of the respondent No.1 arbitrary and mala fide. No mala fides can be attached to the 1st respondent in insisting the intending bidders to use VOSSLOH 336 fastening system only. It cannot be said that the action of the respondents to have the impugned conditions in the tender document is purely discriminatory or mala fide. Therefore, this Court refuses to interfere in the action of respondent No.1. The larger public interest requires that the progress and implementation of Bangalore Metro Rail project should not be scuttled or delayed and intervention is uncalled for. Law should take back seat to give way to the larger public interest. Therefore, in spite of some procedural lapses of non-observance of proviso to Section 4 (b) of the Act, this Court is of the clear opinion that no relief can be granted in favour of the petitioner in this writ petition. 25. The project should be implemented keeping in mind the safety of public at large. It is brought to the notice of the Court that already time is fixed for the implementation of the project at Bangalore. If the prayer of the petitioner is allowed, the same would prolong the execution of the project, inasmuch as, the petitioner has to get his fastening system 336 tested by the concerned railway authorities and thereafter, he will have to participate in the tender process. Till such time, the work of Metro Rail project shall have to be stopped. As could be seen from DPR, each day’s delay is likely to enhance the cost of the project by Rs.47 lakhs. This Court will not permit such things to happen. Therefore timely completion of the project is very much necessary to safeguard the interest of the state. As aforementioned, the commercial interest of the manufacturers should yield to the greater public interest. This Court will not permit such things to happen. Therefore timely completion of the project is very much necessary to safeguard the interest of the state. As aforementioned, the commercial interest of the manufacturers should yield to the greater public interest. In view of the same, this Court declines to grant the prayers as sought for in the writ petition, particularly when it is conceded by respondent No.1 that as and when other fastening systems, including the one of petitioner, get approval from the Railway Board/competent authority, can be considered and incorporated in future tender documents. It is open to the petitioner to get necessary approval from the Railway Board/competent authority for using the Schwihag AG fastening system 336 in Metros. After getting such approval, the petitioner may participate in tender. With the said observations, this writ petition is dismissed.