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2011 DIGILAW 345 (GAU)

Swadesh Ch. Saha v. State of Tripura

2011-04-19

UTPALENDU BIKAS SAHA

body2011
JUDGMENT U.B. Saha, J. 1. The writ Petitioner, who is a class-1 contractor registered with the Public Works Department CPWD'), Government of Tripura, filed the instant writ petition for quashing the Press Notice Inviting Tender No. EE-/IED/106/2009-10 dated 23.12.2009 (Annexure 1 to the writ petition) whereby and whereunder the Respondent No. 4, Executive Engineer, Internal Electrification Division, PWD invited sealed percentage rate tender(s) for the work "Construction of Examination Branch at Tripura University Complex, Surjamaninagar/providing concealed Internal Electrification thereof from the Central and State Public Sector Undertaking/enterprise and eligible Contractors/Firms/Agencies of appropriate class registered with PWD/TTAADC/MEC CPWD/Railway/Other State PWD for the work, namely, "Construction of Examination Branch at Tripura University Complex, Surjamaninagar/providing concealed Internal Electrification thereof (2nd Call)" and to cancel and set aside the Press Notice Inviting Tender No. EE-EED/06/2010-2011 dated 6.4.2010 whereby and whereunder the Respondent No. 4 invited sealed percentage rate tender(s) and also for a direction to the Respondents to perform their respective duties and issue work order in favour of the Petitioner as he has become the first lowest formal tenderer in respect of the Press Notice Inviting Tender ('TNIT') dated 23.12.2009 (Annexure 1 to the writ petition) along with other prayers. 2. Heard Mr. K.N. Bhattacharjee, learned senior counsel assisted by Mr. S, Acharjee, learned Counsel for the Petitioner as well as Mr. S. Chakraborty, learned Addl. Government advocate for the State Respondents. 3. Taking note of the prayer of the Petitioner and the question involved in the writ petition and as agreed to by the learned Counsel for the parties, the instant writ petition was taken up for final disposal at the admission stage. 4. Brief facts needed to be discussed are as under-Respondent No. 4, Executive Engineer (EL), Internal Electrification Div., PWD invited tender(s) from the Central and State public sector undertaking/enterprise and eligible Contractors/Firms/Agencies of appropriate class registered with PWD/TTAADC/MEC/CPWD/Railway/Other State PWD vide PNIT No. EE-IED/106/2009-10 dated 23.12.2009 (Annexure 1 to the writ petition) for the work "Construction of Examination Branch at Tripura University Complex, Surjamaninagar/providing concealed Internal Electrification thereof. The Petitioner being an eligible contractor submitted his tender complying all the formalities as required. The Petitioner being an eligible contractor submitted his tender complying all the formalities as required. In the said tender process, including the Petitioner, 8 tenderers submitted their respective tenders and the tender box was opened on 6.1.2010 in presence of the tenderers/representatives of the tenderers and the Assistant Engineer concerned as well as the Respondent No. 4, Executive Engineer and after opening of the tenders of the respective tenderers four tenders were found formal and others were rejected being informal and out of the formal tenders the tender of the Petitioner was declared as lowest formal tender by the Respondent No. 4, tender inviting authority and on preparation of comparative statement the said Respondent recommended the tender of the Petitioner as first lowest to the Respondent No. 3, Superintending Engineer, Second Circle for consideration, who in his turn recommended the tender of the Petitioner for acceptance to the higher authority. 5. When the tender of the respective tenderers were under consideration for decision, the Petitioner came to know from official sources that while the matter of issuing work order in favour of him was in progress the Chief Engineer, Respondent No. 2 invited one informal tenderer for negotiation without calling any other tenderer including the Petitioner though there was no protest against the declaration of the Petitioner as the first lowest tenderer by the Respondent No. 4. The Petitioner further came to know that after discussion with the said informal tenderer the Chief Engineer, Respondent No. 2 has issued Letter/Note to cancel the PNIT dated 23.12.2009 (Annexure 1 to the writ petition) and to issue another PNIT (Annexure 2 to the writ petition) as second call. 6. Further contention of the Petitioner is that he also came to know that relating to cancellation of the tender and issuance of PNIT (2nd call) there was difference of opinion between the concerned officers which would be evident from the concerned note sheet, if produced, that the PNIT dated 23.12.2009 was cancelled with mala fide intention for extraneous consideration. The Petitioner gradually came to know about the aforesaid facts and he also collected the copy of the letter of cancellation and official note relating to the cancellation of the said tender from the stage of opening of the tender to the issuance of cancellation order. 7. The Petitioner gradually came to know about the aforesaid facts and he also collected the copy of the letter of cancellation and official note relating to the cancellation of the said tender from the stage of opening of the tender to the issuance of cancellation order. 7. Being aggrieved by the order of cancellation of the PNIT dated 23.12.2009 (Annexure 1 to the writ petition) the Petitioner also collected the letter dated 6.4.2010 written by the Superintending Engineer, Project Circle, PWD (R&B) to the Respondent No. 3, Superintending Engineer, 2nd Circle, PWD (R&B) wherein the Superintending Engineer, Project Circle, informed the Respondent No. 3 that the documents as forwarded have been examined and submitted to the Chief Engineer, PWD (R&B) for his consideration and the Chief Engineer, PWD (R&B) rejected the tender on the following grounds: (a) Competition though made, but not in if proper manner which indicates low keenness by the bidders, (b) Tender evaluation at the EE level was improper, (c) Recall with wide publicity by giving 15 days time, and the letter dated 31st March, 2010 written by the Executive Engineer, Project Circle (PWD) by which the informal tenderer Sri Ratan Kr. Acharjee was requested to meet with the Chief Engineer, PWD (R&B), Respondent No. 2 herein in connection with the Construction of Examination Branch at Tripura University Complex, i.e., the work in question and also the letter dated 31st March, 2010 written by the Executive Engineer, Project Circle to the Respondent No. 4 requesting him to remain present with all documents/clarifications relating to the work in question during their discussion to be held with said Sri Ratan Kr. Acharjee in the chamber of the Chief Engineer, Respondent No. 2 and the comparative statements prepared by the Respondent No. 4 and other materials including the recommendation of the Superintending Engineer, Second Circle, PWD (R&B) recommending the tender of the Petitioner for acceptance. 8. Upon receipt of the aforesaid documents (Annexure 4 series to the writ petition) it appears to the Petitioner that the rejection of the tender and inviting of fresh tender was done with mala fide intention to deprive the Petitioner of his legitimate right to perform work being successful tenderer recommended by the competent authority. 8. Upon receipt of the aforesaid documents (Annexure 4 series to the writ petition) it appears to the Petitioner that the rejection of the tender and inviting of fresh tender was done with mala fide intention to deprive the Petitioner of his legitimate right to perform work being successful tenderer recommended by the competent authority. Being aggrieved by the action of the Respondents, the Petitioner sent a demand notice seeking justice from the Respondents but the Petitioner has not been informed anything and, hence, this writ petition. 9. The State Respondents resisted the contention of the Petitioner by way of filing counter affidavit wherein it is stated that the Petitioner is not entitled to the relief sought for, he being not the lowest tenderer and his no right to get the work order for the work in question. Further case of the Respondents as stated in their counter affidavit is that the tender evaluation at the Executive Engineer level was improper and recall of the tender with wide publicity by giving 15 days time was instructed by the competent authority. It is also stated that Sri Ratan Kr. Acharjee quoted 11.11% below the estimated cost and is the lowest tenderer and the Petitioner who quoted the rate 6% below the estimated cost is the second lowest tenderer. 10. The Respondents have also filed their additional counter affidavit against the amended portion of the writ petition and in the said additional counter affidavit they denied the contention of the Petitioner that the fresh tender was called with mala fide intention to deprive him. According to them, the PNIT (2nd call) was issued to save public money. 11. Mr. Bhattacharjee, learned senior counsel for the Petitioner after taking this Court through the materials, particularly Annexure 4 series to the writ petition, would contend that when the Executive Engineer, Respondent No. 4 and the Superintending Engineer, Second Circle, Respondent No. 3 found the tender of the Petitioner as the formal lowest tender as he quoted the percentage rate at the rate of 6% below the estimated cost and recommended his tender for acceptance, the Respondent No. 2 without considering the same proceeded for negotiating with the informal tenderer, Sri Ratan Kr. Acharjee and ultimately asked the authority like the Respondent No. 4, tender inviting authority to cancel the PNIT dated, 23.12.2009 (Annexure 1 to the writ petition) and to issue the PNIT (2nd call), dated 6.4.2010 which is nothing but mala fide action with an ulterior motive. 12. He further contended that before calling the informal tenderer Sri Ratan Kr. Acharjee, Respondent No. 2 should have called the present Petitioner and ought to have given prior hearing to the Petitioner before cancellation of the first PNIT (Annexure 1 to the writ petition) and issuing the second PNIT (Annexure 2 to the writ petition) as the Petitioner has acquired a right to get the work order for the work in question being the formal lowest tenderer. 13. Mr. Bhattacharjee referring to the letter dated 31st March, 2010 (Annexure 4 series to the writ petition) issued by the Executive Engineer. Project Circle, PWD (R&B) to one Sri Ratan Kr. Acharjee, who according to the Petitioner as well as Respondent Nos. 3 and 4 is an informal tenderer, tried to convince this Court that the said letter itself is the proof of mala fideness on the part of the Chief Engineer, Respondent No. 2. 14. He further contended that though Sri Ratan Kr. Acharjee quoted his percentage rate at the rate of 11.11% below the estimated cost but said Sri Acharjee did not submit his solvency certificate along with the tender documents as required under item 3.3(C) of the qualification criteria. 15. Mr. Chakraborty, learned Addl. Government advocate, while raising the question of maintainability of the instant writ petition would contend that the Petitioner, allegedly being the formal lowest tenderer, has no right to question the Respondents' decision, the decision of the administrative authority regarding the cancellation of PNIT dated 23.12.2009 as the same was taken to save the public exchequer. He further stated that the contract awarding authority is the best judge to decide whether he will accept the rate of the lowest tenderer or not. His further contention, inter alia, is that submission of solvency certificate is not an essential pre-condition but a general condition and the tendering authority has the power even to waive the general conditions prescribed in the PNIT like submission of solvency certificate, as per the law laid down by the Apex Court in catena of decisions. His further contention, inter alia, is that submission of solvency certificate is not an essential pre-condition but a general condition and the tendering authority has the power even to waive the general conditions prescribed in the PNIT like submission of solvency certificate, as per the law laid down by the Apex Court in catena of decisions. According to him, the requirements in a tender notice can be classified into two categories - one which lays down the essential conditions of eligibility and the other which contains merely ancillary or subsidiary with the object to be achieved by the conditions. The essential conditions of eligibility as prescribed in the PNIT cannot be waived. General conditions as prescribed are not required to be rigidly followed. He further contended that in the instant case the Respondents did not issue the work order in favour of Sri Ratan Kr. Acharjee whose rate was lower than the rate of the Petitioner. Rather the authority cancelled the entire process of tender so that the authority can go for invitation of fresh tender and also save the public exchequer. Therefore, it cannot be said that the Respondents either acted with a mala fide intention or with an ulterior motive. 16. He further contended that the writ court while exercising its review jurisdiction is not empowered to examine the administrative decision of the Executive Authority like the Respondents but it can examine the decision making process. He finally contended that merely an allegation of mala fide or bias in the writ petition is not enough for the Petitioner to get the relief as sought for, he has to prove the same placing the materials before the court regarding his allegation and he has also to plead as to who is the author of the mala fide action and has to be made party that person in the writ proceeding or suit which is totally missing in the pleadings of the Petitioner. 17. 17. Having heard the learned Counsel and on perusal of the pleadings of the rival parties, question arises for decision as to whether the authority which issued the PNIT has the power to terminate/cancel and whether he can issue fresh PNIT for the same work and waive certain conditions put in the PNIT and whether he can call one of the tenderers who quoted a lesser rate than the rate of the Petitioner whose tender was recommended for acceptance being the formal lowest tenderer. 18. In Poddar Steel Corporation v. Ganesh Engineering Works and Ors. (1991) 3 SCC 273 the Apex Court while dealing with a matter relating to rejection of tender of the Respondent therein and the acceptance of the tender of the Appellant therein which was under challenge before the writ court and carried up to the Apex Court wherein the Apex Court while deciding the issue noted that, "It is true that in submitting its tender accompanied by a cheque of the. Union Bank of India and not of the State Bank Clause 6 of the tender notice was not obeyed literally, but the question is as to whether the said noncompliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and it not entitled to waive even a technical irregularity of litter or no significance. The requirements in a tender notice can be classified into two categories -those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to the achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases". The same issue was also examined by the Apex Court in G.J. Fernandez v. State of Karnataka and Ors. 1990 2 SCC 488 . 19. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases". The same issue was also examined by the Apex Court in G.J. Fernandez v. State of Karnataka and Ors. 1990 2 SCC 488 . 19. Non-submission of solvency certificate undoubtedly violated the terms of conditions in the PNIT but in view of the judgment of the Apex Court in Poddar Steel Corporation (supra) and G.J. Fernandez (supra) it can be easily said that the said condition being not an essential condition, the Respondent tender inviting authority has the right to waive the said condition and also when the alleged informal tenderer Sri Ratan Kr. Acharjee quoted lesser rate than the Petitioner, the Respondent-authority has the right to call the said tenderer for negotiations to save public exchequer but while calling the said tenderer the authority should have called the present Petitioner whose tender was recommended by the Respondent Nos. 3 and 4 as a formal tender and sent for consideration of acceptance to see whether he can also lower down his rate at par with the rate of Sri Ratan Kr. Acharjee. This being the position, it can be said that the contention of Mr. Chakraborty relating to waiving of the general conditions by the Respondents tendering authority has some force. 20. Now let us see whether there is any mala fide in the action of the Respondents while taking the decision of cancellation of PNIT dated 23.12.2009 (Annexure 1 to the writ petition) and issuing the subsequent PNIT (2nd call) (Annexure 2 to the writ petition) as alleged by the Petitioner. 21. In State of Bihar and Anr. v. P.P. Sharma, IAS and Anr. (1992) Supp (1) SCC 222, the Apex Court dealt with the words 'mala fides'. In the view of the Apex Court, 'mala fides' means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose, which would be evident from para 50 of the aforesaid decision of the Apex Court. It would be profitable for us to understand what is mala fide and to quote the said paragraph 50. Accordingly para 50 of the said judgment is reproduced hereunder: 50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. It would be profitable for us to understand what is mala fide and to quote the said paragraph 50. Accordingly para 50 of the said judgment is reproduced hereunder: 50. Mala fides means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. An administrative authority must, therefore, act in a bona fide manner and should never act for an improper motive or ulterior purposes or contrary to the requirements of the statute, or the basis of the circumstances contemplated by law, or improperly exercised discretion to achieve some ulterior purpose. The determination of a plea of mala fide involves two questions, namely, (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. 22. In latin 'bad faith' is known as mala fide. Bad faith is a legal concept in which a malicious or bad motive on the part of a party in a lis undermines their case, which effects ability to maintain causes of action and obtain legal remedies. In a lis court not only looks at the legal rights of the parties but also should see the activities of the parties, motive and if the court in a lis feels that the motive of the parties either abuse the law or the power of the court then the court should generally deny the relief though the said party is otherwise entitled to the benefit. 23. The Apex Court in P.P. Sharma, IAS (supra) also stated that action taken must, therefore, be proved to have been mala fide. Mere assertion or a vague or bald statement cannot be treated sufficient. The allegation of mala fide has to be demonstrated by the admitted or proved facts and circumstances. In the instant case, though the Petitioner made such allegation of mala fide but did not demonstrate the facts specifying the bad intention of the authority concerned. Mere assertion or a vague or bald statement cannot be treated sufficient. The allegation of mala fide has to be demonstrated by the admitted or proved facts and circumstances. In the instant case, though the Petitioner made such allegation of mala fide but did not demonstrate the facts specifying the bad intention of the authority concerned. Therefore, it cannot be said that the impugned decision of the authority is the result of mala fide action and as such this Court is unable to accept the contention of Mr. Bhattacharjee on the question of mala fide. 24. Now let us examine how far judicial review is permissible in a contractual matter and whether the State Respondent, the tender inviting authority, has the power to cancel the tender process in which the Petitioner participated and whose tender was found to be lowest tender within the formal tenders. 25. In Tata Cellular v. Union of India (1994) 6 SCC 651 : AIR 1996 SC 11 the Apex Court while considering the question of judicial review in a contractual matter, laid down the following principles in paragraph 94 of the said judgment. 94. The principles deducible from the above are. - (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely review the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to the tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles. (emphasis supplied) 26. In paragraph 70 of the said judgment the Apex Court noted that, it cannot be denied that the principle of judicial review to the exercise of contractual powers on the government bids in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any tender is always available to the government. But the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing the tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose ' the exercise of that power will be struck down. (emphasis supplied) 27. In Raunaq International Ltd. v. I.V.R Construction Ltd. and Ors. (1999) 1 SCC 492 , the Apex Court stated, inter alia, that awarding of contract is essentially a commercial transaction and in arriving at a commercial decision considerations which are of the paramount importance are commercial considerations. The tendering authority has to consider the price at which the other side is willing to do the work and whether the goods or services offered are of requisite specifications, etc., which would be evident from paragraph 9 of the said judgment: 9. The tendering authority has to consider the price at which the other side is willing to do the work and whether the goods or services offered are of requisite specifications, etc., which would be evident from paragraph 9 of the said judgment: 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, there 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, as there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. (emphasis supplied) 28. In paragraph 10 of the said judgment of the Apex Court their lordships also discussed elements of public interest. (emphasis supplied) 28. In paragraph 10 of the said judgment of the Apex Court their lordships also discussed elements of public interest. According to their lordships, (1) public money which would be expanded for the purposes of the contract, (2) the acts 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 fulfilment 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 undertaken or goods supplied by the tenderer. Poor quality of 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 larger outlays of public money and delaying the availability of services, facilities or goods, e.g., a delay in commissioning a power project. 29. In the case of Air India Ltd. v. Cochin International Airport Ltd. and Ors. (2000) 2 SCC 617 , the Apex Court taking note of Tata Cellular (supra) and Raunaq International (supra) as well as other decisions of the Apex Court noted that, "The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. (emphasis supplied) 30. From the decision of the Apex Court as referred to supra, it can be held that while considering a matter either relating to the conditions in the notice inviting tender or acceptance or rejection of tender the court should always keep in mind the public interest and taking note of public interest at the outset whether court's intervention is called for or not and not only that when it comes to a conclusion that overwhelming pubic interests requires its interference then only the court should interfere. 31. In B.S.N. Joshi & Sons v. Nair Coal Services Ltd. and Ors. 31. In B.S.N. Joshi & Sons v. Nair Coal Services Ltd. and Ors. AIR 2007 SC 437 , the Apex Court again reiterated that, "the contract need not be given to the lowest tenderer but it is actually true that the employer is the best judge there for; the same ordinarily being within its domain, court's interference in such a matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record." (emphasis supplied) 32. In the said decision the Apex Court also took note of its earlier decision in Master Marine Services (P.) Ltd. v. Metcalfe and Hodgkinson (P.) Ltd. and Anr. (2005) 6 SCC 138 and Poddar Steel Corporation (supra) and noted that, We are also not shutting our eyes towards the new principles of judicial review which are being developed; but the law as it stands now having regard to the principles laid down in the aforementioned decisions may be summarized as under: (i) If there are essential conditions, the same must be adhered to; (ii) If there is no power of general relaxation, ordinarily the same shall not be exercised and the principle of strict compliance would be applied where it is possible for all the parties to comply with all such conditions fully; (iii) If, however, a deviation is made in relation to all the parties in regard to any of such conditions, ordinarily again a power of relaxation may be held to be existing; (iv) The parties who have taken the benefit of such relaxation should not ordinarily be allowed to take a different stand in relation to compliance of another part offender contract, particularly when he was also not in a position to comply with all the conditions of tender fully, unless the court otherwise find relaxation of a conditions which being essential in a nature could not be relaxed and, thus, the same was wholly illegal and without jurisdiction. (v) When a decision is taken by the appropriate authority upon due consideration of the tender document submitted by all the tenderers on their own merits and if it is ultimately found that successful bidders had in fact substantially complied with the purport and object of which essential conditions were laid down, the same may not ordinarily be interfered with. (vi) The contractors cannot form a cartel. If despite the same, their bids are considered and they are given an offer to match with the rates quoted by the lowest tenderer, public interest would be given priority. (vii) Where a decision has been taken purely on public interest, the court ordinarily should exercise judicial restraint. (emphasis supplied) 33. Recently, this Court, in the case of Ms. Lalrohlui v. The Chief Secretary to the Government of Mizoram and Ors. WP (C) No. 25 of 2011, wherein almost a similar question came up for decision, held that, A person may become the lowest tenderer but may not be having other experience or if the person who became the lowest tenderer/bidder but acceptance of the tender/bid would not protect the public interest like the SNP beneficiaries herein for whom the authority has invited the tender for supply of Edible Oil, then the tendering authority has the right to award the supply order even in favour of the highest tenderer/bidder but in the instant case, the authority issued the supply order in favour of Respondent No. 4 who admittedly offered lower rate than the Petitioner at the subsequent stage of opening the tender, i.e., at the time of negotiation in which both the Petitioner and the Respondent No. A were asked to provide their respective rates. 34. In Rajasthan Housing Board and Anr. v. G.S. Investments and Anr. (2007)1 SCC 477 the Apex Court stated that, even if some defect was found in the ultimate decision resulting in cancellation of the auction, the court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority. (emphasis supplied) 35. The court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority. (emphasis supplied) 35. In view of the decision of the Apex Court as referred to above, it can be easily said that judicial review is permissible in a commercial contract matter against the State and its instrumentality and the plea of unreasonableness, irrationality and discrimination is not enough, the plea of fraud, corruption or bad faith is sine qua non as reasonableness may differ from man-to-man, institution-to-institution but the fraud and corruption depends upon the act of the authority or institution like in a contractual matter. 36. In the instant case, it further appears from the record that the State Respondents in their affidavit in opposition specifically stated that Sri Ratan Kr. Acharjee, who offered the lower rate in his tender than the rate of the Petitioner for which he was requested to meet with the Chief Engineer, Respondent No. 2 and the reason for cancellation is also explained and the Chief Engineer has advised to cancel the tender for the reasons that though competition made but not in proper manner which indicates low keenness by the bidders and the tender evaluation at the Executive Engineer level was improper and to go for recall with wide publicity by giving 15 days time. Therefore, it cannot be said that the concerned authority, particularly, Respondent No. 2 acted with mala fide intentions or there was any bad faith towards the Petitioner or anybody else. Had there been any bad faith or mala fide intention for allotting the work to Sri Ratan Kr. Acharjee, allegedly an informal tenderer, whose rate was lesser than the Petitioner, then the Chief Engineer, could have negotiated with the said tenderer taking the benefit of law laid down in Poddar Steel Corporation (supra) but that was not done which shows the keenness of the authority. In the additional affidavit it is further stated that the impugned decision for cancellation of PNIT dated 23.12.2009 (Annexure 1 to the writ petition) has been taken to protect the finance of the State. 37. In view of the decision of the Apex Court, the State being the custodian of its finances has the right to take any decision for public interest like cancellation of tender before finalising the same. 37. In view of the decision of the Apex Court, the State being the custodian of its finances has the right to take any decision for public interest like cancellation of tender before finalising the same. This Court is of the further opinion that mere submission of a tender in response to notice inviting tender and becoming the lowest tenderer does not ipso facto create a right in favour of tenderer and bind the Respondents to issue work order in favour of the said tenderer. A person may become the lowest tenderer but may not be having other experiences or if the person is not suitable to protect the public interest, then the tendering authority has the right to allot the work order even in favour of the highest bidder, subject to said allotment is to protect public interest and not with any mala fide intention or bad faith and such an action would not come within the purview of fraud. 38. In the instant case, the authority did not allot the work even to the person whose tender, according to the Petitioner, was informal the authority only cancelled the tender process and invited tender by way of issuing subsequent tender notice as second call for more keenness and more participation in tender process. Therefore, it cannot be said that the Respondent-authorities committed any wrong by cancelling the earlier tender notice and issuing the subsequent tender notice. 39. In the result, the writ petition is dismissed being devoid of merit. Interim order, if any, passed earlier shall stand vacated. No order as to costs. Petition dismissed.