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2012 DIGILAW 1105 (GAU)

Caroline Pala v. State of Meghalaya

2012-09-14

BROJENDRA PRASAD KATAKEY

body2012
JUDGMENT B.P. Katakey, J. 1. The petitioner, who was earlier awarded with the contract for construction of Meghalaya Legislative Assembly building at Shillong, by the present petition, has challenged the Expression of Interest (EOI) dated 10th December, 2010 issued by the Meghalaya Government Construction Corporation Limited (hereinafter referred to as the Corporation) inviting prequalification bid for empanelment of contractors/firms for construction of Meghalaya Legislative Assembly building at Taraghar Complex, Shillong with a further prayer directing the respondents not to take further action pursuant to the said EOI. The undisputed facts relevant for the purpose of disposal of the present writ petition may be noticed as under:- (i) After the old Meghalaya Legislative Assembly building was gutted by fire on 9th January, 2001, a decision was taken to construct the new Assembly building at its original location at Police Bazaar and accordingly the Secretary, Meghalaya Legislative Assembly issued Notice Inviting Quotation on 2nd July, 2001, pursuant to which various contractors, including the petitioner, submitted their bids. The petitioner having been successful in the said process, preliminary work order was issued on 20th December, 2002 by the Secretary of the Legislative Assembly for reconstruction of the Assembly building at the cost of Rs. 26.615 Crores with 3 (three) years time for completion. The final work order dated 6th January, 2003 was then issued in favour of the petitioner requesting her to start the work in consultation with the Chief Engineer, PWD (Buildings), Government of Meghalaya. An agreement was also executed on that day, i.e. on 6th January, 2003, amongst the petitioner and M/s Dona Builders Private Limited on one side and the Secretary, Meghalaya Legislative Assembly on the other side. A decision thereafter, was taken to shift the site and to construct the new Assembly building at Mawdiangdiang, Shillong and accordingly the new site was handed over to the petitioner. The Additional Secretary of the Legislative Assembly then issued a communication dated 12th November, 2004 formally informing the petitioner and M/s Dona Builders Private Limited relating to the change of site and also the change of the approved estimated cost to Rs. 20,54,77,500/-. An agreement was also entered into amongst the petitioner, M/s Dona Builders Private Limited and the Additional Secretary, Legislative Assembly on the same day, i.e., on 12th November, 2004, for construction of the new Assembly building at the aforesaid new site and estimated cost. 20,54,77,500/-. An agreement was also entered into amongst the petitioner, M/s Dona Builders Private Limited and the Additional Secretary, Legislative Assembly on the same day, i.e., on 12th November, 2004, for construction of the new Assembly building at the aforesaid new site and estimated cost. The decision taken for construction of the new Assembly building at Mawdiangdiang was subsequently reviewed by the High Power Committee constituted by the Speaker of the Assembly and a decision was taken to construct the same at another place. The petitioner, therefore, was asked by the Secretary of the Legislative Assembly vide communication dated 17th January, 2005 to stop construction of the said building at Mawdiangdiang. (ii) One Shri Abani Das for the petitioner and M/s Dona Builders Private Limited, on receipt of the aforesaid communication dated 17th January, 2005, issued a communication dated 27th January, 2005 to the Secretary of the Legislative Assembly intimating that they have stopped all activities and preparation on the site and requesting to let them know the details of the new site for construction of the new Assembly building. By the said communication, the Secretary of the Legislative Assembly was also informed that they had already started the site development work at Mawdiangdiang. The High Power Committee constituted by the Speaker for construction of new Assembly building in its proceeding dated 5th December, 2006 decided to have the new Assembly building constructed at Upper Shillong and also for initiating a fresh process for selection of the Contractor by issuing the fresh NTT. The decision relating to the construction of new Assembly building at Upper Shillong, however, was subsequently changed, in view of the Cabinet decision taken in its proceeding dated 24th August, 2009 for allotment of the land at Taraghar. Pursuant to the decision of the High Power Committee, the process for selection of the architect was initiated for preparation of Detailed Project Report (DPR) and accordingly: one architectural firm, namely M/s Architect Consultants Private Limited, was selected for preparation of the DPR. The DPR submitted by the said approved firm for construction of 32037 Sq. Mtr. new Assembly building at Taraghar, Shillong at the estimated cost of about Rs. 256 Crores was approved by the High Power Committee in its proceeding dated 10th November, 2010. The DPR submitted by the said approved firm for construction of 32037 Sq. Mtr. new Assembly building at Taraghar, Shillong at the estimated cost of about Rs. 256 Crores was approved by the High Power Committee in its proceeding dated 10th November, 2010. In the meantime, the aforesaid Corporation was entrusted with the job of getting the said project executed, in place of the PWD, which was earlier identified as the executing agency for construction of the new Assembly building at Police Bazaar as well as at Mawdiangdiang. Pursuant to the decision of the High Power Committee, the impugned EOI dated 10th December, 2010 was issued by the Managing Director of the Corporation, inviting prequalification bid from established registered and experienced contractors of the State Government, Central Government, Government Undertaking for construction of new Meghalaya Legislative Assembly building over a plot of land measuring 6 Acres at Taraghar complex, Shillong with built up area of about 32,040 Sq. Mtr. at the estimated cost of about Rs. 256 Crores with the stipulation that the contractors/firms, who have executed similar nature of works worth more than Rs. 160 Crores covered by single work order or two similar nature of works each of value more than Rs. 100 Crores in last seven years would be eligible for empanelment. 2. The petitioner has filed the present petition challenging the aforesaid EOI on the grounds that:- (i) The same cannot be issued during subsistence of the contract between her and the Secretary, Legislative Assembly dated 12th November, 2004 for const ruction of the new Assembly building al Mawdiangdiang. (ii) The stipulation in the EOI relating to the eligibility of the contractors/firms to participate in the process of empanelment is tailor made with a view to outs the petitioner from participating in the said process. (iii) The entire exercise initiated by issuing the said EOI is against public interest, as a huge amount is sought to be spent for construction of the new Assembly building, without there being any sanction of fund by the Government before initiation of such process. 3. I have heard Mr. HS Thangkhiew, learned senior counsel for the petitioner, Mr. Kinjing, the Advocate General, Meghalaya for the respondent No. 1, Mr. A. Dasgupta, learned counsel appearing for the respondent No. 2 and Mr. S. Dutta, learned counsel appearing for the respondent Nos. 3 and 4. 4. Mr. 3. I have heard Mr. HS Thangkhiew, learned senior counsel for the petitioner, Mr. Kinjing, the Advocate General, Meghalaya for the respondent No. 1, Mr. A. Dasgupta, learned counsel appearing for the respondent No. 2 and Mr. S. Dutta, learned counsel appearing for the respondent Nos. 3 and 4. 4. Mr. Thangkhiew, learned senior counsel for the petitioner challenging the EOI issued by the Corporation dated 10th December, 2010 and referring to the averments made in the writ petition as well as in the affidavits filed by the respondents has submitted that it is apparent that though the work order for construction of new Assembly building at Police Bazaar was initially issued on 6th January, 2003 and thereafter, at over the new site at Mawdiangdiang on 12th November, 2004, pursuant to which the agreement was entered into on 12th November, 2004 for that purpose, the High Level Committee constituted for the purpose of construction of the Assembly building has without terminating the contract as well as the agreement executed between the parties decided to shift the site of construction to Taraghar and also to change of the executing agency, namely from PWD to the Corporation, and accordingly floated the EOI on 10th December, 2010. It has been submitted that as per the agreement dated 12th November, 2004 entered into between the petitioner and the Secretary of the Legislative Assembly, the same, as well as the work order, can be cancelled only on violation of any conditions of the contract and since there was no violation on the part of the petitioner any of the conditions of the contract, in no case the Secretary, Legislative Assembly can terminate the contract dated 12th November, 2004. It has also been submitted that the EOI issued on 10th December, 2010 is tailor made so as to outs the petitioner from the contention by putting an unreasonable condition that the contractor or the firm, who have executed the similar nature of works worth more than Rs. 160 Crores covered by single work order or two similar nature of works each of value more than Rs. 100 Crores in the last 7(seven) years are eligible for empanelment, knowing fully well that the petitioner did not do the similar nature of works worth the aforesaid amount within the aforesaid period of time. 160 Crores covered by single work order or two similar nature of works each of value more than Rs. 100 Crores in the last 7(seven) years are eligible for empanelment, knowing fully well that the petitioner did not do the similar nature of works worth the aforesaid amount within the aforesaid period of time. The learned counsel, therefore, submits that the EOI dated 10th December, 2010 issued by the Corporation putting such unreasonable eligibility condition needs interference in exercise of the writ jurisdiction under Article 226 of the Constitution of India. 5. Referring to the information furnished to the petitioner by the Corporation on 3rd August, 2012, in reply to the queries made under the Right to Information Act, copy of which has been produced during the course of hearing, the learned counsel for the petitioner submits that it is evident there from that the EOI has been issued even before the estimated cost is sanctioned by the Government. It has also been submitted that the source of fund for construction of the new Assembly building even has not been informed to the Corporation. The learned counsel submits that the act of the Corporation in issuing the EOI is nothing but the window shopping, which has deliberately been carried out to circumvent the entire process and to cast a cloud over the rights of the petitioner, apart from an attempt to outs her to participate in the EOI. 6. Mr. Thangkhiew, learned counsel further submits that though the change of the site from Mawdiangdiang to Taraghar, preparation of a fresh DPR, enhancement of the estimated project cost, execution of the project through the Corporation as well as floating of the EOI are the policy decisions, the same can be challenged in a writ proceeding if such decisions are contrary to public interest. It has also been submitted that such policy decision can also be interfered with by the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India, if the same is unreasonable, arbitrary, unfair or actuated by malice. It has also been submitted that such policy decision can also be interfered with by the High Court in exercise of the jurisdiction under Article 226 of the Constitution of India, if the same is unreasonable, arbitrary, unfair or actuated by malice. The learned counsel drawing the attention of this Court to the facts, as narrated above, has submitted that the entire action of the respondents in shifting the site, change of the executing agency and floating of the EOI are arbitrary, unreasonable and unfair and also against public interest, as it is evident from the aforesaid reply furnished by the Corporation to the application filed by the petitioner under the Right to Information Act, 2005 that the fund is yet to be sanctioned and the Corporation does not know the source of the fund to be made available by the Government. The learned counsel, therefore, submits that the EOI issued by the Corporation on 10th December, 2010 requires to be set aside in exercise of the jurisdiction under Article 226 of the Constitution of India, as it amounts to wastage of public money and the same is against the public interest. Mr. Thangkhiew further submits that the contention of the respondents in the affidavits-in-opposition filed that since the contract between the petitioner and the Secretary of the Legislative Assembly is not a statutory contract and the dispute raised in the writ petition is a contractual disputes simpliciter under the private law of contract, the writ petition is not maintainable, cannot be accepted, as the action of the respondents are manifestly arbitrary, malafide, illegal and against the public interest. In any case, according to the learned counsel, the petitioner is atleast entitled to compensation for violation of her contractual right. 7. In any case, according to the learned counsel, the petitioner is atleast entitled to compensation for violation of her contractual right. 7. The learned senior counsel in support of his contention relating to the jurisdiction of this Court to interfere with the policy decision of the Government, has placed reliance on the decision of the Apex Court in Akhil Bhartiya Upbhokta Congress vs. State of Madhya Pradesh & other reported in (2011) 5 SCC 29 , in Centre for Public Interest Litigation & other vs. Union of India & other reported in (2012) 3 SCC 1 ; in Union of India & other vs. Rafique Shaikh Bhikan & another reported in (2012) 6 SCC 265 and in Brij Mohan Lal vs. Union of India & other reported in (2012) 6 SCC 502 . The learned counsel has also placed reliance on the decision of the Apex Court in Subhash Projects & Marketing Ltd. vs. W.B. Power Development Corporation Limited & other reported in (2005) 8 SCC 438 to drive home his contention that if the action of the State is arbitrary, the writ Court has the jurisdiction to compensate the petitioner with due compensation for violation of her contractual right. 8. Mr. Kinjing, learned Advocate General, per contra, has submitted that keeping in view the requirement of having a new Assembly building, after the old Assembly building was gutted by fire, though a decision was earlier taken to construct the same, initially at its original place, i.e. at Police Bazaar, the same, however, was changed to Mawdiangdiang, as the site at Police Bazaar was not found suitable for having the required building. The learned Advocate General further submits that the said site was again changed to Taraghar, having regard to the requirement and suitability as well as pursuant to the decision of the State Government to make available the required land measuring 6 Acres for construction of the new Assembly building. The said decision, according to the learned Advocate General, was taken in public interest and cannot at any stress of imagination be termed as against public interest, as contended by the learned counsel for the petitioner. It has also been submitted that though initially the contract for construction of the Assembly building at Police Bazaar and thereafter, at Mawdiangdiang was awarded in favour of the petitioner alongwith another firm, project cost of which was Rs. It has also been submitted that though initially the contract for construction of the Assembly building at Police Bazaar and thereafter, at Mawdiangdiang was awarded in favour of the petitioner alongwith another firm, project cost of which was Rs. 20.55 Crores, the High Power Committee, constituted by the Speaker of the Legislative Assembly having regard to the requirement was of the opinion that the proposed construction with about 9,300 Sq. Mtrs. built up area at the estimated cost of Rs. 20.55 Crores, would not cater the need and as such, decided to have the new Assembly building constructed at Taraghar over a plot of land measuring 6 Acres, which is made available by the Government of Meghalaya, Pursuant to such decision, the process for identification of the architectural firm for preparation of the DPR was initiated and accordingly an architectural firm was selected for preparation of the DPR. The said firm submitted the DPR with the estimated cost of Rs. 254.64 Crores with the proposed built up area of 32037 Sq. Mtr. 9. The learned Advocate General further submits that since decision to have the construction of the required building with the estimated cost of about Rs. 256 Crores was taken, the eligibility condition under challenge had to be put in the EOI, with a view to empanel such contractors/firms, which have the financial capacity and capability to undertake the work. The learned Advocate General, therefore, submits that such a condition is not at all unreasonable and arbitrary, as contended by the learned senior counsel for the petitioner. It has also been submitted by the learned Advocate General that the decision relating to preparation of a new DPR and to float of the impugned EOI, dated 10th December. 2010 signifies the cancellation of the agreement executed between the petitioner, another firm and the Secretary of the Legislative Assembly. It has also been submitted that even if such action does not amount to termination of the said contract, the petitioner, at the most, would be entitled to damages for breach of the contract, for which she has to establish her right in the Civil Court to get the compensation In fact, according to the learned Advocate General, pursuant to the demand made by the petitioner, an amount about Rs. 2 Crore was paid to her, towards the loss suffered by her. 10. 2 Crore was paid to her, towards the loss suffered by her. 10. The learned Advocate General further submits that as the petitioner is not eligible to participate in the process initiated by the Corporation by issuing the impugned EOI, she has no right to challenge the same, more so when the impugned condition put in the EOI is not tailor made to suit only a particular contractor or firm. It has also been submitted that the contention of the petitioner that the process issued by the impugned EOI is against public interest, cannot be accepted, as the said decision was taken having regard to the attending facts and circumstances and the requirement of the Meghalaya Legislative Assembly. The learned Advocate General further submits that such a plea is not at all available to the petitioner as she wants to stall the entire process and though is not eligible, wants to have the contract for construction of the new Assembly building with the estimated costs of about Rs. 256 Crores. The learned Advocate General further submits that the required fund for construction of the Assembly building would be made available by the Government. 11. Mr. Dasgupta, learned counsel appearing for the respondent No. 2, supporting the argument advanced by the learned Advocate General, has also submitted that while the project cost of the earlier proposed Legislative Assembly building at Mawdiangdiang was Rs. 20.55 Crores, the estimated cost of the new Assembly building at Taraghar is about Rs. 256 Crores and as such, the impugned condition has been put in the EOI issued by the Corporation, pursuant to the decision of the High Power Committee constituted for that purposes, so that only the contractors/firms having the financial capacity and capability can participate in such process of empanelment. Such condition, therefore, according to the learned counsel, cannot be termed as arbitrary, unreasonable or unfair. The learned counsel further submits that since such condition in the EOI is not to benefit a particular contractor or firm and it is open to all contractors/firms, who fulfill such norms, to participate in the said process, the contention of the petitioner that such condition is tailor made cannot be accepted, though the petitioner admittedly having not fulfilled such eligibility criteria cannot participate in the said process. 12. 12. The learned counsel further submits that in view of the subsequent decision taken for shifting of the site from Mawdiangdiang to Taraghar for construction of the Assembly building and the preparation of the DPR signifies the cancellation of the earlier work order issued in favour of the petitioner as well as the agreement, both dated 12th November, 2004, amongst the petitioner, another firm and the Secretary of the Legislative Assembly. The learned counsel further submits that in fact the petitioner has been paid Rs. 1,89,80,328/- pursuant to her bill for the work she did in the earlier sites, which the petitioner has accepted and hence, now she cannot turn around and dispute the change of site and also the initiation of a fresh process for empanelment of the contractors/firms to undertake the construction work pursuant to the DPR prepared and accepted by the authority. Mr. Dasgupta further submits that if the petitioner is entitled to any further amount under the earlier contract as well as the agreement, she has to file a suit claiming such amount in the appropriate Court having jurisdiction over the matter, as it requires determination of facts, after examination of evidences, which cannot conveniently be done in a writ proceeding under Article 226 of the Constitution of India. 13. Mr. Dasgupta further submits that as the Assembly building proposed to be constructed at Mawdiangdiang having about 9,300 Sq. Mtr. of built up area was not found to be adequate, a decision was taken to have the construction of such building with the built up area of more than 32000 Sq. Mtr. over the land measuring 6 Acres at Taraghar, which was made available by the Government of Meghalaya, having regard to the requirement of the Legislative Assembly. Accordingly, the DPR was prepared and the EOI was floated by the Corporation, which being a Government owned Corporation, has been identified as executing agency. The learned counsel submits that the petitioner cannot have any grievance relating to the change of the executing agency from PWD to the Corporation as no right of her has been violated for such action and as the same is a policy decision not vitiated by any malafide, unreasonableness, arbitrariness or unfairness. Mr. Dasgupta further submits that the action of the authority to construct the Legislative Assembly building with the estimated cost of about Rs. Mr. Dasgupta further submits that the action of the authority to construct the Legislative Assembly building with the estimated cost of about Rs. 256 Crores having regard to the requirement, cannot be termed as against public interest. According to Mr. Dasgupta, had the Assembly building been constructed in Mawdiangdiang with the built up area of about 9,300 Sq. Mtr. at the estimated cost of Rs. 20.55 Crores, the same would have been against public interest, that being not as per the requirement, as in that case, there would have been another construction somewhere else by unnecessarily spending the public money. The learned counsel further submits that though the required fund has not been sanctioned by the Government of Meghalaya for construction of the new Assembly building till the issuance of the EOI, the Government definitely shall sanction the required fund from. The learned counsel also submits that the dispute sought to be raised by the petitioner in the present petition being in the realm of private contractual dispute, the writ petition is not maintainable. The learned counsel in support of his contention has placed reliance on the decision of the Apex Court in National Highways Authority of India vs. Ganga Enterprises & another reported in (2003) 7 SCC 410 ; in Directorate of Education & other vs. Educomp Datamatics Limited & other reported in (2004) 4 SCC 19 and in Meerut Development Authority vs. Association of Management Studies & another reported in (2009) 6 SCC 171 . 14. Mr. Dutta, learned counsel appearing for the Corporation has also adopted the arguments advanced by the learned Advocate General as well as by the learned counsel appearing for the Legislative Assembly. It has further been submitted by Mr. Dutta that it is open to the authority to put condition in the EOI as the authority is the best person to do so, keeping in mind its requirement. The learned counsel submits that by putting the impugned conditions in the EOI, the Corporation wants to empanel those contractors/firms, which are competent to complete the project and have the financial capability to do so within the time allowed. The learned counsel submits that by putting the impugned conditions in the EOI, the Corporation wants to empanel those contractors/firms, which are competent to complete the project and have the financial capability to do so within the time allowed. It has been submitted that, on the other hand, had such condition not been put in the EOI, the same would have been unreason able and arbitrary, as it would then be open to all the contractors irrespective of their financial capability to participate in the process, consequence of which may be non completion of the work by such contractor because of the financial incapability as well as for lack of experience of execution of such work of such magnitude. The learned counsel further submits that as the petitioner is not qualified to participate in the process initiated by the EOI, she cannot challenge the same in a writ proceeding. That apart, according to the learned counsel, the writ petition is belated as the petitioner has approached this Court after about 6 (six) years from the date when the petitioner was asked to stop the construction of the building vide communication dated 11th January, 2005. The learned counsel in support of his contention has placed reliance on the decision of the Apex Court in Raunaq International Limited vs. I.V.R. Construction Ltd. & Ors, reported in (1999) 1 SCC 492 . 15. The argument advanced by the learned counsel for the parties received my due consideration. I have also perused the pleadings of the parties in their respective affidavits, apart from the relevant documents produced before the Court by the parties for consideration. 16. As noticed above, petitioner has challenged the process initiated by issuing the EOI by the respondent Corporation on the ground that there being a subsisting contract with the petitioner for construction of the new Assembly building no EOI could be issued, apart from the ground that the said process is against public interest. The petitioner has also challenged the eligibility conditions in the EOI. 17. The challenge made to the eligibility-conditions put in the EOI on the ground that the same is tailor made with a view to deprive the petitioner from participating in the process, and as such unreasonable and arbitrary, would first be considered. The petitioner has also challenged the eligibility conditions in the EOI. 17. The challenge made to the eligibility-conditions put in the EOI on the ground that the same is tailor made with a view to deprive the petitioner from participating in the process, and as such unreasonable and arbitrary, would first be considered. For better appreciation of the arguments advanced by the learned counsel for the parties, the offending eligibility clause in the EOI is reproduced below:- The Contractors/Firms who have executed similar nature of works worth more than Rs. 160.00 crores (Rupees one hundred sixty crores) only covered by single work order or two similar nature of works each of value more than Rs. 100.00 crores (Rupees one hundred crores) only in the last 7(seven) years are only eligible for empanelment. 18. As discussed above, the estimated costs for construction of the new Assembly building at Taraghar is about Rs. 256 Crores with the built up area of about 32,000 Sq. Mtr. The earlier contract for construction of the Assembly building at Police Bazaar and thereafter, at Mawdiangdiang awarded to the petitioner was with the project costs of Rs. 26.61 Crores and Rs. 20.55 Crores, respectively with the built up area of 9,395 Sq. Mtr. The earlier project was for construction of a two storied building with provision for two more stories to be constructed in future as against the five storied building proposed to be constructed at Taraghar at the aforesaid estimated costs of about Rs. 256 Crores. The authority having regard to the nature of construction and also the estimated costs involved in the project has decided to incorporate the aforementioned eligibility criteria in the EOI and accordingly, the executing agency, namely the Corporation, issued the EOI. The authority being the best judge as to the eligibility criteria to be put on any EOI, having regard to its requirement as well as the project costs, the aforesaid eligibility criteria, as fixed by the authority cannot be challenged by an intending bidder in a writ proceeding, the same being in the realm of contract, provided such term is not arbitrary, unreasonable or unfair and is tailor made to suit the convenience of any particular person with a view to eliminate all others from participating in the process. The scope of judicial review of the term of the EOI is, therefore, very limited, which, however, is also available if such term is discriminatory or vitiated by malafide. 19. In Monarch Infrastructure (P) Limited vs. Commissioner, Ulhasnagar Municipal Corporation & other reported in (2000) 5 SCC 287 , the Apex Court has held that the terms and conditions in the tender being prescribed by the Government bearing in mind the nature of contract and in such matter the authority calling for the tender being the best judge to prescribe the terms and conditions of the tender, it is not for the Court to say whether the conditions prescribed in the tender are better then the one prescribed in the earlier tender of invitation. The Apex Court has held that the terms and conditions in the tender, therefore, is not open to judicial scrutiny, unless of course, the same is arbitrary, unreasonable, unfair, discrirninatory and actuated by malice. The Apex Court in Directorate of Education (supra) has observed that it is being within the power of the authority to set terms in the tender, the Court would not interfere with the terms of the tender unless it is shown to be either arbitrary or discriminatory. It has further been observed that the terms of the invitation to the tender are not open to judicial scrutiny, the same being in the realm of contract. 20. The Apex Court in Meerut Development Authority (supra) referring to its earlier decisions has reiterated the legal position that the terms of invitation to tender is not open to judicial scrutiny because the invitation to tender is in the realm of contract. It has further been reiterated that a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all other persons from participating in the bidding process. The Apex Court has further opined that the bidders participating in the tender process have no other right, except the right to equality and fair treatment in the; matter of evaluation of competitive bids offered by interested persons in response to the notice inviting tenders in a transparent manner and free from hidden agenda. 21. The Apex Court has further opined that the bidders participating in the tender process have no other right, except the right to equality and fair treatment in the; matter of evaluation of competitive bids offered by interested persons in response to the notice inviting tenders in a transparent manner and free from hidden agenda. 21. In National Highways Authority of India (supra), the Apex Court has also held that the dispute relating to the contract cannot be agitated under Article 226 of the Constitution of India, which includes the terms of the offer, for which the writ Court is not the proper forum to raise the contractual disputes. It has, however, been held that there was always an exception as the writ Court may entertain a writ petition even in the contractual matter if the same is filed for enforcement of the statutory right or duty. 22. In the instant case, the aforementioned eligibility criteria has been put in the EOI issued by the respondent Corporation, keeping in view the nature of work as well as the project costs, so that only the contractors/firms having the financial capability to perform the work of such magnitude are empanelled, and for want of finance and expertise to handle the project of such magnitude the selected firm is not backed out from the contract subsequently, which would then be against public interest because in that case, the value of the project would be increased due to passage of time and consequently escalation etc., as the work then has to be allotted to some other contractors having the sufficient financial ability and expertise, which will also delay the completion of the project. By the aforesaid conditions put in the EOI, the authority has invited the empanelment of those contractors/firms having financial capability and expertise, keeping in view the project costs, which is about Rs. 256 Crore. By such clause, all the contractors and firms having such financial capability would be eligible to participate in the process of empanelment and as such, the said condition cannot be termed as tailor made to suit the convenience of a particular contractor or firm, though it excludes the contractor or firm, like the petitioner, who does not have the minimum financial capability fixed in the EOI. The said condition, therefore, cannot be termed as arbitrary, unreasonable, unjust or actuated by malice. The said condition, therefore, cannot be termed as arbitrary, unreasonable, unjust or actuated by malice. The said condition also cannot be termed as discriminatory as the authority by putting such condition in the EOI is not intending to discriminate amongst the contractors/firms fulfilling the conditions. The contention of the petitioner, therefore, in this regard cannot be accepted and hence rejected. 23. Another ground on which the entire process initiated by the authority, by issuing the EOI for empanelment of the contractors/firms for construction of the Assembly building at Taraghar, has been put to challenge is that the same is against public interest. As noticed above, according to the petitioner, though the estimated amount has not been sanctioned and the Corporation, i.e., executing agency, does not know about the source of the fund, they have issued the impugned EOI for empanelment of the contractors/firms, which, according to the petitioner, is nothing but an act of window shopping carried out only to circumvent the right of the petitioner under the contract awarded to him to build the Assembly building, It is also the contention of the petitioner that such decision of the authority to have the construction of the Assembly building at Taraghar at the estimated cost of more than Rs. 256 Crores is against public interest being nothing but the wastage of public money. 24. The scope of judicial review of the policy decision of the Government is limited. The writ Court in exercise of the jurisdiction under Article 226 of the Constitution of India, no doubt can interfere with the policy decision of the Government, provided it is actuated by malice or is unreasonable, arbitrary or unfair or the same is violative of any statutory provision. Such policy decision can also be challenged if the same is against public interest. In commercial transaction where the State or the public body is a party, the writ Court can entertain a writ only when some element of public interest involved in entertaining such a petition. The writ petition at the instance of a contractor for attaining his private ends, on the ground of public interest, cannot, however, be maintained. In commercial transaction where the State or the public body is a party, the writ Court can entertain a writ only when some element of public interest involved in entertaining such a petition. The writ petition at the instance of a contractor for attaining his private ends, on the ground of public interest, cannot, however, be maintained. The Court should also be slow in entertaining a writ petition in a contractual matter and while considering the involvement of public interest, the Court must bear in mind that by the Court's intervention the proposed project may considerably be delayed thus escalating the cost far more than any saving, which would ultimately have the effect in the public money. The Court would, however, entertain a writ petition if the entire action is actuated by malice or the process has been initiated for collateral purposes [Raunaq International limited – supra]. 25. In Akhil Bharatiya Upbhokta Congress (supra) the Apex Court while scrutinizing the legality and validity of the decision of the Government of Madhya Pradesh to allot 20 Acres of land to a private trust without any advertisement and without inviting other similarly placed organizations/institutions to participate in the process of allotment has held that the State and/or its agencies/instrumentalities cannot give largesse to any person according to the sweet will and whims of the political entities and/or officers of the State. Every action/decision of the State and/or its agencies/instrumentalities to give largesse or confer benefit must be founded on a sound, transparent, discernible and well-defined policy, which shall be, made known to the public by publication in the official gazette and other recognized modes of publicity and such policy must be implemented/executed by adopting a non-discriminatory and non-arbitrary method irrespective of the class or category of persons proposed to be benefited by the policy. It has further been held that the distribution of the largesse by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State. 26. It has further been held that the distribution of the largesse by the State and its agencies/instrumentalities should always be done in a fair and equitable manner and element of favouritism or nepotism shall not influence the exercise of discretion, if any, conferred upon the particular functionary or officer of the State. 26. In Centre for Public Interest Litigation (supra), commonly known as 2G Spectrum scam case, the Supreme Court has opined that the power of judicial review of the policy decision of the State should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters. It has further been opined that the Court cannot substitute its own opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentally and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise the jurisdiction in larger public interest In Rafique Shaikh Bhikan case, the Apex Court has reiterated that when there is arbitrariness in the State action, the Court in exercise of its power of judicial review can interfere with such action. The Apex Court in Brij Mohan Lal (supra) while dealing with the scope of judicial review of the policy decision of the Government has reiterated its earlier view that the framing and implementation of the policy primarily falls in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. It has further been opined that it is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. The Apex Court further held that the Courts would decline to exercise the power of judicial review in relation to such matters, with the exception that it would not refuse to adjudicate upon the policy matters if such policy decisions are arbitrary or unreasonable, capricious or malafide as such policy decision is subject to the basic constitutional limitations. The Apex Court further held that the Courts would decline to exercise the power of judicial review in relation to such matters, with the exception that it would not refuse to adjudicate upon the policy matters if such policy decisions are arbitrary or unreasonable, capricious or malafide as such policy decision is subject to the basic constitutional limitations. It is a settled position of law that the Government is at liberty to change the policy decision from time to time. 27. In the case in hand, the policy decision was taken by the authority to construct a new Assembly building after the old one was gutted by fire. The earlier decision to construct a new Assembly building initially at Police Bazaar and thereafter, at Mawdiangdiang with about 9,300 Sq. Mtr. floor area and at the estimated cost of about Rs. 20 Crores was subsequently changed and a decision was taken to construct such Assembly building with about 32000 Sq. Mtr. built up area with the estimated cost of about 256 Crores. The said decision was based on the requirements of having a full fledged Assembly building, after undertaking an exercise for that purpose by the High Power Committee. Such policy decision in no stress of imagination be termed as arbitrary, unreasonable, unjust, capricious or actuated by malice or violative of the basic constitutional limitations. It is also not the case of the petitioner that such decision is contrary to the provisions of any legislation. Such policy decision of the authority being based on the requirement on due consideration of all relevant facts is, therefore, not open to challenge in the writ proceeding. The ground taken by the writ petitioner, based on the information supplied to him by the respondent Corporation under the Right to Information Act, that even the fund has not been sanctioned and the Corporation does not know the source of the fund, cannot be the ground for interference of the policy decision, as it is the responsibility of the State to make available the required fund for construction of the said building from whatever may be the legal source. The said decision to construct the Assembly building at the estimated cost of about Rs. 256 Crores also cannot be termed as against public interest. The said decision to construct the Assembly building at the estimated cost of about Rs. 256 Crores also cannot be termed as against public interest. On the other hand had, pursuant to the earlier decision taken, an Assembly building been constructed, it would have been against public interest the same being not as per the requirement, as in that case, the authority had to have further construction after few years at a much high cost, thereby unnecessarily spending more public money. That apart, it is not open to the petitioner to challenge such decision on the ground that it is against public interest, who in fact wants to have the work, for construction of the Assembly building at Taraghar with the estimated costs of about Rs. 256 Crores, on the basis of the earlier work order issued in her favour and even without fulfilling the eligibility criteria This writ petition being at the instance of the contractor on the ground of public interest, but only with a view to attain her private ends cannot be entertained. 28. The plea of the petitioner that since the contract awarded to her on 12th November, 2004 for construction of the Assembly building at Mawdiangdiang has not been terminated and as such, no EOI could have been issued by the respondent Corporation on 10th December, 2010, cannot also be accepted, as by taking the decision to construct the new Assembly building with the estimated cost of more than Rs. 256 Crores with the built up area of more than 32000 Sq. Mtr. and to issue a fresh EOI, the earlier contract between the parties have the effect of termination. The High Power Committee in its proceeding dated 5th December, 2006 took the decision to issue fresh process for identification of the contractor/firm to execute the construction work at Upper Shillong. It is also an admitted position of fact that the petitioner has been paid about Rs. 2 Crores for the work done pursuant to her claim. In any case, if the petitioner has suffered any loss for violation of the terms of contract, she may file appropriate suit in the appropriate Court of law having jurisdiction over the matter seeking damages. 2 Crores for the work done pursuant to her claim. In any case, if the petitioner has suffered any loss for violation of the terms of contract, she may file appropriate suit in the appropriate Court of law having jurisdiction over the matter seeking damages. Though the learned counsel for the petitioner during the course of argument has also submitted that at least the compensation for breach of the contract may be awarded in the writ proceeding, the same cannot be done, as before passing such order, the petitioner has to establish the quantum of damage caused to her and also the right to get such compensation by adducing evidence in an appropriate Civil Court having jurisdiction over the matter. That apart, the other firm, namely M/s Dona Builders Private Limited, who was awarded the earlier contract with the petitioner, is not a party in this writ petition. The decision of the Apex Court in Subhash Projects & Marketing Ltd. (supra) is not applicable in the facts and circumstances of the case in hand, as in that case, the direction was for payment of certain amount for getting the contract by dubious means and to disgorge at least a portion of the property that would have earned from the working of the contract by the person entitled to receive. 29. The change of the executing agency from the PWD to the respondent Corporation, which is a State Government owned corporation, also cannot be the ground available to the petitioner to challenge the EOI issued by the respondent Corporation, such change having not violated any of rights of the petitioner. The change of site being the decision of the authority having regard to the requirement and suitability cannot be challenged, unless such decision is actuated by malafide, unreasonable, unfair or discriminatory, as the authority is the best judge to decide on its requirement. The writ Court cannot substitute its own opinion on the matter of selection of site. The petitioner has miserably failed to demonstrate existence of any of the grounds on which the said decision can be challenged. In view of the aforesaid discussion, I am of the view that the writ petitioner could not make out any ground to interfere with the EOI issued by the respondent Corporation. Hence, the writ petition is dismissed. Petition dismissed.