Judgment : Oral Judgment: (D.D. Sinha, J.) 1. Rule. Heard forthwith by consent of parties. Heard Mr Anil Mardikar, learned counsel for the petitioner; Mr V. G. Palshikar, learned counsel for respondents no. 1 to 4 and Mr D. V. Chauhan, learned counsel for respondent no. 5. 2. Learned counsel for the petitioner has submitted that respondent VIDC issued tender notice dated 29th March 2010 for design, supply, erection, testing and commissioning of 132 KV D/C LILO tower line for Nerla and Mokhbardi Lift Irrigation Scheme. Mr Mardikar has submitted that the petitioner as well as respondent no. 5 submitted tender pursuant to the said notice. It is submitted that the tender submitted by respondent no. 5 was not a valid tender in view of clause 1.13. 2 (a) which reads thus: “The Technical qualifying requirements of Bidders shall be as below: a) The bidder should have successfully completed the work of supply and installation of 132 KV & above voltage level transmission line having length of not less than 32 Km. In a single order during last three years.” Similarly, another condition stipulated in clause 7 required the tenderer to submit his tender document in the two separate sealed envelopes addressed to the Superintending Engineer, Vidarbha Hydro Electric & Lift Irrigation Circle, Vainganga Nagar, Ajani, Nagpur. Learned counsel for the petitioner has also brought to our notice clause in the tender document which contemplates that no alterations or modifications shall be made in the various schedules which form part of the specification. It is further contemplated that any tender which does not include percentage rates for all the items included in the “Schedules” shall be considered incomplete and is liable for rejection. 3. Learned counsel for the petitioner has contended that respondent no. 5 did not have experience as required vide clause 1.13.2 (a), nor had submitted two tender documents in envelope no. 1. Since the tender submitted by respondent no. 5 did not fulfil the essential eligibility criterial, the said tender ought to have been rejected by respondent-VIDC. However, respondents no. 1 to 4 have shown undue favour to respondent no. 5 by accepting his tender and also issued Work Order in his favour, the entire action is bad in law. It is submitted that the Department relaxed the eligibility criteria mentioned in clause 1.13.2(a) in order to suit the needs of respondent no. However, respondents no. 1 to 4 have shown undue favour to respondent no. 5 by accepting his tender and also issued Work Order in his favour, the entire action is bad in law. It is submitted that the Department relaxed the eligibility criteria mentioned in clause 1.13.2(a) in order to suit the needs of respondent no. 5 and though envelope no. 1 submitted by respondent no. 5 did not contain two tender documents, instead of rejecting the tender on this ground, the Department has permitted respondent no. 5 to submit one set of the documents, thereby shown undue favour to respondent no. 5. It is, therefore, contended that the action of respondent-VIDC in accepting tender and issuing Work Order to respondent no. 5 as well as executing the agreement with respondent no. 5 is arbitrary and cannot be sustained in law. Mr Mardikar further submitted that another condition relating to security deposit required the tenderer, whose tender is accepted, to deposit the same within ten days with the Superintending Engineer and the said period can only be extended for fifteen days if the Superintending Engineering thinks fit to do so. It is submitted that in the instant case though the tender of respondent no. 5 was accepted on 7.9.2010, respondent no. 5 did not give the security deposit either within ten days or within fifteen days and for the first time, deposited the amount in this regard on 13.10.2010 i.e. thirty-seven days from the date of acceptance of tender. Learned counsel for the petitioner, therefore, contended that here also the Department has shown undue favour to respondent no. 5. 4. Mr V. G. Palshikar, learned counsel for respondents no. 1 to 4 though not disputed the above factual aspects of the matter, brought to our notice clause 1.17 of the tender document which reads thus: “The right is reserved by the undersigned to accept or reject any or all Bids or annul the bidding process altogether and enhance or dilute the qualifying requirement for assessment of the capacity and capability of the bidders without any responsibility to the cost incurred by the bidder for submitting this proposal.” It is contended that by virtue of the above-referred tender condition, the Department was legally entitled to dilute the qualifying requirements of tender. It is submitted that the meeting was held on 10.6.2010 which was attended by the high-ranking officers of the Department. It is submitted that the meeting was held on 10.6.2010 which was attended by the high-ranking officers of the Department. In the said meeting the officers of the Department exercised their power vested in them in view of the above-referred condition of the tender and relaxed the technical criterial prescribed under clause 1.13.2 (a) and instead of length of not less than 32 kms in a single order during last three years, it was brought down to 20 kms. Mr Palshikar further submitted that so far as violation of clause of tender regarding envelope no. 1 is concerned, it was not an essential eligibility criteria. Respondent no. 5 had submitted only one document in envelope no. 1 and, therefore, formal mistake was permitted to be rectified by asking respondent no. 5 to submit duplicate copy of the document by the Department. It is further contended that so far as security deposit is concerned, the Department has obtained permission from the Chief Engineer, Mumbai and permitted respondent no. 5 to deposit the amount on 13.10.2010. mr Palshikar further contended that in the instant case, the petitioner had quoted financial bid of 23.1% below the estimated price whereas respondent no. 5 had quoted 29% below the estimated price and, therefore, quotation of respondent no. 5 was cheaper than the petitioner. It is submitted that the tender of respondent no. 5 being lowest, the Department has accepted the same in public interest and, therefore, action of the Department has served the public purpose and the same is sustainable in law. 5. Learned counsel for respondent no. 5 adopted the arguments of learned counsel for respondent-VIDC and further contended that the action of the Department is neither arbitrary nor malafide and serves the public purpose since the tender of respondent no. 5 was lowest one. It is also brought to the notice of this Court by Mr Chauhan that the Work Order is issued by the Department on 1.11.2010 and Agreement is also executed on 11.11.2010 and the work under tender has also been commenced. 6. We have considered the contentions canvassed by the respective parties and perused relevant clauses of tender document. It is also brought to the notice of this Court by Mr Chauhan that the Work Order is issued by the Department on 1.11.2010 and Agreement is also executed on 11.11.2010 and the work under tender has also been commenced. 6. We have considered the contentions canvassed by the respective parties and perused relevant clauses of tender document. In this case, it is not in dispute that one of the clauses of tender document gives power to the Department to relax the qualifying conditions and, therefore, this is not a case where the power exercised by the Department in relaxing the conditions was without authority or jurisdiction. In the instant case, looking to the nature of work required to be done by the tenderer, the relaxation which was given by the Department cannot be said to be against the public purpose or affects the public interest. It is, no doubt, true that the public contract given by the Public Authority must be transparent, free from malice and should serve the public purpose. In the present case, it is not in dispute that the tender submitted by respondent no. 5 was lowest and, therefore, it is obvious that the action of the Department in accepting the same served the public purpose. It is, no doubt, true that the Department did have power to relax the qualifying conditions of the tender. However, the action of the Department while granting tender must be free from arbitrariness and malice. In the instant case, relaxation of condition in bringing down length of transmission line from 32 kms to 20 kms does not appear to be either arbitrary or against the public interest since this relaxation is made applicable to all the tenderers including the petitioner. It is submitted that in all the Department had received three offers and such relaxation was made applicable to all the tenderers and, therefore, action of relaxation in the facts and circumstances of the present case, cannot be treated to be either arbitrary or unreasonable. 7. So far as submitting two documents in envelope no. 1 is concerned, it appears that respondent no. 5 had submitted only one document in it and, therefore, was permitted to submit photo copy of the tender documents. 7. So far as submitting two documents in envelope no. 1 is concerned, it appears that respondent no. 5 had submitted only one document in it and, therefore, was permitted to submit photo copy of the tender documents. So far as aspect of security deposit is concerned, learned counsel for the Department has brought to our notice that prior approval/permission from the Chief Engineer, Mumbai was obtained by the Department and, therefore, action of the Department in permitting respondent no. 5 to make security deposit on 13.10.2010 also does not appear to be unreasonable. 8. In the instant case, in order to attract more competition, the power of relaxation of qualifying conditions has been exercised by the Authority. If the condition stipulated in clause 1.13.2 (a) would not have been relaxed by bringing down the length of successfully completed work of supply and installation of 132 KV and above voltage level transmission line from 32 kms to 20 kms, the only tender would have been of the petitioner, which would have resulted in eliminating the competition. By virtue of relaxing the said condition, the sphere of competition has been increased and the respondents received two more tenders. The tender submitted by respondent no. 5 was 29% below the estimated price which has not only benefited the public exchequere, but also served the public purpose. Respondent no. 5, though permitted to rectify certain deficiencies by the Authority, however, those deficiencies being of a formal nature, the act of respondents no. 1 to 4 in permitting respondent no. 5 to rectify them does not result in arbitrariness or unreasonableness, particularly, keeping in view that the tender submitted by respondent no. 5 was the lowest one. It is, no doubt, true that the petitioner is now ready and willing to perform the job at the price which is quoted by respondent no. 5. However, that would not render the decision of the Department to accept the tender of respondent no. 5 which was lowest, either unreasonable or arbitrary. 9. Mr Mardikar, learned counsel for the petitioner has relied on the decisions of the Supreme Court in Jagdish Mandal v. State of Orissa reported in (2007) 14 SCC 517 and W. B. State Electricity Board v. Patel Engineering and ors reported in (2001) 2 SCC 451 . 5 which was lowest, either unreasonable or arbitrary. 9. Mr Mardikar, learned counsel for the petitioner has relied on the decisions of the Supreme Court in Jagdish Mandal v. State of Orissa reported in (2007) 14 SCC 517 and W. B. State Electricity Board v. Patel Engineering and ors reported in (2001) 2 SCC 451 . So far as the decision of the Supreme Court in Jagdish Mandal’s case is concerned, the Apex Court in paragraph 22 has observed thus: “Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. 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.” 10. The observations made by the Apex Court show that if the decision relating to award of contract is bonafide and in public interest, courts will not, in exercise of powers of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out. In the instant case, we have already observed that the action of the Authority in accepting the tender of respondent no. 5 is neither irrational, unreasonable or violative of essential eligibility conditions of tender. On the other hand, power of relaxation was exercised in view of the condition of tender and to serve the public cause and, therefore, the same is sustainable in law. 11. We also cannot ignore the fact that the Work Order has already been issued; Agreement between respondent no. 5 and the Department has been executed and the work has also commenced. 12. Considering the above facts and for the reasons given above, petition lacks merit. No case is made out for showing indulgence. Writ Petition is dismissed. Rule is accordingly discharged.