Judgment :- 1. The first petition is filed by the unsuccessful bidder calling in question the order dt.26.9.2008 Annexure-‘AR’ of the State of Karnataka awarding the contract for development of a Housing complex for Economically Weaker Sections for short EWS, at Eijipura, Koramangala, to the 5th respondent; while the second petition is filed by displaced residents of the Housing complex, since dismantled, for a writ of mandamus. 2. In an area of approximately 131/2 acres of land in Eijipura, Koramangala, Bangalore, belonging to the erstwhile Corporation of City of Bangalore, reconstituted as Bangalore Mahanagara Palike (BMP) and presently the Bruhat Bangalore Mahanagara Palike (BBMP), a residential complex consisting of 1512 flats in 42 blocks were constructed between the years 1987-92 and allotted to persons belonging to EWS. The construction when found to have serious inherent defects, demonstrated by collapse of a building block, led to an enquiry, and a recommendation to demolish the building, followed by a decision to reconstruct approximately 1640 residential flats through a competitive bidding process. 3. The BMP issued a notification dt. 12.10.2004 published in the newspapers, inviting ‘Expression of Interest’, for short ‘EOR’ for redevelopment of EWS Housing complex and development of commercial complex at Koramangala, Bangalore on about 13 acres of land. The petitioner amongst 20 others including the 5th respondent submitted their EOI following which BBMP by letter dt. 1.1.2005 Annexure-B invited the petitioner for presentation and discussion on 5.1.2005 at the Meeting Hall of the BMP. Having regard to the magnitude of the buildings to be constructed and to decide the terms and conditions including a durable Private Public Participation (PPP) framework and policy, the BMP by resolution dt. 11.2.2005 Annexure-M appointed Infrastructure Development Corporation (Karnataka) India, for short IDECK as Advisor Assistant for the said project. 4. M/s. IDECK developed a project based on evaluation of earlier projects of the BMP, its past experiences, understanding the risk of BMP’s stake and return being revenue accretion as trade off, as key parameters relating to achievements of objectives of the project, to unlock commercial value of the land, reduce vehicular congestion in the gateway to the IT corridor, erect residential flats for economically weaker section, without having to invest in the project except for land and financial accruals being cash inflow, in terms of taxes on buildings, returns in terms of Rupees per square feet per asset life for 30 years. In short the project envisaged a joint development whereunder the BMP was to relinquish ownership of 50% the land in lieu of 50% built area, to be maintained by the builder for a period of thirty years. 5. The BMP by cover of letter dt. 27.5.2005 Annexure-C enclosed a Request for Qualification document, for short ‘RFQ’ to be submitted along with relevant documents on or before 4.7.2005. Pursuant thereto, the petitioner by letter dt. 1.7.2005 Annexure-D enclosed the RFQ duly filed up and supported by relevant records for the BMP’s evaluation stating that the bid was valid for nine months from the date of application. 6. The 5th respondent too submitted ‘RFQ’ which when evaluated along with other ‘RFQ’, of participant viz., the petitioner, the 5th respondent and another IDEB were found eligible to submit the request for proposal for short RFPs. Following this, the petitioner and the 5th respondent were issued with letters of even dt. 28.12.2005 Annexures-E & F to submit their respective RFP. 7. The petitioner’s and the 5th respondent’s queries and clarifications by letters and communications when responded to, enabled the petitioner under cover of letter dt. 17.2.2006 Annexure-K to submit the RFP document on 20.2.2006 before 16.00 hours, so also did IDEB, while 5th respondent too submitted its RFP on the same day, though recorded, as 4.05 p.m. The three proposals when opened on the same day at 4.30 p.m., in the presence of the participants, as recorded in the endorsement Annexure-L were found to be in order and were informed to make their presentations to the Commissioner and other officials and on qualifying in the technical bids, their financial bids would be opened. 8. The three participants having made their representations at the office of IDECK, in the presence of the Evaluation Committee consisting of BMP’s Chief Engineer Project, Executive Engineer Project, Asst.Executive Engineer Projects, General Manger Mahindra Arcs, Consultant Engineers Limited, Chennai and Architect Partner Chevalathan Associates, Chennai, evaluated the technical proposals and as the three proposals achieved threshold score of 70 marks, the financial bids were opened on the very same day i.e. 23.2.2006, whence it was noticed that the petitioner offered Rs.1,50,50,500/-, as Quarterly Management Fee (QMF), being highest was recommended as first preferred bidder while the 5th respondent offered Rs.1,35,00,000/- as QMF, hence placed as the second preferred bidder, as indicated in the report dt. 24.2.2006 Annexure-P. 9. 24.2.2006 Annexure-P. 9. It is the allegation of the petitioner that the 5th respondent’s offer of Rs.1,35,00,000/-as QMF, though placed second in the financial bid, nevertheless in active connivance with the officials of the BMP illegally tampered with the RFP document, corrected/manipulated the records so as to accommodate the 5th respondent. In addition, it is alleged that the officials of the BMP created reports of ‘M/s Manasa Consultants’ for short ‘Manasa’ and M/s Strut Geo Tech Laboratories, for short ‘Strut Geo’, to support the bid of the 5th respondent as more feasible following which the council of the BMP on 30.10.2006 resolved to award the contract to the 5th respondent, Annexure-R. 10. The petitioner having preferred W.P.No.16216/06, this court ordered interim stay of the resolution Dt. 30.10.2006 of the BMP, whence, it is stated that it was furnished with a copy of Appendix-7 of 5th respondent’s QMP Annexure-V, disclosing the handwritten insertions. On obtaining information under RTI Act, it is alleged that discrepancies were noticed in the area statement relating to number of car parking spaces, and that the 5th respondent had conducted itself in such a manner, so as to eliminate the petitioner by addressing letters to the BMP, Annexures-Z and AA, stating that 750 car parking spaces were not taken into consideration and if so done, would increase the revenue to BMP. It is further alleged that the queries under the RTI Act revealed that there were no formal agreements with M/s ‘Manasa’ and ‘Strud Geo’ to utilise their services for the project. 11. The interim order in the writ petition it is stated was modified to enable the Government to take a decision on the resolution of the BMP subject to the decision in the writ petition. The State having considered the matter under Section 98(2) of the Karnataka Municipal Corporation Act, 1976, for short ‘Corporation Act’, the Executive Committee, appointed by the Governor, since it was President’s Rule, in the meeting held on 23.5.2008 decided to cancel the resolution dt. 30.10.2006 of the council of BMP, while the Governor is said to have passed an order dt. 29.5.2008 directing the department and BBMP to take action in the matter, particularly in view of the urgency to provide adequate shelter to the displaced families. On the installation of the popular Government, the cancellation was confirmed by order dt. 30.10.2006 of the council of BMP, while the Governor is said to have passed an order dt. 29.5.2008 directing the department and BBMP to take action in the matter, particularly in view of the urgency to provide adequate shelter to the displaced families. On the installation of the popular Government, the cancellation was confirmed by order dt. 9.6.2008 Annexure-AH following which this court dismissed the writ petition as having became infructuous. 12. The 6th respondent-Prl.Secretary is said to have put up a proposal before the Cabinet invoking item Nos.28 and 33 of Schedule-I to the Karnataka Government (Transaction of Business) Rules 1977 soliciting withdrawal of the decision dt.23.5.2008 of the Executive Committee and revoke the order passed under 98(2) of the KMC Act annulling the resolution dt. 30.10.2006 of the council of BMP. The cabinet having had a re-look at the matter, by order dt. 18.9.2008 awarded the contract to the 5th respondent. Alleging that the 6th respondent was the Commissioner, BMP when the council of the BMP took a decision and thereafter, was the Prl.Secretary when the note was put up before the cabinet and managed a stage show, has preferred the petition for the following reliefs: “(a) Call for records; (b) issue a writ order or direction declaring that the decision of respondent No.2 vide GO No.UDD 261 MNG 2006 Bangalore Dt 26.09.2008 vide Annexure- “AR” to the writ petition to award contract for project for development of housing complex for the economically weaker sections of society (EWS) at Ejipura, Koramangala, to Respondent No.5, is illegal and quash the same; (c) issue a writ of mandamus or any other writ or order, directing respondent Nos.2 and 3 to consider the representations dated 16.6.2008 & 26.6.2008 made by petitioner vide Annexure-AL and AM and act in accordance with direction of His Highness the Governor of Karnataka dated 29.5.2008 vide Annexure-AG and issue LOA in favour of petitioner and award the contract in terms of RFP to petitioner; (d) Direct for appropriate cases being registered by competent authorities to investigate/enquire into the entire matter as to illegal tampering of records/abuse of powers by the officials and take action against the guilty; (e) issue any other writ, order or direction as this Hon’ble Court may deem appropriate in facts of the case.” 13. The petition is opposed by filing statement of objection dt. 5.12.2008 of the 5th respondent denying the allegations. The petition is opposed by filing statement of objection dt. 5.12.2008 of the 5th respondent denying the allegations. It is contended that the petitioner is a disqualified bidder since IDECK the evaluating Advisor Assistant did not notice the patent discrepancy in the petitioner’s drawings, more appropriately providing car parking space of dimensions less than that prescribed in the BMP’s building byelaws 2003 and being a violation of the bye-laws ought to be rejected. It is stated that petitioner was not a participant in the tender process and that M/s Akruti Nirman Limited being the participant, petition deserves to be rejected. (a). The respondent submits that being one of the participants in the tender process did submit RFP document on 20.2.2006 at 3.56 p.m and not till 4.05 p.m. as recorded by the Receiving Authority which was brought to the notice of the BMP on the very day by letter dt. 20.2.2006 Annexure-R12. (b) The QMP offered by the respondent was Rs.1,35,00,000/- and revenue from the additional car parking facility when not evaluated by IDECK made an incorrect recommendation. According to the respondent the total build up area for EWS flats offered by the petitioner is 6,12,413 sq.ft, while that offered by the respondent is 6,53,236 sq.ft. The area of the commercial building offered by the petitioner is 11,97,640 sq.ft of which 5,98,820/- sq.ft is BMP’s share and the remaining is the share of the petitioner. The respondent claims to have offered 13,07,374 sq.ft of commercial building of which 6,53,687 sq.ft is BMP’s share and the balance is the share of the respondent. (c) It is stated that the petitioner proposed 1,425/- car parking space of which 713 is the share of the BMP and the balance 712 is that of the petitioner. It is the case of the respondent that the petitioner having provided car parking space each measuring 2.25 mtrs x 4.50 mtrs though byelaw 16(a) of BMP Building Byelaws, 2003 prescribes dimensions for each car parking as 3.0 mtr x 6.0 mtrs, was deliberately ignored by IDECK. (d) The respondent claims to have offered 1936 car parking space, of which 968 is the share of the BMP, inclusive of 500 additional multistoried car parking slots. According to the respondent, its proposed 1936 car parking space was not evaluated by IDECK but was done by ‘Manasa’, engaged by the BMP. (d) The respondent claims to have offered 1936 car parking space, of which 968 is the share of the BMP, inclusive of 500 additional multistoried car parking slots. According to the respondent, its proposed 1936 car parking space was not evaluated by IDECK but was done by ‘Manasa’, engaged by the BMP. (e) Valuation by ‘Manasa’ is said to have resulted in arriving at net present value for short NPV of Rs.78,45,04,160.35, the petitioner’s offer while that of the respondent as Rs.104,14,95,314.39. ‘M/s Strut Geo’ engaged by the BMP, having evaluated the bid document opined that NPV of petitioner’s bid is Rs.101,05,54,553.99 while that of the respondent is Rs.120,25,65,010.07. (f) It is further stated that paragraph 1.1.2.5 provides for evaluation of the technical proposal, as set out in Appendix-VI while Appendix-V is a letter of declaration that the technical proposal conforms to the technical specifications and the byelaws of the BMP. Paragraph 1.1.5.7 states that interpretation of RFP is valid only if it is in writing and signed by the Executive Engineer (Projects), BMP and hence the allegations of the petitioner are not worthy of acceptance. (g) The respondent further states that paragraph 1.24 of the RFP, vests impeachable, unfettered right in BMP to engage and utilise the services of the consultants which when examined by the Commissioner on 4.3.2006, as indicated in the notes at page 13 to 15 in the file bearing No.EIC/F/1565/2004, copy of which is furnished under RTI Act, Annexure-R14, the drawing submitting by the petitioner were found to be violative of the Building byelaws of BMP and deserves to be disqualified by applying paragraph 1.29.3 (a) r/w paragraph 5.4 B of the Draft Concession Agreement. It is asserted that the appointment of the two consultants empanelled with the BMP to elicit their evaluation of the two bids cannot be found fault with. (h) Respondent specifically denies the allegation of interpolation in the RPF document in connivance with 6th respondent and other officers of the BMP. 14. Petitioner has filed a rejoinder dt. It is asserted that the appointment of the two consultants empanelled with the BMP to elicit their evaluation of the two bids cannot be found fault with. (h) Respondent specifically denies the allegation of interpolation in the RPF document in connivance with 6th respondent and other officers of the BMP. 14. Petitioner has filed a rejoinder dt. 10.12.2008 to the statement of objections of 5th respondent reiterating the averments in the memorandum of writ petition and in addition contends thus “after completion of TECH Assessment only as mandated by RFP terms and Rule 28(4) and (5) of KTPP Rules, the financial bids were opened without any demour from any quarters.” It is clarified that the petitioner earlier known as ‘Akruti Nirman Limited’ had changed its name to ‘Akruti City Limited’ on obtaining a fresh Certificate of Incorporation from the Registrar of companies in Maharashtra. It is alleged that the notings dt. 23.2.2006 to 3.5.2006, subsequent to opening of the RFP and financial bid, are manufactured to subvert and circumvent the validity of the tender proceedings to favour the 5th respondent. 15. Respondent Nos.3 and 4 have opposed the petition by filing statement of objections dt. 26.2.2009 inter alia contending that 42 residential blocks, spread over 13.12 acres of land in Koramangala, Bangalore, in a dilapidated condition, required demolition and reconstruction of a building complex under a public-private-partnership (PPP Model) pursuant to which the petitioner, 5th respondent and one IDEB submitted their RFQs on 20.2.2006 and at 4.30 p.m. the bids were opened in their presence. (a) The report of IDECK recommending the petitioner as the first preferred bidder when considered was found to be lacking in evaluation of material aspects, more appropriately the car parking slots not being in conformity with the Building Byelaws, while 5th respondent’s bid containing multi level car parking slots was not evaluated, requiring a second opinion. The Commissioner for BMP in agreement with the recommendation of the Chief Engineer (Projects) approved the proposal to secure the opinion of two independent agencies of which ‘M/s Manasa’ submitted a report on 13.4.3006 on an integrated evaluation of the technical and financial bids of petitioner and that of the 5th respondent in terms of ‘NPV’ at the end of 30th year, opining that the proposal of 5th respondent was more beneficial to BMP than that of the petitioner. The other consultant ‘M/s Strut Geo’ opined that BMP would benefit much more in the bid offered by the 5th respondent than that of the petitioner. (b) According to the BMP the evaluation by IDECK was based on the QMF offered by each of the participants while the evaluation by the two consultants was based on Net Present Value of BMP’s share over 30 years, integrating both technical and financial bids. Parameters adopted, it is claimed, are cost of construction; revenue from addition car parking facilities and other relevant factors. (c) The Commissioner, BMP having placed its recommendation before the Standing Committee for Works was approved on 19.5.2006 by the Council on 30.10.2006 while not considering the supplementary note dt. 27.10.2006 as to whether BOOT Module is a superior option. (d) According to the respondent, petitioner having questioned the resolution of the council by filing Writ Petition No.1216/2006, the Executive Committee constituted by the Governor, during President’s rule on 23.5.2008 decided to cancel the resolution without issuing notice to the Administrator of BMP since the term of the council had expired. It is stated that on the issue of the Government Order dt. 9.6.2008, the petition was dismissed as having become infructuous. (e) It is further stated that M/s Ambedkar Social Welfare Association, the petitioner and the 5th respondent having made separate representations to the popular Government, on its installation, the matter was taken up for reconsideration under Section 98(4) of the Karnataka Municipal Corporation Act, 1976 since the decision dt. 23.5.2008 of the Executive Committee did not contain reasons for cancelling the Council’s approval and therefore, having regard to the fact situation and the circumstances, by Order dt. 9.6.2008 cancelled the earlier Govt. Order and approved the council’s resolution. (f) Respondents specifically deny the allegation of interpolation in the tender document, so also the allegation that tender document of 5th respondent did not provide for multi level car parking. According the respondents the car parking is shown in each floor of the proposed commercial building as additional car parking facility. Order and approved the council’s resolution. (f) Respondents specifically deny the allegation of interpolation in the tender document, so also the allegation that tender document of 5th respondent did not provide for multi level car parking. According the respondents the car parking is shown in each floor of the proposed commercial building as additional car parking facility. (g) It is lastly stated that the financial bid of 5th respondent records Rs.22,15,00,000/-as share amount, accounted as capital in the annual account for the year 2004-05 and following a query, the 5th respondent executed an undertaking that equity shares would be allotted for a minimum of Rs.10 lakhs, equal to the threshold financial calculation criteria for net worth as specified in the ‘RFQ’. 16. The petitioner filed rejoinder statement dt. 4.3.2009 to the statement of objections of 3rd and 4th respondents reiterating the averments in the memorandum of writ petition and contending that the Chief Engineer (Projects) could not have opined that the petitioner’s RFP was not in accordance with the Building Byelaws after M/s IDECK submitted its report. Though the petitioner proposed 1725 car parking slots, IDECK reckoned only 1470 car parking slots and therefore, the petitioner’s RFP was in accordance with the terms therein. The opinion of Chief Engineer (Projects) on 3.3.2006 is asserted to be an ‘illegitimate’ design to help 5th respondent to ‘obtain the tender by hook and crook’. According to the petitioner, the letter dt.3.3.2006 of the 4th respondent disclosed 750 car parking slots and not additional 500 car parking slots and RFP did not disclose 1936 multi level car parking slots. The RFP provides for BMP’s entitlement to be confined to QMF alone and no stipulation of sharing revenue from car parking and therefore, cannot form a valid basis to award the tender. It is stated that the reports of the second consultant have no legal sanctity. The interpolation in the RFP document, it is alleged, is because neither the report of IDECK nor the area statement of 5th respondent part of the technical bid, made provision for multi level car parking, so also the sectional view of the plan did not disclose multi level car parking, while the technical specification (civil) evidences proposed 1500 car parking. The interpolation in the RFP document, it is alleged, is because neither the report of IDECK nor the area statement of 5th respondent part of the technical bid, made provision for multi level car parking, so also the sectional view of the plan did not disclose multi level car parking, while the technical specification (civil) evidences proposed 1500 car parking. It is next stated that the format of RFP document Annexure-7 did not provide for submission of financial bid in any other form and contrary to assertions of the 5th respondent in the letters dt.3.3.06 and 20.4.2006 over 750 car parking slots, actually mentions 500 car parking slots. It is contended that though the petitioner raised objections to the late submission of RFP by the 5th respondent, nevertheless BMP officials accommodated the 5th respondent in violation of the tender terms and that petitioner did not waive the objection over eligibility/qualification of 5th respondent. It is lastly contended that at the instance of the 5th respondent, neither the Karnataka Government (Transaction of Business) Rules 1977 nor Section 98(4) of the Karnataka Municipal Corporation Act, 1976, for short ‘KMC Act’ enable review of a valid decision by the State Government. 17. The petition is opposed by filing statement of objections dt. 8.5.2009 of 2nd respondent-State of Karnataka, denying the allegations. Having regard to the imperative and imminent need to rehabilitate the displaced families, mostly from the weaker sections of society by construction of residential buildings, in public interest, coupled with the note Annexure-R1 of the Standing Committee for Works and BMP Council that petitioner’s RFP was not in accordance with the Building Byelaws and the opinion of the two consultants that the 5th respondent’s proposal was more beneficial, were circumstances on which orders were passed invoking Section 98(4) of the ‘KMC Act’. The decision, it is stated, is bonafide and on consideration of all relevant material. It is asserted that the need to review the earlier decision of the Executive Committee appointed by the Governor during the President’s Rule followed by the Government Order, was absence of reasons since Section 98(2) mandates reasons to be assigned if the resolution is prejudicial to the interest of the Corporation. 18. Having heard the learned Sr. It is asserted that the need to review the earlier decision of the Executive Committee appointed by the Governor during the President’s Rule followed by the Government Order, was absence of reasons since Section 98(2) mandates reasons to be assigned if the resolution is prejudicial to the interest of the Corporation. 18. Having heard the learned Sr. counsel for the parties, perused the pleadings and examined the order impugned, the core question for decision making is, “whether the award of contract for redevelopment of EWS Housing complex and development of commercial complex at Eijipura, Koramangala, Bangalore to the 5th respondent can be faulted and condemned on any permissible ground of judicial review?” 19. It is trite law that award of contracts by the State, its instrumentalities, statutory bodies and other authorities falling within the meaning of State under Article 12 of the Constitution of India is settled by a catena of reported opinions, a few of which are: 1. Ramniklal N.Bhutta –v- State of Maharastra, [(1977) 1 SCC 1346]; 2. Ramana Dayaram Shetty –v- International Airport Authority of India and others [ AIR 1979 SC 1628 ]; 3. Fertilizer Corporation Kamgar Union –vs- Union of India [(1981)1 SCC 2604]; 4. Central Exercise –v- Dunlop India Limited [(1985)1 SCC 2604]; 5. Ram and Shyam Company –v- State of Haryana [ (1985) 3 SCC 267 ]; 6. Harminder Singh Arora –v- Union of India [ (1986)3 SCC 247 ]; 7. Tata Cellular –v- Union of India [ 1994(6) SCC 651 ]; 8. Raunaq International Limited –v- IVR Constructions Limited [ 1999(1) SCC 492 ]; 9. M/s Monarch Infrastructure Pvt. Limited –v- Commissioner, Ullasnagar Municipal Corporation and others [ 2000(4) Supreme 34 ]; 10. Air India Limited –v- Cochin International Airport Limited and others [ 2000(1) Scale 346 ]; 11. Craig Martin Distillery Pvt. Limited –v- Kerala State Beverages (Manufacturing and Marketing) Corporation Limited [2000(7) Scale 623]; 12. Reliance Energy Limited and another –v- Maharashtra State Road Development Corporation Limited and others [ (2007)8 SCC 1 ]. 20. The observations of the Apex Court in the said decisions could be summarised thus: The award of contract whether 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. 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 any one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation for bonafide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be lowest or highest. However, the State and its Corporations etc., are bound to adhere to the norms, standards and procedure laid down by them and cannot depart from them arbitrarily. Though the decision taken by them is not amenable to judicial review on merit, the Court can examine the decision making process and interfere if it is found vitiated by malafides, unreasonableness, arbitrariness and due to violation of the terms and conditions imposed by the authority itself. 21. In Raunaq International’s case (supra), the Apex Court observed thus: “9. 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 of paramount importance are commercial considerations. These would be: (1) the price at which the other side is willing to do the work: (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take follow-up action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfillment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work – thus involving lager outlays of public money and delaying the availability of services, facilities or goods, e.g., a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation. 11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the courts must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers.” 21. In Jagadish Manlal –v- State of Orissa (2007) 14 SCC 517 Raveendran J., having considered all important earlier pronouncements of the Apex Court which have a bearing on the decision making recorded the summary of findings thus: “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and malafides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii) whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 23. In the factual matrix, the main thrust of the petitioner’s case is that the 5th respondent is ineligible and the bid fit to be disqualified; RFP submitted on 20.2.2006 at 16.45 hours was liable to be rejected; the RFP document was illegally tempered with by the 5th respondent, with the connivance of respondents 6 to 8; the plans submitted by 5th respondent do not disclose multi level car parking; and second evaluation of the RFP by ‘Manasa’ and ‘Strud Geo’ on the basis of NPV is illegal. As regards the challenge to the validity of the decision of the State Government, it is contended that: (i) Review of the Order of the Governor of Karnataka is impermissible since it resulted in a civil action being decided; (ii) The State in order to review the decision of the Governor during President’s Rule ought to have sought leave of the Court in W.P.No.16216/2006 disposed of on 9.06.2008 as infructuous in view of the order dt.29.5.2008 of the Government; (iii) Alternatively it is contended that since the lis between the parties was concluded by the decision of the Governor, the parties were entitled to an opportunity of hearing at the time of review. 24. 24. The first contention of the learned Sr.counsel for the petitioner that the time fixed for submission of RFP being 4 p.m. on 20.2.2006, the 5th respondent having submitted the RFP at 4.05 p.m. as animated in Annexure-L deserved rejection. It is no doubt true that Annexure-L disclose recording the time as 4.05 of submission of RFP by the 5th respondent. However this is clarified by the 5th respondent in its letter of even date acknowledged on the very same date Annexure-R12 to its statement of objections that the wrist watch worn by its representative who submitted the RFP, showed time as 3.56 p.m. A perusal of Annexure-L acknowledgement for receipt of RFPs does not disclose objections of the petitioner or the other participants either at the time of submission of RFP by the 5th respondent or when all the RFPs were opened at 4.30 p.m on the same day. Significantly in the petitioner’s rejoinder statement dt.10.12.2008 to the statement of objections of the 5th respondent, states that after completion of the technical assessment, the financial bids were opened “without any demour from any quarters” lending support to the fact that there was no challenge to the submission of RFP by 5th respondent since it was well before 4 p.m. Considering the clarification put-forth by the 5th respondent in its letter, it is probable that the wrist watch worn by the representative of the 5th respondent who submitted the RFP did show the time as 3.56 p.m. 25. The next contention that the handwritten matter in Appendix 7 to the RFP of 5th respondent Annexure-V is a subsequent insertion by the 5th respondent in connivance with respondents 6 to 8, Officers of the BBMP. According to the learned sr.counsel for the petitioner the interpolation was not found in the original RFP since the format of Appendix-7 proposing QMF required filling up of the offer against two columns (i) in figures and (ii) in words only, while not providing a column for any other proposal. M/s IDECK in its report noticed that the petitioner’s QMF was Rs.1,50,50,500/- while the 5th respondent’s offer was Rs.1,35,00,000/- less by Rs.15,50,500/- and therefore, it is alleged is the reason for interpolation with the active connivance of respondents 6 to 8, followed by the insertion of fresh plans and area statement, after the letters dt. 3.3.2006 and 20.4.2006 claiming multi level car parking slots. 3.3.2006 and 20.4.2006 claiming multi level car parking slots. The RFP, thus not being in the required format, it is contended deserves rejection under clause 1.16 of the RFP document. 26. The said clause reads thus: “1.16. Format and Singing of Proposal: 1.16.1 Bidders would provide all the information as per this RFP and in the specified format. BMP reserves the right to reject any proposal that is not in the specified format. 1.16.2 The Proposal should be submitted in two parts, “Part I Submission: xxxxxxx Part II Submission: (a) This should contain only the Financial Proposal in terms of the amount (in Rupees) proposed to be paid by the bidder to BMP every quarter beginning the Appointed Date (hereinafter referred to as “Quarterly Management Payment” (b) The Financial Proposal should be as per the formats set out in Appendix 7.” An examination of Appendix-7 discloses handwritten portion which reads thus: “Income from multi level car parking to BMP’s share may be considered as an extra income. Sd/- 20.2.2006” 27. The aforestated instructions being the bidding procedure, contained in the RFP, indicates that QMF ought to be expressed in terms of the amount in Rupees, in the format set out in Appendix 7. The instructions do not state that RFP is liable to be rejected if information is furnished in addition to what is sought for in the format. That right to reject the proposal is reserved with the BMP, which it did not exercise. Thus it cannot be gainsaid that the RFP submitted by the 5th Respondent deserved rejection as not being Clause 1.16 complaint. An examination of Annexure-L with the original RFP, discloses that the column providing for figures and words proposing the QMF, is shown as Rs.1,35,00,000/-, nevertheless there is no prohibition to make a written note over other salient features of the Scheme proposing additional fee accruing to the BBMP’s share over an extended period of 30 years. According to the BMP and the 5th respondent M/s IDECK failed to take note of the additional fee from multi-storied parking facility, the sheet anchor for an integrated evaluation of both technical and financial bids by two other consultants. According to the BMP and the 5th respondent M/s IDECK failed to take note of the additional fee from multi-storied parking facility, the sheet anchor for an integrated evaluation of both technical and financial bids by two other consultants. Multistoried car parking facility is animated in the plans submitted by the 5th respondent and is not in dispute and therefore, in the absence of proof it is not possible to presume the insertion in the RFP and fresh set of plans. The allegation that the 5th respondent in connivance with respondents 6 to 8 tampered with the RFP document, it is argued must be presumed since the report of IDECK did not state anything about revenue from multi-level car parking facilities. In the other words the petitioner seeks to draw an inference of connivance. It is elsewhere said that essentials may be inferred when from the facts proved justify the inference. One must not surmise, conjecture or guess, on the other hand draw an inference from proved facts so long as it is a legitimate inference. The contention of the petitioner must necessarily fail. 28. In order to appreciate the contentions of the parties it is necessary to extract clause 1.32 of the RFP relating to “Salient Features of the Project”, which runs thus: “1.32. Salient Features of the Project: (a) BMP shall handover the Site on as is where is within 30 days from the signing of the Concession Agreement. (b) The concessionaire shall finance, engineer, construct and manage 1640 flats in the EWS Facility at no cost to BMP. (c) The Concessionaire shall construct and maintain the EWS Facility as per the specifications set out in the Concession Agreement. (d) The Concessionaire is free to use the remaining land for development of a commercial/residential complex. (e) The commercial/residential complex shall be developed at no cost to BMP. (f) BMP and the Concessionaire shall each own 50% of the commercial/residential complex. (g) Transfer of title of Concessionaire’s share of the commercial/residential complex shall be made upon completion and handover of the EWS Facility and commercial/residential complex to BMP. (h) BMP’s share of the commercial/residential complex shall be handed over to the Concessionaire for management. (i) Concessionaire shall have the right to sub-license/sub-rent the commercial/ residential complex. (g) Transfer of title of Concessionaire’s share of the commercial/residential complex shall be made upon completion and handover of the EWS Facility and commercial/residential complex to BMP. (h) BMP’s share of the commercial/residential complex shall be handed over to the Concessionaire for management. (i) Concessionaire shall have the right to sub-license/sub-rent the commercial/ residential complex. (j) The duration of the maintenance of EWS Facility and management of BMP’s share of commercial / residential complex shall be for a duration beginning their individual CODs and ending the expiry of 30 years from the date of signing of the Concession Agreement. (k) Concessionaire shall handover the EWS Facility and BMP’s share of commercial / residential complex at no cost and good operating condition at the end of the Concession period. (l) Concessionaire shall pay Quarterly Management Payment to BMP, which shall increase by 10% for every block of 3 years.” 29. Having regard to the magnitude of the project and its salient features, supra, more appropriately in matters of civil contract when there is no obligation on the part of the participants to propose a scheme detailing to the last screw, the benefits under each scheme propounded must rest on its comprehensive evaluation by the expert bodies to conclude which of the proposal is advantageous in public interest. 30. The contention that the reports of ‘Manasa’ and ‘Strud Geo’ are not authorised by a competent authority is without merit. Clause 1.24 of the RFP documents reads thus: “1.24 Consultant(s) or advisor(s):- To assist in the examination, valuation and comparison of proposals, BMP may utilise the services of consultant(s) or advisor(s).” The notes at S1.Nos.38, 39, 40, 41 and 42 of Annexure-R15 read thus: 38. “KARNATAKA” 39. “KARNATAKA” 40. “KARNATAKA” 41. In view of finalising the bids, the existing empanelled consultants of BMP namely M/s. Manasa Consultants and M/s. Geostruct Bangalore, their Services may be enlisted. Sd/- 4/3 42. Approved Sd/- 4/3 31. Thus what can be gathered from the notes supra is, that the petitioner proposed 1724 car parking slots each measuring 2.25 mtrs x 4.05 mtrs less than 3.0 mtrs x 6.0 mtrs, prescribed by the BMP (Building Byelaw) 2003 a violation of statutory requirement, being a serious technical flaw and deviation, has a bearing on the salient features of the project as well as cost implications in terms of reduced area and asset value. The 5th respondent proposed 1950 car parking slots, byelaw compliant, at multi levels, entailing in additional benefits in terms of revenue to the BMP and increase in area and asset value, more appropriately in view of the PPP module entitling BMP to only 50% of the built are including car parking space. M/s IDECK, the Advisor Assistant for the project having failed to examine, evaluate the proposals of the petitioner and the 5th respondent, in the manner required of it, the Commissioner for BMP approved the proposal to have the RFP i.e. Technical and Financial offers, of both the petitioner and 5th respondent evaluated by two independent consultants viz., Manasa and Strud Geo. In the light of clause 1.24 extracted supra, it cannot be said that the BMP was disentitled to secure assistance from the two consultants in evaluating the proposals. The further contention that the reports were obtained by the 5th respondent and placed before the BMP though not solicited, cannot be countenanced. 32. Learned Sr.counsel for the petitioner opposes the assertions of the 5th respondent and the BMP that the plans disclose multi level car parking facility, on the premise that the evaluation by M/s IDECK did not reveal so and hence a presumption that plans were replaced and furnished to ‘Manasa’ and ‘Strud Geo’. At the threshold, in the absence of proved facts the drawing of an inference would be on surmise, conjuncture and guesswork. There is force in the submission of the learned Sr.counsel for the respondent who points out to the sectional drawings submitted by the 5th respondent as evaluated by ‘Manasa’ and ‘Strut Geo’ disclosing 38,034 sq.mtrs (30.756 + 7268) in the basement floor and 24,680 sq. mtrs in the upper floors from 1 to 9th floors for car parking, in compliance with the Building byelaws. In other words, 1436 car parking slots in the basement floor as evaluated by IDECK while Strut Geo and Manasa evaluated an addition 60 parking slots in each of the 2nd to 9th floors i.e. 480 slots and 36 numbers in the first floor, put together total to 1,952 (1436 + 516). The report of IDECK reckoned that the petitioner’s proposal if changed according to the dimensions for parking slots as set out in the byelaws could be evaluated as 1425 car parking slots in the basement floor, only, measuring 37210 sq.mtrs (28,060 + 9,150). The report of IDECK reckoned that the petitioner’s proposal if changed according to the dimensions for parking slots as set out in the byelaws could be evaluated as 1425 car parking slots in the basement floor, only, measuring 37210 sq.mtrs (28,060 + 9,150). Thus IDECK having not evaluated this aspect of the technical proposal of the respondent necessitated the BMP to secure the evaluation of the Technical and financial bids of the parties, by two independent consultants. In my opinion, the assertions that the plans submitted by the 5th respondent were replaced is unacceptable. 33. The petitioner having offered Rs.1,50,50,500/- as QMP against the offer of Rs.1,35,00,000/- by the 5th respondent it is contended the petitioner ought to be declared as successful bidder. Learned counsel points out to relevant provisions of the RFP documents which read thus: “1.26. Proposal Evaluation: Part II Submission 1.26.1 Part II Submission of all the Bidders who pass evaluation of Part I submission would be evaluated. 1.26.2 The part I Submission and Part II Submission would be evaluated on the basis of the evaluation criteria set out in Section 2. The Bidder submitting the highest Financial Proposal, as per terms and conditions set out in Section 2, shall be declared as the Preferred Bidder. 2. Evaluation Methodology: 2.2. Evaluation Parameter: 2.2.1 Part II Submission (Financial Proposal) of all bidders who pass the evolution of Part I Submission, would be evaluated on the basis of the proposed Quarterly Management Payment. 2.2 Selection Methodology: 2.2.1 The Financial Proposals would be ranked in descending order of the Quarterly Management Payment, with the Bidder quoting the highest Quarterly Management Payment being ranked first and the Bidder quoting the second highest Quarterly Management Payment ranked as second and so on. 2.2.2 The Bidder ranked first in accordance with the above procedure would be declared as the Preferred Bidder.” 34. The aforesaid evaluation methodology, requires to be understood in the light of the framework policy and salient features of the project, supra, based on which the project was conceived. 2.2.2 The Bidder ranked first in accordance with the above procedure would be declared as the Preferred Bidder.” 34. The aforesaid evaluation methodology, requires to be understood in the light of the framework policy and salient features of the project, supra, based on which the project was conceived. It is not in dispute that IDECK, developed a durable PPP framework and policy, based on past experience of BMP in projects such as ‘Garuda Mall’, ‘Maharaja complex’, ‘Divyashree property’, Madiwala and Siddaiah Road, by adopting the following methodology (a) Evaluation of various PPP options to understand the risk of BMP’s stake and return being revenue accretions to BMP as trade off; (b) evaluation of specific projects of on key parameters relating to achievement of objectives of the project; overall benefit to BMP; compliance to agreement obligations by project developer; contract management and project returns. The objectives of BMP was to unlock commercial value of a portion of the property, reduce vehicular congestion with retained risk of market demand or volume risk for its share while capital investment excluding land being nil and partial commercial risk, the financial accruals, cash inflow, returns in terms of rupees per square foot, per month, and BMP’s share in potential upside over the asset life. In terms of the project BMP would relinquish ownership of the land in lieu of 50% of built area, to be maintained by the builder for a period of 30 years. 35. The 5th respondent offered QMP of Rs.1,35,00,000/-, in addition to income from multi level car parking which M/s IDECK did not evaluate in accordance with the framework and salient features of the policy, since it eschewed from consideration the additional income proposed by the 5th respondent and as the petitioner offered QMP of Rs.1,50,50,500/- recommended petitioner as the first preferred bidder, while 5th respondent as the second. It is a matter of fact that this aspect when brought to the notice of the BMP by the letter dt. 3.3.2006 of the 5th respondent, necessitated an integrated evaluation of the financial and Technical bid in the RFP of both the petitioner and the 5th respondent by the two independent consultants. It is a matter of fact that this aspect when brought to the notice of the BMP by the letter dt. 3.3.2006 of the 5th respondent, necessitated an integrated evaluation of the financial and Technical bid in the RFP of both the petitioner and the 5th respondent by the two independent consultants. The car parking slots numbering 1425 evaluated by IDECK in the RFP of the petitioner though the petitioner proposed 1724 car parking slots, in contrast with 1952 car parking slots proposed by the 5th respondent, as evaluated by ‘Manasa’ and ‘Strud Geo’, entitles the BMP to financial gain by way of fee for car parking from its 50% share; project returns; asset life, reducing vehicular congestion, in public interest. 36. Viewed in this perspective regard being had to the policy by which the project was conceived, coupled with the salient features of the project as set out at clause 1.32, being more in the nature of a joint venture, whereunder 50% of the development both commercial and residential fall to the share of BMP, as owner, to be maintained by the concessionaire (builder) for a period of 30 years, together with payment of Quarterly management fee, no exception can be taken to the action of the BMP to secure an integrated evaluation of the Technical and financial bids in the RFP of the petitioner and 5th respondent. The BMP was required to sit in the arm chair of a shrewd businessman evaluate the pros and cons of the proposals to conclude which among them was beneficial, in the interest of public, since ownership right over 50% of the immovable property in question being public property was to be relinquished, in lieu of 50% of built area. In the circumstances, the contention of the petitioner that being the highest bidder, applying a straight jacket formula, is entitled to be declared the successful bidder, is without merit. 37. In order to evaluate the financial gain, required an assessment on a common platform integrating both technical and financial proposals of the petitioner and the 5th respondent. In the circumstances, the contention of the petitioner that being the highest bidder, applying a straight jacket formula, is entitled to be declared the successful bidder, is without merit. 37. In order to evaluate the financial gain, required an assessment on a common platform integrating both technical and financial proposals of the petitioner and the 5th respondent. The two consultants ‘Manasa’ and Strut Geo’, worked out the net present value (NPV) of BMP’s share based on the following criteria: (a) Construction cost; (b) annual escalation cost; (c) revenue from additional car parking facility; (d) Net Present Value at the end of 30 years, to arrive at the following; ANNEXURE – I COMPARATIVE STATEMENT OF AREAS-EWS QUARTERS DEVELOPMENT S1.No Description of Parameter M/s. Akruthi Nirman Pvt. Ltd. M/s. Maverick Holdings M/s. IDECK M/s. Manasa M/s. Struck Geotech M/s. IDECK M/s. Manasa M/s. Struct Geotech 1 Area of EWS Quarters Construction 627000 sft 608990 sft 612413 sft 627000 sft 649593 sft 653236 sft 2 BMP share of EWS Quarters 627000 sft 608990 sft 612413 sft 627000 sft 649593 sft 653236 sft 3 Commercial area (including MLCP) 735000 sft 792836 st 718392 sft 730000 sft 893215 sft 1068941 sft 4 BMP share of commercial quarters 367500 sft 396403 sft 359196 sft 367500 sft 446608 sft 544471 sft 5 Carparking area 159256 sft 159256 sft 159256 sft 283122 sft 283122 sft 283122 sft 6 BMP share of parking 79628 sft 79628 sft 79628 sft 141561 sft 141561 sft 141561 sft 7 Absolute value of quarterly management fees Rs.287.84 crores - - Rs.258.19 crores -8 Net present Value Rs.92.99 Crores Rs.78.45 Crores Rs.101.11 Crores Rs.83.41 Crores Rs.104.15 Crores Rs.120.26 Crores 38. In the circumstances, the integrated evaluation of the technical and financial proposals of the petitioner and the 5th respondent, to arrive at Net Present Value (NPV) on BMP’s share cannot be found fault with. Thus it cannot be said that a new condition for consideration based on NPV was applied in evaluating the RFP document and that “rules of the game have been changed after the game started.” 39. The respondent-BMP is invested with powers coupled with duties under the ‘KMC Act’, more appropriately under Section 348, an enabling provision to construct or provide public halting places for vehicles and charge and levy such fees for use of the same as a Standing Committee may fix from time to time. The respondent-BMP is invested with powers coupled with duties under the ‘KMC Act’, more appropriately under Section 348, an enabling provision to construct or provide public halting places for vehicles and charge and levy such fees for use of the same as a Standing Committee may fix from time to time. The Apex Court in Corporation of the City of Bangalore ( AIR 1994 SC 487 ) considering the scope and ambit of Section 348 held thus: “5. After hearing both counsel, we are of the opinion that this appeal has to be allowed. The respondents are a group of businessmen and if land is needed for them to carry on their business, it is for them to acquire the land needed for he said purpose out of their own resources. They cannot be allowed to treat the land belonging to the Corporation virtually as a firewood mandi. Section 348 of the Corporation Act is an enabling provision which empowers the Corporation to construct or provide public halting places for vehicles and charge and levy such fees for use of the same as a standing committee may fix from time to time. It is true that this power is coupled with a duty and the Corporation consistent with the availability of sites belonging to it and in public interest should take steps to meet the real requirements of cross-sections of the public for suitable parking places inside or outside the city limits as public interest may require. But this is a matter on which the Corporation will have to take a decision on a consideration of all relevant factors, such as congestion of traffic, law and order situation, pollution problems, sanitary and other requirements and so on. The provision cannot be construed as creating an unqualified right on the part of any and every group of persons to insist that the Corporation should provide a parking place for its vehicles. The statute will become unworkable if the section is construed as obliging the Corporation to allot a parking place to any and every association such as that of the respondents to park their vehicles. We do not think that the High Court was correct in directing the Corporation to continue to provide the site in dispute to the respondents for an indefinite period of time. We do not think that the High Court was correct in directing the Corporation to continue to provide the site in dispute to the respondents for an indefinite period of time. At best, there can only be a direction to them to consider the needs of the respondents, in the context of the requirements of public interest, examine if they can be accommodated elsewhere inside or outside the city limits and, if it is possible to permit the respondents to park their vehicles on such site on such terms and conditions as may be decided upon. We direct accordingly.” Viewed thus, the integrated evaluation of the RFPs of the parties on the basis of NPV a common platform, by Manasa and Strut Geo, is in consonance with the basis for conceiving the project more appropriately “to reduce vehicular congestion in the gateway to the I.T.Corridor”, keeping in mind the present day malady of Bangalore roads, unable to cope up with the evergrowing density of vehicular population. 40. According to the petitioner the 5th respondent’s proposal deserved rejection since it did not comply with the financial capability under clause 3.5 of the RFQ which reads thus: “3.5 Evaluation Criteria for Financial Capability: 3.5.1 For the purpose of Qualification, an Applicant would be required to demonstrate the Financial Capability measured on the criteria below. The applicant would have to satisfy atleast two out of the given three criteria. Financial Capability Qualification Criteria a. Average income of the applicant for the last two completed financial years shall be atleast Rs.20 crores; b. Net worth of the applicant as on March 31, 2005 shall be atleast Rs.10 crores; c. Aggregate net cash accruals of the applicant for the last two completed financial years shall be atleast Rs.five crores.” Appendix 6 of the RFQ provides general instructions which reads thus: “General Instructions: 1. Net Cash Accruals For Company – (Profit After Tax / Depreciation / Non cash Expenses) For Partnership Firm – (Profit After Tax / Depreciation / Non cash Expenses / Salary / Emoluments paid out to Partners) 2. Net Worth For Company (Subscribed and Paid-up Capital / Reserves) – (Revaluation reserves / Miscellaneous expenditure not written off) For Partnership Firm – Aggregate of partners’ capital account / Reserves – Aggregate of drawings by partners – Aggregate of advances to partners 3. Year 1 shall be the Financial Year 2004-2005. Net Worth For Company (Subscribed and Paid-up Capital / Reserves) – (Revaluation reserves / Miscellaneous expenditure not written off) For Partnership Firm – Aggregate of partners’ capital account / Reserves – Aggregate of drawings by partners – Aggregate of advances to partners 3. Year 1 shall be the Financial Year 2004-2005. Year 2 shall be the Financial Year 2003-2004. 4. The financial year would be the same as the one normally followed by the Applicant for its Annual Report. 5. The Applicant shall provide the audited annual financial statements as required for the RFQ. Failure to do so would be considered as a non-responsive bid. 6. The Applicant should clearly indicate the calculations and references in the financial statements in arriving at the above numbers in an attached worksheet.” 41. The report of IDECK on the RFQ evaluation, it is contended though observed that the 5th respondent is ineligible, nevertheless the 7th respondent-Asst. Commissioner addressed a letter dt. 28.12.2005 to the 5th respondent informing that it had qualified for submission of the proposal subject to executing the letter of undertaking as per the format enclosed therein. 42. This submission is factually incorrect. The report Annexure-R20 to the statement of objections of the 5th respondent, submitted by IDECK pursuant to the pre-bid exercise discloses a summary of the preliminary evaluation recording that the 5th respondent is “Provisionally Qualified” and on obtaining clarification from the 5th respondent, the final evaluation summary records that the 5th respondent is qualified and reads thus: “Maverick Holdings and Investments Pvt. Ltd. (MHIPL) has a sum of Rs.22,15,00,000 (Rupees Twenty Two Crores and Fifteen Lakhs only) as Share Application Money which has been accounted as Capital in the Annual Accounts for the year 2004-05. This Share Application Money been considered for the computation of the Networth. A letter of undertaking (format of letter enclosed) shall need to be obtained from MHIPL indicating that in the event of MHIPL is selected as the Successful Bidder for the captioned project, MHIPL shall complete the allotment of equity shares for a minimum sum of Rs.10,00,00,000/- (Rupees Ten Crores Only) (equal to the threshold financial qualification criteria for Networth as specified in the RFQ) within 15 days of such intimation of selection as Successful Bidder and provide proof of the same.” 43. Following the observation of IDECK in its report supra, the 7th respondent-Additional Commissioner (Finance), BMP by letter dt. Following the observation of IDECK in its report supra, the 7th respondent-Additional Commissioner (Finance), BMP by letter dt. 28.12.2005 Annexure-F enclosed a format of the letter of undertaking for compliance by the 5th respondent which was duly complied. In that view of the matter no exception can be taken to the BMP’s action and the undertaking of the 5th respondent. 44. A faint effort by the petitioner to contend that 5th respondent’s balance sheet for the years 2003 and 2004 put together “do not meet the criteria of average income of Rs.20 crores for the last two completed financial years” by filing Misc.W.2868/2010 for amendment of the writ petition raising additional grounds, though allowed on payment of cost quantified at Rs.50,000/- when not complied with, the additional grounds are unavailable to the petitioner. 45. Even otherwise the criteria in the RFP is average income for the financial years 2003-04 and 2004-05 and not 2002-03 and 2003-04 as contended. Learned Sr.counsel for the 5th respondent is correct in pointing out to the audited balance sheet for the years 2003-04 and 2004-05 disclosing Rs.50,26,80,972/- as total income and the average of two years being Rs.25,13,40,486/- is more than Rs.20 crores. The 5th respondent declared Rs.22,15,00,000/- as share application money, and accounted as capital in the audited annual accounts for the year 2004-05, which when reckoned to compute the net worth, is compliance with the financial criteria. 46. The last of the contentions advanced by the petitioner need not detain the court for long. During the pendency of W.P.No.16216/2006 filed by the petitioner challenging the resolution dt. 30.10.2006 of the BMP accepting the resolution dt. 19.5.2006 of the Committee for Works, recommending the award of the project to the 5th respondent, the Governor, during President’s rule appointed an Executive Committee which passed the order dated 23.5.2008 to cancel the resolution dt. 30.10.2006 of the Council of the BMP, reads thus: SUBJECT FOR CONSIDERATION BY THE EXECUTIVE COMMITTEE CASE SHEET Department file No: UDD 261 MNG 2006 Date of issue of Executive Submission Note: Circulated Subject, Committee Case No.ECC 198/2008 Date of Executive Committee meeting Serial Number in the Agenda 23.05.2008 4 SUBJECT: Joint venture project under the Private-Public-Participation (PPP) mode at Ezipura, Koramangala. DECISION OF THE EXECUTIVE COMMITTEE The Executive Committee decided to cancel the resolution No.13(306) dated 30.10.2006 passed by the Council of Bruhat Bangalore Mahanagara Palike and directed the Department of Urban Development to communicate the decision after getting the concurrence from the Election Commission. Sd/-(RAMESHWAR THAKUR) GOVERNOR OF KARNATAKA 23.5.2008 “KARNATAKA” 47. Thereafter the Governor on 29.5.2008 passed the following order: “As directed by H.E. the Governor, the File was called from the Cabinet Section and the issue was discussed, with the Advocate General. The Advocate General has opined the His Excellency the Governor may order as follows: “Now that the Executive Committee has cancelled the BBMP Resolution, the Department and the BBMP are directed to take further action, taking into consideration all material, including the IDECK Report dated 24th February 2006 as well as the condition of the buildings during monsoon and the urgency to provide adequate shelter to the families.” H.E. may order as above. Sd/- 29.5.2008 (Sharada Subramaniam) Special Secretary to Governor.” H.E. 48. Following the said order, the State Government issued Govt. Order dt. 9.6.2008 Annexure-‘AH’ exercising power under Section 29(3) of the ‘KMC Act’, which when placed before this court W.P.16216/2006 was dismissed as having become infructuous by order dt.9.6.2008. 49. There afterwards the petitioner, the 5th respondent and an association representing the displaced families petitioned the popular government installed on 30.5.2008, whence the State Government having noticed that the order dt. 23.5.2008 of the Governor the basis for the G.O. dt.9.6.2008, not being a speaking order since reasons were not forthcoming and no consideration of relevant materials, tantamounted to denial of justice in the matter of cancelling the Councils resolution dt.30.10.2006, exercised jurisdiction under Subsection (4) of Section 98 of the ‘KMC Act’ to pass the order impugned. Section 98(4) of the ‘KMC Act’ reads thus: “98. Submission of copies of resolution to Government and Governments’s power to cancel resolution and orders: 1 Xxxxxxxx 2. xxx 3. xxx 4. Government may at any time, on further representation by the Corporation or otherwise, revise, modify or revoke an order passed under sub-section (3).” 50. Section 98(4) of the ‘KMC Act’ reads thus: “98. Submission of copies of resolution to Government and Governments’s power to cancel resolution and orders: 1 Xxxxxxxx 2. xxx 3. xxx 4. Government may at any time, on further representation by the Corporation or otherwise, revise, modify or revoke an order passed under sub-section (3).” 50. The source of power thus being validly traced and regard being had to the consideration of relevant material having a bearing on the decision making, the exercise of statutory power cannot be struct down on the ground that review of the order of the Governor required the leave of this court in W.P.16216/2006 since dismissed as infructuous by order dt. 9.6.2008. The further contention that the order dt. 9.6.2008 dismissing W.P.16216/2006 resulted in a civil action being decided, in the circumstances, cannot be countenanced. The contention, in the alternative, that the Governor’s decision, decided the lis between two bidders and hence they were entitled to an opportunity of hearing, is unacceptable. I say so because while cancelling the resolution dt. 30.10.2006 of the BMP when cancelled by the Executive Committee of the Governor, no direction was issued to award the project to the petitioner and hence there was no necessity for the State to extend an opportunity of hearing before revoking that order. Even otherwise a fair consideration of the offers of the petitioner and the 5th respondent no civil rights are involved. This court, it is needless to state has to consider the larger interest of public rather than the inter-se interest between rival bidders, as observed by the Apex Court in Raunaq International and Jagadish Manlal’s case (supra). 51. Byelaw 9.10.3 of the Bangalore Mahanagara Palike Byelaws, 2003 (for short ‘Byelaw’) states Floor Area Ratio (FAR) as the aggregate area of the floors of all parts of the building including kitchen, parking area, staircase rooms, ramps, escalators, machine rooms, balcony, ducts including sanitary ducts, water tank, lobbies, corridors and such other parts provide for common service, while exempting floor area used for parking space, staircase rooms, ramps, escalators, machine rooms, open balcony, ducts including sanitary ducts and water tanks. Having regard to the magnitude of the construction of the residential multi-storied flats for EWS as offered by the petitioner being 6, 12, 413 sq.ft while that offered by the 5th respondent is 6,53,236 sq.ft and the commercial building of 11,97,640 sq.ft and 13,07,374 sq.ft respectively, requires technical expertise in the matter of evaluation of RFPs and is best to leave the matter for decision of those who are qualified to address the issues as has been done by the BMP calling upon an evaluation of RFPs by two consultants. The action of the BMP or the evaluation by the consultants in my considered opinion cannot be characterised as neither arbitrary or irrational so as to call for interference. 52. The observation of a Division Bench of this Court in S.M.Rao and others –v- Deputy Commissioner and others in W.A. No.2669/1999 and batch DD 6.8.2003, considering the scope of judicial review of administrative experts in the circumstances is apposite: “46. Two overriding considerations should weigh with and guide the reviewing Court to narrow the scope of review. The first is that of deference to the administrative expert. Chief Justice Neely in Monongahela Power Co. V. PSC (179, 189(W.Va.1981) observed thus: “I have very few illusions about my own limitations as a judge and from those limitations I generalize to the inherent limitations of all appellate Courts reviewing rate cases. It must be remembered that this Court sees approximately 1,262 cases a year with five judges. I am not an accountant, electrical engineer, financier, banker, stock broker, or systems management analyst. It is the height of folly to expect judges intelligently to review a 5,000 page record addressing the intricacies of public utility operation.” 47. In Barnes County V. Garrison Diversion (312 N.W.2d 20, 25 (n.d.1981), it was held that it is not the function of the judge to act as a super board. Further, in Western Coal League v. United States (694 f.2d 378 (5th Cir, 1982), it was held that the reviewing judge cannot act with the zeal of a pedantic schoolmaster. In Barnes County V. Garrison Diversion (312 N.W.2d 20, 25 (n.d.1981), it was held that it is not the function of the judge to act as a super board. Further, in Western Coal League v. United States (694 f.2d 378 (5th Cir, 1982), it was held that the reviewing judge cannot act with the zeal of a pedantic schoolmaster. In Granville V. Gregory (83 Mo.123, 137 (1884)), it has opined that if a Court were to review fully the decision of a body such as a State board of medical examiners – “it would find itself wandering amid the mazes of therapeutics or boggling at the mysteries of the pharmacopoeia.” In Steenerson v. Great North R.R.(72 N.W.713, 716 (Minn. 1897)) it was opined that the situation pointed out in Granville V. Gregory (supra), is not a case of the blind leading the blind, but of one who has always been deaf and blind insisting that he an see and hear better than one who has always had his eyesight and hearing and has always used them to the utmost advantage in ascertaining the truth in regard to the matter in question. 48. Thus it is not within the legitimate power of the Court within the domain of judicial review power to lightly interfere with an administrative or executive action, particularly when the base of which is the technical know-how and expertise in the specialised filed. We do not find any flaw, legal or factual, on the part of the Board in altering the method of laying lines and by that action none of the legal rights of the appellants-petitioners are impaired or violated. On the other hand, the discussion supra clearly shows that the alteration of the method is in the interest of the appellants-petitioners and the similarly circumstanced others.” 53. Before parting I must place on record the tenacious and pains taking advocacy presented by the learned senior counsel for the parties and the learned Advocate General for the State. The subject matter and assistance rendered by the two consultants said to be experts in the field of civil engineering, based on their expertise, experience in similar nature of work in the past, their decisions cannot be lightly interfered with. The subject matter and assistance rendered by the two consultants said to be experts in the field of civil engineering, based on their expertise, experience in similar nature of work in the past, their decisions cannot be lightly interfered with. Moreover exercise of writ jurisdiction is not as a court of appeal and this court has no jurisdiction to substitute its own opinion for the opinion of experts or statutory authorities, even if the decision taken is wrong provided the authority has acted in good faith and has taken all relevant considerations into account and eschewed all irrelevant considerations and exercise power in law to promote a public interest. Writ jurisdiction, it is well known is not a cloak of appeal in disguise, where correctness of the orders of the Government or statutory authority could be canvassed so as to substitute its own views in entirety of the power, jurisdiction and discretion vested by law in such authority. So long as the action of the authority, under review, is not tainted by malafides and the authority has not overstepped the constitutional and legal limits, the Court should show deference to the decision of the authority. Yet again it is elsewhere stated that “while fair play is an essential requirement, free play in the joint is necessary concomitant.” 54. On a fair consideration of all relevant facts and circumstances of the case, I find that the writ petition is without justification and devoid of merit. In the result, the Writ Petition No.13918/2008 is dismissed with cost quantified at Rs.50,000/-. Writ Petition Nos.14564-565/2009 are ordered accordingly, and a mandamus is issued to the respondent-BMP to ensure the construction of the Buildings immediately and put the displaced families in occupation of the residential flats.