JUDGMENT: V.M. Kanade, J. 1. Heard Mr. S. D. Lotlikar, learned Senior Advocate for the petitioner, Mr. S. Dhargalkar, learned Addl. Govt. Advocate for respondents No.1 and 2, Mr. D. Pangam, learned Advocate for respondent No.3 and Mr. R. Gawthankar, learned Advocate for respondent No.4. 2. Rule. Rule made returnable forthwith. Heard by consent. 3. By this petition which is filed under Articles 226 and 227 of the Constitution of India, the petitioner had initially claimed the following two reliefs : “i) For a Writ of Mandamus, or any other writ, direction or order; directing the Respondents to open the Financial-Bid, and finalize the award of contract for running the Canteen at the 'RAVINDRA-BHAVAN', Margao, before 10th November, 2012; and in any event, before the Petitioner is asked to vacate the Canteen premises. ii) For an Order, restraining the Respondent No.3 from interfering with the Petitioner's running the said Canteen at the 'RAVINDRA-BHAVAN', Margao-Goa, pending the finalization of the award of the new contract for running the Canteen, pursuant to the Tender Notice published in the daily 'The Navhind Times' dated 17.9.2012” However, thereafter, the petitioner amended the petition and prayed for the following additional reliefs. “i) For a Writ of Certiorari, or any other appropriate writ, order or direction, quashing and setting aside the decision of the Respondent No.3, not to open the 'Financial Bid' of the Petitioner; and a consequent direction, directing the Respondent No.3 to open the 'Financial-Bid' and finalize award of Contract of RAVINDRA-BHAVAN, Margao-Goa, after considering the Petitioner's Financial-Bid; ii) For a Writ of Certiorari, or any other appropriate writ, order or direction, quashing and setting aside the Work Order dated 5-11-12 in favour of the Respondent No.4; iii) For a Writ of Mandamus, or any other appropriate writ, order or direction, commanding the Respondent Nos. 1, 2 and 3 to award the contract of running of the Canteen to the Petitioner, in the event of him being declared the highest bidder; and/or to consider the Petitioner's case for award of Tender for running of the said Canteen, in terms of the tender notice dated 17-09-2012, on the footing that the Petitioner's technical bid is in order and, therefore, liable to be accepted; iv) For an interim Order, restraining the Respondent No.3, from entering into any Agreement with the Respondent No.4, in regard to running of the Canteen at RAVINDRA-BHAVAN, Margao-Goa, pursuant to the Work Order dated 5-11-12; v) For an Order, restraining the Respondent No.3 from interfering with the Petitioner's running the said Canteen at the “RAVINDRA-BHAVAN”, Margao-Goa, pending the finalisation of the award of the new contract for running the canteen, pursuant to the Tender Notice published in the daily 'The Navhind Times' dated 17.9.2012.” 4. The brief facts, which are necessary for the purpose of deciding this petition, are as under: The petitioner carries on a business of catering under the name and style “Jude Caterers”. Respondent No.3 is an institution belonging to and run by the Government of Goa at Margao. For running a canteen in the Ravindra Bhavan Complex, the petitioner was awarded a contract for the year 2010-2011. The said contract was also extended for a period of one year and thereafter, fresh tenders were invited by respondent No.3 for the year 2012-2013. The tender notice was published in the daily 'The Navhind Times' dated 17th September, 2012 and the last date for submitting the tender was 9th October, 2012. The tender provided that the tenders should be submitted in two envelopes, one containing technical bid and the second containing financial bid. The tender also provided that if the tender was qualified for technical bid, only thereafter the financial bid would be opened. The tender also provided that the technical bid would be placed before the committee constituted for appraisal of qualified tenders and the date of opening of the financial bid would be intimated to the qualified tenderers. The petitioner, accordingly, submitted his tender in the prescribed format in two sealed envelopes. In all three tenders were received by respondent No.3. The tender also provided that the technical bid would be placed before the committee constituted for appraisal of qualified tenders and the date of opening of the financial bid would be intimated to the qualified tenderers. The petitioner, accordingly, submitted his tender in the prescribed format in two sealed envelopes. In all three tenders were received by respondent No.3. The technical bid was opened on 9th October, 2012 and the petitioner's tender was found complying with the requirements of the tender conditions and no defect was found in the technical bid. The tenders were then placed before the appraisal committee. In the meantime, the petitioner's earlier contract was extended upto 10/11/2012 by letter dated 31st October, 2012. Initially, in the petition, it was contended that the petitioner was waiting to receive intimation about the result of the opening of the financial bid. It was initially alleged that the petitioner had an apprehension that respondent No.3 was deliberately delaying opening of the financial bid since it had already decided to refuse award of the contract in favour of the petitioner and, therefore, it was prayed in the petition that the respondents should be directed to open the financial bid and finalise the award of contract. The petitioner also further asked for an order of injunction restraining respondent No.3 from interfering with the petitioner running the said canteen, pending finalization of award of contract for running the canteen. In the meantime, however, respondent No.3 awarded the contract to respondent No.4-Adhik Naik Usgaonkar. The petitioner, therefore, amended the petition and added the successful tenderer as respondent No.4. The petitioner also added paras 16A and 16B and claimed further relief in the petition, namely for setting aside of the tender in favour of respondent No.4 and awarding of tender in favour of the petitioner. 5. Respondent No.3 has filed an affidavit-in reply denying the allegations made by the petitioner in the petition. It was contended that no fault was found in the technical bid of the petitioner. On account of some complaints received against the petitioner, the appraisal committee had, in public interest, decided not to award the contract to the petitioner and decided to award it to some other person. It was submitted that pursuant to the contract that is awarded to respondent No.4, he has taken charge of the canteen and started running the canteen from 8thNovember, 2012. It was submitted that pursuant to the contract that is awarded to respondent No.4, he has taken charge of the canteen and started running the canteen from 8thNovember, 2012. An additional affidavit-in-reply was filed on behalf of respondent No.3 in which the allegations made by the petitioner against respondent No.3 were denied. 6. Respondent No.4 also has filed his affidavit-in-reply. 7. Mr. Lotlikar, learned Senior Counsel appearing on behalf of the petitioner submitted that the technical bid of the petitioner having been cleared, the appraisal committee had no other option, but to open the financial bid. It was submitted that with malafide intention the said financial bid was not opened and the petitioner's financial bid was not considered and the tender was awarded arbitrarily and unfairly to respondent No.4. He submitted that under the terms of the contract, it was the duty of respondent No.3 to inform the petitioner about the complaints received by respondent No.3 against the petitioner. He submitted that certain complaints were subsequently fabricated in order to justify the stand of respondent No.3. He submitted that this was evident from the fact that at no point of time the petitioner was informed about the said complaints, nor any explanation was called for from him. He submitted that respondent No.3 had given a certificate that the petitioner had worked for a period of two years in their canteen. He further submitted that earlier the contract was for a period of one year, which was subsequently renewed for a further period of one year and even thereafter in October, 2012, the period was extended till 10th November, 2012. He further submitted that if any complaint had been received against the petitioner, respondent No.3 would not have extended the period or would not have given clean certificate in respect of the past experience. He further submitted that the respondents were duty bound to act fairly and, this Court, while exercising its writ jurisdiction, has a right to examine the process which was followed by respondent No.3 and if it is found to be arbitrary or malafide, the entire act of respondent No.3 in the tender process was liable to be quashed and set aside. Reliance was placed on judgments of the Apex Court in the case of Tata Cellular vs. Union of India, reported in (1994) 6 SCC 651 and in the case of Meerut Development Authority vs. Association of Management Studies and another, reported in (2009) 6 SCC 171 . He further submitted that the petitioner was a small businessman and had invested a huge amount running into crores of rupees and if the tender is not awarded, he would incur huge losses. He also submitted that as a result of non-consideration of the petitioner's tender, he was black-listed, without giving him any hearing and, therefore, on that count also the said decision was liable to be quashed and set aside. 8. On the other hand, learned Counsel appearing on behalf of respondent No.3 submitted that respondent No.3 is a cultural organisation and the canteen was set up for the purpose of catering to the needs of the people who visit the auditorium. He submitted that the complaints which respondent No.3 had received, were regarding unhygienic conditions which were found in the canteen and secondly, it was noticed that the food in the canteen was not sold as per the rates which were prescribed by respondent No.3. It was submitted that in public interest, the appraisal committee had decided not to consider the bid of the petitioner and that further, under the tender agreement, more particularly, clause (35), the appraisal committee had every right to reject the bid, without assigning any reason. In support of the submissions, he relied on a Division Bench judgment of this Court in the case of Sharad Manilal Gosalia vs. The Superintending Engineer, Government of Goa and ors., reported in 1992(1) Bom.C.R. 244 and a judgment of the Apex Court in the case of Raunaq International Ltd., vs. I.V.R. Construction Ltd. and ors. reported in (1999) 1 SCC 492 . Lastly, it was submitted that in view of the ratio of the said judgments, the petition was liable to be dismissed. 9. Learned Counsel appearing on behalf of respondent No.4 submitted that he has started operating the canteen since 8th November, 2012 and has started paying the monthly compensation and has even paid an advance amount of Rs.96,000/-to respondent No.3. He submitted that while exercising the writ jurisdiction under Article 226 of the Constitution, this Court should not interfere with the process of awarding contract to respondent No.4. He submitted that while exercising the writ jurisdiction under Article 226 of the Constitution, this Court should not interfere with the process of awarding contract to respondent No.4. 10. Before hearing of the case commenced, we had directed the respondent No.3 to get the financial bid of the petitioner in a sealed cover and accordingly, a sealed cover was placed before us. It was opened by us in the presence of the learned Counsel for the petitioner, and the learned Counsel for the respondents. We found that the financial bid given by the petitioner was monthly contract fees of Rs.32,200/-. We have verified that the said bid was in a sealed envelope and, therefore, the contention of the petitioner that after the said bid was opened and after it was found that the financial bid of the petitioner was higher than that of respondent No.4, it was resealed and the documents were fabricated to show that the complaints had been received against him, is without any substance. We are unable to accept the said contention. We found that the seals of the said envelope were intact. It is an admitted position that respondent No.4 has given a financial bid of Rs. 32,000/- per month. 11. After having heard both sides at length, it is not possible to accept the submissions made by the learned Counsel appearing for the petitioner. It is well settled position in law that while exercising the writ jurisdiction under Article 226 of the Constitution of India, this Court cannot have a judicial review in respect of the decision to award contract and the Court can, at the most, consider whether the decision making process has been fair and just. The Apex Court in the case of Raunaq International Ltd. (supra) has observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction and in arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. In paras 9 and 10, the Apex Court has observed as under: “9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. In paras 9 and 10, the Apex Court has observed as under: “9. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. These would be: (1) the price at which the other side is willing to do the work; (2) whether the goods or services offered are of the requisite specifications; (3) whether the person tendering has the ability to deliver the goods or services as per specifications. When large works contracts involving engagement of substantial manpower or requiring specific skills are to be offered, the financial ability of the tenderer to fulfil the requirements of the job is also important; (4) the ability of the tenderer to deliver goods or services or to do the work of the requisite standard and quality; (5) past experience of the tenderer and whether he has successfully completed similar work earlier; (6) time which will be taken to deliver the goods or services; and often (7) the ability of the tenderer to take followup action, rectify defects or to give post-contract services. Even when the State or a public body enters into a commercial transaction, considerations which would prevail in its decision to award the contract to a given party would be the same. However, because the State or a public body or an agency of the State enters into such a contract, there could be, in a given case, an element of public law or public interest involved even in such a commercial transaction. 10. What are these elements of public interest? (1) Public money would be expended for the purposes of the contract. (2) The goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. (3) The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work — thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g., a delay in commissioning a power project, as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.“ 12. Similarly, in para 16, the Apex Court has observed that the past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on would play an important role in deciding to whom the contract should be awarded. It is observed in para 16 as under: 16. It is also necessary to remember that price may not always be the sole criterion for awarding a contract. Often when an evaluation committee of experts is appointed to evaluate offers, the expert committee's special knowledge plays a decisive role in deciding which is the best offer. Price offered is only one of the criteria. The past record of the tenderers, the quality of the goods or services which are offered, assessing such quality on the basis of the past performance of the tenderer, its market reputation and so on, all play an important role in deciding to whom the contract should be awarded. At times, a higher price for a much better quality of work can be legitimately paid in order to secure proper performance of the contract and good quality of work — which is as much in public interest as a low price. The court should not substitute its own decision for the decision of an expert evaluation committee.” 13. In paragraph 21 the Apex Court, after referring to its earlier judgment in the case of Fertilizer Corporation Kamgar Union (Red.) v. Union of India, reported in (1981) 1 SCC 568 , has observed thus : “21. The court should not substitute its own decision for the decision of an expert evaluation committee.” 13. In paragraph 21 the Apex Court, after referring to its earlier judgment in the case of Fertilizer Corporation Kamgar Union (Red.) v. Union of India, reported in (1981) 1 SCC 568 , has observed thus : “21. It is unfortunate that despite repeated observations of this Court in a number of cases, such petitions are being readily entertained by the High Courts without weighing the consequences. In the case of Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India 1 (1981) 1 SCC, 568 this Court observed that if the Government acts fairly, though falters in wisdom, the court should not interfere. The Court observed: (SCC p. 584, para 35) “35. A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangement ... emerges. ... The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration.” 14. The Apex Court in the case of Tata Cellular (supra), again has examined the scope of judicial review in the case of award of tender by a public authority and has observed that the said exercise has to be made in order to prevent arbitrariness of the decision making process. 15. The Division Bench of this Court in the case of Sharad Manilal Gosalia (supra), has observed that the past performance of a contractor is a factor which is germane to the award of the contract. In paragraph 10, it is observed as under: “10. It has to be borne in mind that all relevant aspects which are germane to the award of the contract have to be taken into consideration before awarding the same. In paragraph 10, it is observed as under: “10. It has to be borne in mind that all relevant aspects which are germane to the award of the contract have to be taken into consideration before awarding the same. It cannot be gainsaid that the past performance of a contractor is a factor which is germane to the awarding of the contracts to him in future. If, therefore, after further inquiry, the officers felt that the work of the petitioner in the previous contract was not satisfactory or upto the mark, the said factor can be brought to the notice of the higher authority before any subsequent contract is awarded to him. In the instant case, the Chief Engineer has opined that the past performance of the petitioner in respect of Distributory D2-D3 referred to above was not satisfactory which opinion was approved by the Secretary and ultimately by the Chief Minister. There is nothing in law to bind the Chief Minister by first query, viz; that the question whether the previous contract given to the petitioner or his father was cancelled. We cannot, therefore, accept the submission made on behalf of the petitioner that the officers could not have inquired into the question of his past performance because the Chief Minister did not require them to do so.” 16. Similar view has been taken by the Apex Court in the case of Meerut Development Authority vs. Association of Management Studies and another reported in (2009) 6 SCC 171 . 17. Keeping in view the ratio of the said judgments, the rival submissions will have to be taken into consideration. In our view, the submissions made by the learned Counsel for the petitioner cannot be accepted. Merely because the said complaints were not brought to his notice or no opportunity of hearing was given to the petitioner before not accepting his tender, would not create any right in his favour as held by the Apex Court in the case of Raunaq International Ltd. (supra) and by the Division Bench of this Court in the case of Sharad Manilal Gosalia (supra). It is always open for the Government or the public authority to refuse to accept or to refuse to consider the tender of a tenderer if it is found that his past performance is not good or complaints have been received against him. It is always open for the Government or the public authority to refuse to accept or to refuse to consider the tender of a tenderer if it is found that his past performance is not good or complaints have been received against him. In the present case, it has been alleged that complaints which are annexed to the affidavit-in-reply filed by respondent No.3 are, all got up documents. The said submission cannot be accepted. It is not necessary, in our view that each and every complaint which has been received, should be brought to the notice of the petitioner. There is no such requirement in law and there is no obligation on the part of respondent No.3 to inform the petitioner about the said complaints. Merely because these complaints were not brought to the notice of the petitioner, it cannot be said that the said documents, therefore, are got up documents. Respondent No.3 is an institute which holds cultural events and it has to cater to the needs of the public at large who come to their auditorium to witness the various cultural events. There is no reason why respondent No.3 would have an axe to grind against the petitioner, because, initially for the year 2010-2011, his tender was accepted and even thereafter, the period was extended by one year. It is obvious that when no complaints were received against the petitioner, he was allowed to run the canteen, even without inviting tenders. The submission of the petitioner, therefore, that respondent No.3 had deliberately fabricated the documents is without any substance. 18. There is no allegation of malafide made against any member of the appraisal committee, except making a bald allegation that they have decided arbitrarily to remove the petitioner by not awarding him the contract. Further more, it is to be noted that the complaints were verified by the Vice-President and after the complaints were further verified, they were found to be genuine by an independent witness. 19. Learned Counsel appearing on behalf of respondent No.3 has fairly stated that they have not black-listed the petitioner and it was open for him to again apply whenever fresh tender was invited. The contention of the petitioner that he has been blacklisted, therefore, is without any substance. 20. 19. Learned Counsel appearing on behalf of respondent No.3 has fairly stated that they have not black-listed the petitioner and it was open for him to again apply whenever fresh tender was invited. The contention of the petitioner that he has been blacklisted, therefore, is without any substance. 20. Taking into consideration the facts and more particularly the fact that respondent No.4 has now already given an amount of Rs.96,000/-and he is running the canteen since 8th November, 2012, we do not propose to interfere in the process of awarding the contract in favour of respondent No.4. We are satisfied that the decision taken by respondent No.3 is in public interest and has been taken after taking into consideration various aspects of the case. 21. The writ petition, therefore, accordingly is dismissed. Rule is discharged. There shall be no order as to costs. Financial bid document is returned to respondent No.3.