Judgment V.M. Sahai, J.—Rule. Learned Counsel Ms. P.J. Davawala waives service of notice of Rule on behalf of the respondents. We have heard Mr. M.T.M. Hakim, learned Counsel appearing for the petitioners and Ms. P.J. Davawala, learned Counsel appearing for the respondents. Since the dispute is common, therefore, we have taken up all these petitions for disposal by a common judgment. Special Civil Application No. 2539 of 2011 would be the leading writ petition. 2. The dispute between the parties is with regard to issuance of satisfactory completion certificate after the contractor completes his contract and his work is over, he applies to the respondents for issuance of satisfactory completion certificate which is issued by Bharat Sanchar Nigam Limited (for short the BSNL). The necessity of issuance of such certificate is that for future contracts, last three years’ satisfactory completion certificate is required for applying in pursuance of any future tender floated by the respondents. If a satisfactory completion certificate had not been issued, then a contractor cannot apply in the next tender. The petitioners in all these petitions were awarded contract by the respondents. They completed their work and applied for issuance of satisfactory completion certificate after the work was over. The respondents refused to issue satisfactory completion certificate to the petitioners on the ground that there was a recovery against the petitioners, therefore, their work was not satisfactory. The details of recovery for the period of last three years from 1.6.2008 to 30.6.2011 has been filed by the petitioners which shows that an amount of Rs. 1,36,087/- was recovered from the petitioners and after the final bill was prepared, any further recovery, if required, would be made from the petitioners. 3. In the affidavit filed by Shri K.B. Patel, Executive Engineer (Electrical), BSNL at page 137 of the paper book at item No. 2, we find that satisfactory completion certificate had been issued by the respondents to the petitioners though an amount of Rs. 1,38,233/- has been recovered from the petitioners. So far as item No. 3 is concerned, recovery of Rs. 78,515/- was made from the petitioner. 3.1. At page No. 138, item No. 1 is with regard to M/s. Z.K. Enterprises, Himmatnagar from whom an amount of Rs. 17,747/- had been recovered. Similarly, at page No. 139, from M/s. Girnar Electricals, Ahmedabad, penalty of Rs. So far as item No. 3 is concerned, recovery of Rs. 78,515/- was made from the petitioner. 3.1. At page No. 138, item No. 1 is with regard to M/s. Z.K. Enterprises, Himmatnagar from whom an amount of Rs. 17,747/- had been recovered. Similarly, at page No. 139, from M/s. Girnar Electricals, Ahmedabad, penalty of Rs. 2,30,639/- was recovered due to faulty EMS and fault was not attended by the firm. Recovery of Rs. 1,36,139/- due to deletion of EMS by the department and the penalty of Rs. 62,501/- was recovered. At page No. 141, from M/s. Laxminarayan Engineering, Vadodara, an amount of Rs. 5,47,308/- was recovered due to deletion of EMS by the department and the penalty of Rs. 7,485/- was recovered as penalty due to poor maintenance. Similarly, with regard to other contract, an amount of Rs. 1,26,198/- and Rs. 1,36,889/- was also recovered from M/s. Laxminarayan Engineering, Vadodara while the work was in progress. 3.2 These documents have been filed alongwith with the affidavit of Shri K.B. Patel demonstrate that though huge amounts have been recovered from M/s. Girnar Electricals, Ahmedabad and M/s. Laxminarayan Engineering, Vadodara, but they have been issued satisfactory completion certificate, whereas the petitioners have not been issued satisfactory completion certificate. 3.3. Though the petitioners have brought on record details of satisfactory completion certificate of other contractors also, against whom also recoveries have been issued and they have been issued satisfactory completion certificate, but for the sake of brevity, we have referred only the details of the aforesaid two firms who have been issued satisfactory completion certificate. Though there are other affidavits of Executive Engineers which establish the case of the petitioners. 4. The learned Counsel for the petitioners Shri M.T.M. Hakim has urged that since the petitioners did not yield to the illegal demands of the Respondents No. 2 to 5, he has been victimised by these officers illegally, unconditionally, malafidely and by misusing and abusing their authority and power. These officers are trying to shut out the petitioners from participating in the tender of contracts invited by BSNL and are trying to deny the opportunity of work available to the petitioners in BSNL as they have failed in their earlier attempts due to intervention of Courts. These officers are trying to shut out the petitioners from participating in the tender of contracts invited by BSNL and are trying to deny the opportunity of work available to the petitioners in BSNL as they have failed in their earlier attempts due to intervention of Courts. The respondents are discriminating in issuance of satisfactory completion certificate just to deprive the petitioner his right of livelihood and right to carry on any business or trade. The action of the respondents are malafide and arbitrary. 5. Learned Counsel for the respondents Ms. P.J. Davawala has urged that as the contract of the petitioners was for maintenance of the entire building and all the electrical/electronic appliances were required to be maintained by the petitioners in the building. The work of the petitioners was not satisfactory as air conditioning did not function properly. The allegation of discrimination, malafide and abuse of power by the officers of the respondent is not correct. The writ petitions are liable to be dismissed. 6. We now take up the question whether the action of the respondents particularly Respondents No. 2 to 5 is malafide, arbitrary, discriminatory and in abuse of their power and authority and they have not issued satisfactory completion certificate with a revengeful approach as their earlier similar action had been set aside by the Courts. In the earlier litigation between the parties, the facts were that BSNL invited tenders on 11.6.2010. The petitioner applied for tender on 16.6.2010. He was informed on 25.6.2010 that his application for tender was rejected as per NIT condition. The petitioner filed writ petition being Special Civil Application No. 7408 of 2010 and Special Civil Application No. 7651 of 2010. The Division Bench by its judgment dated 7.7.2010 allowed both the writ petitions and held that the named officers of the Corporation were harassing the petitions and blocking their payments with a plan to terminate their contracts and blacklisting the firm. The relevant Paragraphs 5 and 6 of the judgment dated 7.7.2010 are extracted below: “5. The controversy between the parties is apparently centered around the certificates, which were pressed into service by the petitioner for fulfilling the eligibility criteria. The relevant Paragraphs 5 and 6 of the judgment dated 7.7.2010 are extracted below: “5. The controversy between the parties is apparently centered around the certificates, which were pressed into service by the petitioner for fulfilling the eligibility criteria. The certificates attached with the application by the petitioner included four certificates, out of which two certificates were issued by the respondent themselves clearly mentioning that the work had been completed satisfactorily or work in progress is being done satisfactorily. As far as two other certificates were concerned, it was established on the basis of documentary evidence of the respondents themselves that the work related to those certificates was already completed but the same contract was extended for a further period, due to which certificate could not be issued in respect of “completed work”. It was argued that if the work were not satisfactorily completed by the stipulated date of completion, the respondents would not have extended the period of contract; and discarding those certificates as certificates for work which was not “carried out” was unrealistic and biased. It also cannot be assumed or inferred, particularly in context of the allegations made by the petitioner, that if the completed work or work in progress is not certified by the respondent to have been satisfactorily completed, the performance has to be unsatisfactory. Admittedly, it is after filing of the petition that the summaries of recoveries and penalties are made up and produced before this Court and there is no evidence either of such penalties and recoveries being enforced or of being accepted by the petitioner without any objection. On the contrary, the petitioner has made specific allegations against particular named officers in his correspondence to allege that the officers were harassing them and blocking their payments, with a plan to terminate their contracts and blacklisting the firm. In the summary of recoveries and penalties, relied upon by the respondent, most items are ‘proposed’ recoveries and penalties. 6. In the above facts and circumstances, we find that rejection of the petitioner’s application for tender forms is not bona fide and the certificates about works of maintenance carried out by the petitioner were required to be accepted as fulfilling the eligibility criteria. Accordingly, the petitions are allowed and disposed with following directions, in the peculiar facts and circumstances of each case. Accordingly, the petitions are allowed and disposed with following directions, in the peculiar facts and circumstances of each case. (I) In Special Civil Application No. 7408 of 2010, since the notice inviting tenders No. 13/BSNL/2010-11/ED-I/AHD and No. 12/BSNL/2010-11/ED-I/AHD both dated 11.6.2010 were in respect of two separate maintenance works for which tenders are, by now, already invited and opened on 30th June 2010, fresh notice inviting tenders shall be issued by the respondents and the applications of the petitioner for those tender documents shall not be rejected on the ground of the petitioner not fulfilling the eligibility criteria. (II) In Special Civil Application No. 7651 of 2010, (A) Notices inviting tenders were in respect of seven works [enumerated in paragraph 7(ff) of the petition] and opening of the tenders in respect of three works is stated to have already been postponed to 24th July 2010. The notices inviting tenders in respect of these three works are: NIT-24, 25 & 26/EEEAII/BSNL/2010-11. The petitioner shall be permitted to apply for those tender documents and if he submits tenders in respect of those three works they shall be accepted and considered along with other tenders already received by the respondent, subject to all other conditions and stipulations of the tender; (B) As for the notice inviting tenders for remaining four works, it is stated at the bar that the date of opening all those tenders could be postponed under order of this Court so as to facilitate joining of the tendering process by the petitioner. Therefore, it is directed that the petitioner shall be permitted to apply for those four tender documents, supplied the tender documents immediately, and if he submits tenders within stipulated time, not later than 20th July 2010, his tenders shall be considered along with other tenders, which may have already been received by the respondent, on such date thereafter as may be fixed by the respondent. It is clarified, as aforesaid, that applications of the petitioner for tender documents shall not be rejected on the ground of the petitioner not fulfilling the eligibility criteria and all other conditions and stipulations of the Notice and tender shall apply equally to the petitioner.” 6.1. The judgment of Division Bench dated 7.7.2010 was challenged by the respondents by Special Leave to Appeal No. 26462 of 2010 which was dismissed summarily on 27.9.2010. The judgment of Division Bench dated 7.7.2010 was challenged by the respondents by Special Leave to Appeal No. 26462 of 2010 which was dismissed summarily on 27.9.2010. The judgment of the Apex Court is extracted below: “We do not find any reason to interfere with the impugned judgment in exercise of our discretion under Article 136 of the Constitution. The Special Leave Petitions are, accordingly, dismissed. However, the question of law, if any, is kept open.” 6.2. With regard to another tender, the respondents ignoring the judgment dated 7.7.2010 again rejected the tender on the same grounds-non-satisfying the condition No. 23 on which earlier tender was rejected on 25.6.2010. A Division Bench of this Court by judgment dated 14.12.2010 in Special Civil Application No. 14191 of 2010 quashed the action of respondents in rejecting the technical bid of the petitioner on the ground of non-satisfying the eligibility criteria. The relevant part of the judgment dated 14.12.2010 is extracted below: “Hence, we find that same direction as was given in the above matters deserves to be issued. However, in the present case, as the financial bid of other tenderer is already opened but on the ground of eligibility criteria, the financial bid of the petitioner has been returned, fresh notice will be required to be issued of tender and at that stage, the petitioner shall be at liberty to submit his offer and at that stage the offer of the petitioner shall not be rejected on the ground of non-satisfying the condition No. 23 of the present te4nder, copy whereof is produced at page-24 of the compilation, unless the respondent BSNL in its wisdom alter the condition in the other tender in future and decides to flow a fresh tender on different eligibility criteria. The impugned action in any case for rejection of the technical bid of the petitioner on the ground of non-satisfying the eligibility criteria shall stand quashed and set aside. The petition is allowed to the aforesaid extent. Rule made. No costs. Direct service for Respondent Nos. 2, 3 and 4.” 7. From the facts narrated above, it is clear that earlier also, the respondents on the same grounds, have refused to issue satisfactory completion certificate. The petition is allowed to the aforesaid extent. Rule made. No costs. Direct service for Respondent Nos. 2, 3 and 4.” 7. From the facts narrated above, it is clear that earlier also, the respondents on the same grounds, have refused to issue satisfactory completion certificate. The Division Bench of this Court by its judgment dated 7.7.2010 interfered in the matter and held that the respondents have not issued the aforesaid certificate illegally and directed issuance of the same. The Apex Court did not interfere with the judgment. In the subsequent tender also, on the same ground, the petitioners’ tender was not accepted by the respondent and so the order was set aside by another Division Bench judgment dated 14.12.2010. Even thereafter, the respondents kept on rejecting the applications of the petitioners for issuance of satisfactory completion certificate contemptuously ignoring the judgments of this Court, probably with a view that if they pass an illegal order, again and again and do not issue satisfactory completion certificate, the High Court under its power under Article 226 of the Constitution of India, could only set aside the orders, but it would result in damaging the right to the petitioners to participate in the tender as for participating in the tender, the condition precedent is that there should be satisfactory completion certificate issued by the respondents for the last three years. The approach of the respondents is highly contemptuous and shows that they have got no respect for the orders of the Court and they are continuously rejecting the applications of the petitioners and not issuing them satisfactory completion certificates in abuse of their power malafidely. 8. According to the learned Counsel for the respondents now coming to the facts of the case in hand, one of the reasons for not issuing satisfactory completion certificate was that diesel was not provided by the petitioners due to which air conditioning could not function properly in absence of electricity and generator also did not function. Various letters were written by the respondents. The petitioners gave reply by writing a letter dated 19.6.2010 which has been filed at page No. 264 of Special Civil Application No. 1302 of 2011 wherein the petitioners have prayed to the Sub Divisional Engineer(E) BSNL Electrical Sub Division-II, Mahesana that payment of approximately Rs. Various letters were written by the respondents. The petitioners gave reply by writing a letter dated 19.6.2010 which has been filed at page No. 264 of Special Civil Application No. 1302 of 2011 wherein the petitioners have prayed to the Sub Divisional Engineer(E) BSNL Electrical Sub Division-II, Mahesana that payment of approximately Rs. 5,05,000/- till date is pending as well as other huge payments were pending, due to which financial crises was created and the petitioner was not able to put diesel and therefore, payments be released so that diesel may be purchased. But no payment was released by the respondents. On the grounds, the petitioners’ satisfactory completion certificate at the end of the contract had not been issued and the recovery of Rs. 1,36,087/- has been made. The diesel was not supplied in the generator for some period by the petitioner, it did not result in any damage to the machines or electrical/electronic appliances in the building 8.1. We are shocked to find that M/s. Girnar Electricals, Ahmedabad who did not attend faulty EMS for which recovery of Rs. 2,30,639/- was made from it had been issued satisfactory completion certificate. Serious charge was with regard to faulty EMS in attending to it by M/s. Girnar Electricals, Ahmedabad, but it had been issued satisfactory completion certificate by the respondents. Similarly while work was in progress, M/s. Laxminarayan Engineering, Vadodara also did not attend faulty EMS and the department had to delete EMS for which recovery of Rs. 5,47,308/- was directed to be made from him apart from other amount were recovered with regard to other contracts. But he had also been issued satisfactory completion certificate. This makes a clear case that on one hand, respondents are issuing satisfactory completion certificate to M/s. Girnar Electricals, Ahmedabad and M/s. Laxminarayan Engineering, Vadodara due to which the respondents had to delete EMS for which huge recoveries were made from the aforesaid contractors and even though they did not attend to faulty EMS, they were issued satisfactory completion certificate. On the other hand, the petitioners have not been issued satisfactory completion certificate though huge amount was outstanding for payment to be made by the respondents to the petitioners with regard to diesel which was blocked by the officers of BSNL. Moreover, for these defaults, the respondents imposed a penalty of Rs. 1,36,087/- against the petitioners which has been recovered from his dues. 9. Moreover, for these defaults, the respondents imposed a penalty of Rs. 1,36,087/- against the petitioners which has been recovered from his dues. 9. The learned Counsel appearing for the respondents has urged that if satisfactory completion certificate has not been issued to the petitioners, and it had been issued to others who had worst case than the petitioners even then the respondents were well within their rights in not issuing satisfactory completion certificate to the petitioners under their discretionary powers. She has heavily placed reliance on the decision in Fuljit Kaur vs. State of Punjab and Others, (2010) 11 SCC 455 Paragraphs 11 and 12 which are extracted below: “11. The respondent cannot claim parity with D.S. Laungia in view of the settled legal proposition that Article 14 of the Constitution of India does not envisage negative equality. Article 14 is not meant to perpetuate illegality or fraud. Article 14 of the Constitution has a positive concept. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim the benefit on the basis of the wrong decision. Even otherwise Article 14 cannot be stretched too for otherwise it would make function of the administration impossible. (Vide Coromandel Fertilizers Ltd. vs. Union of India, Panchi Devi vs.State of Rajasthan and Shanti Sports Club vs. Union of India.) 12. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. (Vide Coromandel Fertilizers Ltd. vs. Union of India, Panchi Devi vs.State of Rajasthan and Shanti Sports Club vs. Union of India.) 12. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. vs. Jagjit Singh, Sneh Prabha vs. State of U.P. Jalandhar Improvement Trust vs. Sam puran Singh, State of Bihar vs. Kameshwar Prasad Singh, Union of India vs. Rakesh Kumar, Yogesh Kumar vs. Government of NCT, Delhi, Union of India vs. International Trading Co., Anand Buttons Ltd. vs. State of Haryana, K.K. Bhalla vs. State of M.P. and Krishan Bhatt vs. State of J and K.)” In this decision, the Apex Court has held that negative equality cannot be enforced under Article 14 of the Constitution of India. The concept of negative equality means that by claiming equality, a fraud or illegality could not be perpetuated. 9.1. From the records of this case, we find that from the facts of the instant case that illegality has been committed, that too, by their arbitrary and discriminatory administrative action in not issuing satisfactory completion certificate to the petitioners though an amount of Rs. 1,36,087/- has been recovered against him, whereas huge recoveries have been made from M/s. Girnar Electricals, Ahmedabad and M/s. Laxminarayan Engineering, Vadodara. It is clear that action of the respondents in not issuing satisfactory completion certificate to the petitioners is discriminatory. It is not the case of the respondents that they had issued satisfactory completion certificate to M/s. Girnar Electricals, Ahmedabad and M/s. Laxminarayan Engineering, Vadodara or to other contractors by mistake, against whom recoveries of amounts for non-performance in pursuance or the contract or penalty was imposed. The petitioners have made a categorical assertion that Respondents Nos. 2 to 5 were annoyed with the petitioners and wanted to shut them out from taking any contract in BSNL and with this objective, they were not issuing satisfactory completion certificate to the petitioners in a discriminatory and arbitrary manner. 9.2. The aforesaid facts give rise to an important question whether non-issuance of satisfactory completion certificate deliberately and intentionally to the petitioners by the respondents was malice in law and if so its effect. 9.2. The aforesaid facts give rise to an important question whether non-issuance of satisfactory completion certificate deliberately and intentionally to the petitioners by the respondents was malice in law and if so its effect. In Salmond and Heuston on the Law of Torts 20th Edition 1996 the term malice, as used in law has been defined to possess two different meanings. It signifies either (1) the intentional doing of a wrongful act without just cause or excuse, or (2) action determined by an improper motive. It is clear from the aforesaid definition that any motive is malicious which is not recognised by law as a sufficient and proper one for the act in question. Malice in legal sense means a wrongful act, done intentionally without just cause or excuse. Any action by a public authority or exercise of discretion must be backed by substantial rationality flowing from the action. Public interest or general good for betterment have no doubt priority over private or individual interest, but it must not be a practice to justify arbitrary or illegal exercise of power. The executive or administrative authority must not be oblivious that in a democratic set up, the people or community being sovereign, the exercise of discretion must be guided by inherent philosophy with exercise of discretion is accountable for its action. The discretion of the authority has to be decided on the anvil of rule of law and fairness or justice particularly in computing interest of members of various tenderers were involved. 9.3 The Apex Court in Kalabharati Advertising vs. Hemant Vimalnath Narichania and Others, (2010) 9 SCC 437, in Paragraphs 25 and 26 has held as under: “Legal malice 25. The State is under obligation to act fairly without ill will or malice-in fact or in law. “Legal malice” or “malice in law” means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. Where malice is attributed to the State, it can never be case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for “purposes foreign to those for which it is in law intended”. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of Others, which intent is manifested by its injurious acts. (Vide ADM, Jabalpur vs. Shivakant Shukla, S.R.Venkataraman vs. Union of India, State of A.P. vs. Goverdhanlal Pitti, BPL Ltd. vs. S.P. Gururaja and W.B.SEB vs. Dilip Kumar Ray.) 26. Passing an order for an unauthorised purpose constitutes malice in law. (Vide Punjab SEB Ltd. vs. Zora Singh and Unio of India vs. V. Ramakrishnan.)” 9.4 The Apex Court in Madhya Pradesh State Co-operative Dairy Federation Limited and another vs. Rajnesh Kumar Jamindar and Others, (2009) 15 SCC 221 in Paragraph 44 has held as under: “44. The power of judicial review of a superior court although a restricted one, has many facets Its jurisdiction is not only limited in the cases where the administrative orders are perverse or arbitrary but also in the cases where a statutory authority has failed to perform its statutory duty in accordance with law. An order which is passed for unauthorised purpose would attract the principles of malice in law. (See Govt. Branch Press vs. D.B. Belliappa, S.R.Venkataraman vs. Union of India and P. Mohanan Pillai vs. State of Kerala.)” 9.5. The Apex Court in Swaran Singh Chand vs. Punjab State Electricity Board and Others, (2009) 13 SCC 758 in Paragraph 18 has held as under: “... Thus, when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable.” 9.6. The Apex Court in Mukesh Kumar Agrawal vs. State of Uttar Pradesh and Others, (2009) 13 SCC 693 in paragraph 18 has held as under: “18. Such an order being illegal would be wholly unsustainable.” 9.6. The Apex Court in Mukesh Kumar Agrawal vs. State of Uttar Pradesh and Others, (2009) 13 SCC 693 in paragraph 18 has held as under: “18. We also intend to emphasise that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved. (See Swaran Singh Chand vs. Punjab SEB.)” 9.7. The Apex Court in Punjab State Electricity Board Ltd. vs. Zora Singh and Others, (2005) 6 SCC 776 , in Paragraphs 40, 41 and 42 has held as under: “40. Furthermore, there cannot be any doubt whatsoever that even if an order is found to be not vitiated by reason of malice on fact but still can be held to be invalid if the same has been passed for unauthorised purposes, as it would amount to malice in law. 41. In S.R.Venkataraman vs. Union of India this Court observed: (SCC p494, Para 5) “It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount Haldane described it as follows in Shearer vs. Shields. “A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently.” Thus malice in its legal sense means malice such as may be assumed fro the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.” 42. In State of A.P. vs. Goverdhanlal Pitti this Court observed: (SCC p 744, Paras 12-13) “12. The legal meaning of malice is ‘ill-will or spite towards a party and any indirect or improper motive in taking an action’. In State of A.P. vs. Goverdhanlal Pitti this Court observed: (SCC p 744, Paras 12-13) “12. The legal meaning of malice is ‘ill-will or spite towards a party and any indirect or improper motive in taking an action’. This is sometimes described as ‘malice in fact’. ‘Legal malice’ or ‘malice in law’ means ‘something done without lawful excuse’. In other words, ‘it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (See Woerds and Phrases Legally Defined, 3rd Edn. London Butterworths, 1989.) 13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law (8th Edition, at p.414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described malafide if it seeks to ‘acquire land’ for a purpose not authorised by the Act.” (See also Chairman & MD, BPL Ltd. vs. S.P. Gururaja and P. Anjaneyulu vs. Chief Manager, A.P. Circloe, Bharat Sanchar Nigam Ltd.)” “18. We also intend to emphasis that the distinction between a malice of fact and malice in law must be borne out from records; whereas in a case involving malice in law which if established may lead to an inference that the statutory authorities had acted without jurisdiction while exercising its jurisdiction, malice of fact must be pleaded and proved.(See Swaran Singh Chand vs. Punjab SEB.)” 9.8. The Apex Court in State of A.P. and others vs. Goverdhanlal Pittri (2003) 4 SCC 739 , in Paragraphs 12,13 and 14 has held as under: “12. The legal meaning of malice is ‘ill-will or spite towards a party and any indirect or improper motive in taking an action’. This is sometimes described as ‘malice in fact’. ‘Legal malice’ or ‘malice in law’ means ‘something done without lawful excuse’. In other words, ‘it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. This is sometimes described as ‘malice in fact’. ‘Legal malice’ or ‘malice in law’ means ‘something done without lawful excuse’. In other words, ‘it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others’. (See Woerds and Phrases Legally Defined, 3rd Edn. London Butterworths, 1989.) 13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in his authoritative work on Administrative Law (8th Edition, at p. 414) based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described malafide if it seeks to ‘acquire land’ for a purpose not authorised by the Act. The State, if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other. 14. Legal malice, therefore, on the part of the State as attributed to it should be understood to mean that the action of the State is not taken bona fide for the purpose of Land Acquisition Act and it has been taken only to frustrate the favourable decisions obtained by the owner of the property against the State in the eviction and writ proceedings.” 9.9. From the aforesaid decisions of the Apex Court, it is clear that malice in law must be borne out from the records. In a case involving malice in law may lead to an inference that the authorities have acted without jurisdiction which exercising their jurisdiction. The order of the respondents would attract the principle of malice in law as it was not based on consideration of Division Bench decisions mentioned in this judgment germane for passing the judgments by the Division Bench. The orders passed by the respondents was contemptuous and based on an irrelevant ground that since recovery was made from the petitioners, satisfactory completion certificates could not be issued. When a power is exercised for an unauthorised purpose, the same would amount to malice in law. The orders passed by the respondents was contemptuous and based on an irrelevant ground that since recovery was made from the petitioners, satisfactory completion certificates could not be issued. When a power is exercised for an unauthorised purpose, the same would amount to malice in law. Thus when an order suffers from malice in law, neither any averment as such is required to be made nor strict proof thereof is insisted upon. Such an order being illegal would be wholly unsustainable. 10. The expression malafide may be used to mean for an unauthorised purpose. The action and refusal of the respondents in not issuing satisfactory completion certificate in spite of the judgment of this Court with regard to earlier other tenders clearly establishes that they are committing wrongful act intentionally without just cause or excuses which would be malice in law in the legal sense. We are conscious of the fact that in dealing with allegations of malice, the Court has to decide whether the person in authority or power had malus animus against the petitioner. From the facts of the case, we are of the considered opinion that action of the respondents in refusing to issue satisfactory completion certificates to the petitioners were guilty of discrimination and their action was arbitrary and the cases in hand would fall within the category of rare cases where public authorities are found guilty of intentional malice in law and they have no respect to the judgments of this Court which have been affirmed by the Apex Court. From the facts of this case we can safely infer that the orders passed by the respondents suffered from malice in law and cannot be sustained. We would have taken strict action against respondents, and fixed their personal accountability and awarded compensation to the petitioners, but we refrain from doing so in order to give one more opportunity to the respondents and their officers to mend their ways and not to treat the petitioners or any other contractor by making discrimination which is a writ large on the face of it. The action of the respondents in this case was arbitrary and violative of Article 14 of the Constitution of India. It is not a case of negative equality and the law laid down by the Apex Court in Fuljit Kaur (Supra) is not applicable to the facts of the instant case. 11. The action of the respondents in this case was arbitrary and violative of Article 14 of the Constitution of India. It is not a case of negative equality and the law laid down by the Apex Court in Fuljit Kaur (Supra) is not applicable to the facts of the instant case. 11. Therefore, it is a clear case falling within the category of arbitrary action and action of the respondent is violative of fundamental rights of the petitioners guaranteed under Article 14 of the Constitution of India. The discrimination made by the respondents in not issuing satisfactory completion certificate to the petitioners was wholly unwarranted, illegal and arbitrary and tainted by malice in law, therefore, a direction is required to be issued to the respondents to issue satisfactory completion certificate to the petitioners. 12. Learned Counsel for the respondents has lastly urged that since there is arbitration clause, therefore, the petitioners should go for arbitration. We are not inclined to accept this submission in view of the fact that we find that action of the respondents is unfair and arbitrary. The Apex Court in Whirlpool Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1 has laid down that where an order is wholly without jurisdiction, the bar of alternative remedy in entertaining the writ petition would not apply. In the case in hand we have held that the action of the respondents in not issuing satisfactory completion certificates to the petitioners was based on irrelevant considerations and was tainted with malice in law, hence the action of the respondents was without jurisdiction, therefore, it was not necessary for the petitioners to invoke arbitration clause. 13. For the aforesaid reasons, these petitions succeed and are allowed. The respondents are directed to issue satisfactory completion certificate to the petitioners within a period of four weeks from today. If any tender has been issued by the respondents while the petitions are pending and contract has been awarded to other contractors, then they shall not be affected by this judgment. However, it will be open to the petitioners to apply in pursuance of fresh tenders. Learned Counsel Ms. P.J. Davawala appearing for the respondents has made a statement before this Court on instructions given By Mr. However, it will be open to the petitioners to apply in pursuance of fresh tenders. Learned Counsel Ms. P.J. Davawala appearing for the respondents has made a statement before this Court on instructions given By Mr. K.B. Patel, Executive Engineer, Electricals, BSNL, Division-I, Ahmedabad that for a period of four weeks from today, no fresh tender notice will be issued by BSNL inviting any fresh tenders for maintenance of electrical/electronic appliances installed in the telephone exchange buildings in the State of Gujarat. Rule made absolute in each petition. P P P P P