Judgment Mansoor Ahmad Mir, J. Petitioner has invoked the jurisdiction of this Court by the medium of present writ petition for quashing letter, dated 14th March, 2014, made by the respondent; has sought writ of prohibition restraining the respondent from advertising fresh tenders/bids and to command it to declare the petitioner as L-1 bidder; to issue Letter of Acceptance in favour of the petitioner in terms of the tender notice, which was already issued in respect of the Electro Mechanical Works of Shongtong Karchham Hydroelectric Project and has also prayed for grant of other reliefs, on the grounds taken in the memo of the writ petition. 2. Precisely, the case of the writ petitioner is that the respondent has issued tender notice in August, 2011 for procurement for Plant, Design Supply, Testing, Erection and Commissioning of Electro Mechanical Equipments for the Shongtong-Karchham Hydroelectric Project (Annexure P-3), which was published in newspapers and was also uploaded on the official website of the respondent-Corporation. Four companies, i.e. M/s. Andritz Hydro Private Limited, M/s. BHEL, M/s. Voith Hydro Private Limited and M/s. Alstom India Limited, offered their technical bids in response to the said tender notice, were opened on 16th April, 2012 and after evaluating the same, price bids were opened on 4th January, 2013. The record of price bid opening was prepared by the respondent in terms of ITB 27.11 (Annexure P-4). 3. The petitioner noticed some irregularities apparent in the price bid submitted by M/s. Alstom India Limited, constraining it to file representation on 18th January, 2013 (Annexure P-5), wherein the irregularities were highlighted. Thereafter, it made another representation on 18th February, 2013 (Annexure P-6) that M/s. Alstom India Limited had not adhered to the conditions contained in the tender notice and the petitioner was the lowest bidder. Both the representations were rejected by the respondent vide letter, dated 16th May, 2013 (Annexure P-7). Petitioner replied the said letter (Annexure P-7) vide reply-letter dated 17th May, 2013 (Annexure P-8) bringing into the notice of the respondent the fact that the decision making process of the respondent was illegal and not in accordance with law. 4. Both the representations were rejected by the respondent vide letter, dated 16th May, 2013 (Annexure P-7). Petitioner replied the said letter (Annexure P-7) vide reply-letter dated 17th May, 2013 (Annexure P-8) bringing into the notice of the respondent the fact that the decision making process of the respondent was illegal and not in accordance with law. 4. The petitioner questioned the letter, dated 16th May, 2013, (Annexure P-7) by the medium of CWP No. 3141 of 2013 before this Court and after hearing the parties, the writ petition was allowed vide order, dated 30th May, 2013 (Annexure P-10), pursuant to which the respondent constituted a new Evaluation Committee. The said committee, vide letter dated 20th July, 2013, (Annexure P-11) asked the petitioner to file fresh representation; was made by the petitioner on 27th July, 2013 (Annexure P-12). 5. It is further contended that the petitioner came to know that the new Evaluation Committee, constituted in terms of the Court directions, dated 30th May, 2013, found that M/s. Alstom India Limited and M/s. Voith Hydro Private Limited had not adhered to the stipulated formats, made changes resulting in the price implications and rejected their bids, which was published in the newspaper (Annexure P-13). On 6th September, 2013 (Annexure P-14), the respondent sought extension of bid validity from the petitioner, which was extended by the petitioner on 11th September, 2013 till 31st December, 2013 (Annexure P-15). 6. It is specifically stated that though the petitioner was the lowest bidder and was to be allotted the contract being the lowest bidder, but the respondent failed to do so. After noticing that the respondent had delayed the matter, it made with all exceptions and bona fides at his command the letter, dated 8th November, 2013, (Annexure P-16) without prejudice to its rights and interests, whereby the petitioner had shown its willingness to reduce its price by an amount of INR 11 crores, if necessary and an opportunity is given to execute the contract. 7. The respondent, on 10th December, 2013, requested the petitioner to extend the validity of the bid and bank guarantee up to 31st March, 2014 (Annexure P-17), which was extended by the petitioner on 12th December, 2013 (Annexure P-18). 8. 7. The respondent, on 10th December, 2013, requested the petitioner to extend the validity of the bid and bank guarantee up to 31st March, 2014 (Annexure P-17), which was extended by the petitioner on 12th December, 2013 (Annexure P-18). 8. It is also contended that after performing all these acts, the petitioner was under the bona fide belief, rather had legitimate expectations, that it will be declared as the lowest bidder, though it was and is, and the Letter of Acceptance will be issued in its favour in terms of the tender notice for completion of the said project. 9. The respondent has issued a letter on 14th March, 2014, wherein it annulled the tender process; is impugned in this writ petition, on various grounds taken in the memo of petition. 10. The respondent has filed reply. Virtually, the respondent has accepted the case of the petitioner, but the only objection taken is that the respondent is not in a position to accept the offer of the petitioner because the petitioner had made an offer to reduce its price by an amount of INR 11 crores was not in accordance with the norms, terms and conditions contained in various documents, particularly, the bilateral agreement (Annexure R-1), which was entered into by the respondent for financial cooperation with KfW, Germany Development Bank for an amount of Euro 150 millions. The respondent and KfW have made various inter se communications, which are annexed with the reply. 11. Annexure R-2 contains the guidelines for procurement of supply and work contracts under Financial Cooperation with developing countries. Annexure R-3 contains the minutes in terms of which a new Evaluation Committee was constituted. Annexure R-4 is the recommendation made by the newly constituted Evaluation Committee constituted by the Chief Secretary-cum-Chairman, H.P. Power Corporation Limited. The 42nd meeting of the Board of Directors (BOD) was held on 11th September, 2013 and the Board decided to annul all the price bids and call for fresh price bids from the four technically responsive bidders only, for the said project. The said decision was sent to KfW for granting No Objection vide letter, dated 17th September, 2013 (Annexure R-5). 12. The said decision was sent to KfW for granting No Objection vide letter, dated 17th September, 2013 (Annexure R-5). 12. In response to the said letter (Annexure R-5), the KfW, vide Annexure R-6, asked the respondent to state reasons for annulling the tender and calling for fresh bids, which was responded by the respondent vide letter, dated 22nd October, 2013 (Annexure R- 7), but was not accepted by KfW, as is apparent from Annexure R-8. 13. Thereafter, 43rd BOD meeting was convened, which was held on 6th November, 2013, and keeping in view the CEA's estimate and the KfW's stance, the BOD decided that the respondent may consider the bid offered by the petitioner and obtain No Objection from KfW. In the meantime, a letter (Annexure R-9) was submitted by the petitioner stating therein that he was ready to reduce its price. The decision of the 43rd BOD meeting and the offer of the petitioner qua reduction in the bid price were forwarded to KfW and was requested to grant No Objection. 14. KfW replied to the said letter, vide Annexure R-11, that no alteration can be made between the opening of the bids and the award of the contract and there were no guidelines whereby the price can be reduced and is not permissible. It is apt to reproduce relevant portion of Annexure R-11 herein: “........................... M/s Andritz Hydro Pvt. Ltd. has obviously submitted a technically and financially acceptable bid. Thus, as previously stipulated by KfW in above mentioned email dated 31 October 2013, we would expect that M/s Andritz Hydro Pvt. Ltd. will be invited for negotiations with the goal to award the contract. From your above letter we further understand that M/s Andritz Hydro Pvt. Ltd. with letter dated 8 November 2013 proposed to reduce its price bid of 4,331,072,994 INR by 110,000,000 INR, if provided an opportunity. Kindly note that “negotiations between the contracting agency and a bidder as well as alterations of bids between the opening of the bids and the award of the contract are not admissible” according to KfW's “Guidelines for Procurement of Goods, Works and associated Services in Financial Cooperation with Partner Countries”. Awarding the contract to M/s Andritz Hydro Pvt. Ltd. based on the reduced bid price of 4,221,072,994 INR is therefore not permissible according to KfW's guidelines.” 15. Awarding the contract to M/s Andritz Hydro Pvt. Ltd. based on the reduced bid price of 4,221,072,994 INR is therefore not permissible according to KfW's guidelines.” 15. Again, a communication, dated 9th December, 2013 (Annexure R-12) followed by a reminder, dated 13th January, 2014 (Annexure R-13) was made by the respondent to KfW. KfW made decision, was communicated to the respondent vide letter, dated 20th January, 2014 (Annexure R-14), stating therein that they have not seen any reason to annul the tender based on KfW's guidelines. 16. It is also pleaded that KfW has not granted No Objection for awarding the contract to the petitioner and constrained the respondent to convene its 44th BOD meeting, which was held on 1st February, 2014. Accordingly, BOD, after taking decision, once again made a request to KfW and reiterated its stand, vide letter dated 19th February, 2014 (Annexure R-15). It is profitable to reproduce relevant portion of Annexure R-15 herein: “................... 4. Our Board of Directors after considerable deliberations came to the conclusion that as per the rules under which we are governed, not purchasing from M/s. Andritz Hydro Pvt. Ltd. will leave us with no alternative except to go for fresh open bidding. This may lead to a higher price and also cannot be restricted to the earlier four bidders only. There is also chance of litigation, which may delay the fresh bidding and thereby the project. .....................” 17. But the KfW rejected the request of the respondent vide its letter, dated 21st February, 2014 (Annexure R-16) and again stated that awarding the contract to the petitioner at reduced bid price is not permissible under KfW's guidelines. We deem it proper to mention herein that the KfW in the said letter has admitted that delay was occurring in the project implementation. It is apt to reproduce relevant portion of Annexure R-16 herein: “............... In order to avoid any further delays in project implementation you are kindly requested to present to us a clear way forward on how to overcome the dead-lock which has occurred regarding the E&M tender. With above letter HPPCL had presented the alternative of opting for fresh international competitive bidding in two-envelope post qualification procedure. If this is intended please present to us the basis on which you intend to annul the ongoing tender. ................” 18. With above letter HPPCL had presented the alternative of opting for fresh international competitive bidding in two-envelope post qualification procedure. If this is intended please present to us the basis on which you intend to annul the ongoing tender. ................” 18. Thereafter, the respondent made a request to the KfW for permitting it to annul the bidding process and to start the bidding process afresh, vide letter dated 24th February, 2014 (Annexure R-17) It is apt to reproduce relevant portion of Annexure R-17 herein: “................. 2. We thank you for your letter dated 21.02.2014 received through fax on 24.02.2014, wherein you have stated that awarding the contract to M/s Andritz Hydro Pvt. Ltd. at the reduced bid price of 4,221,072,994 INR is not permissible. 3. In view of the above, H.P.P.C.L. Is left with no alternative but to go for fresh open bidding which may lead to higher price and which cannot be restricted to earlier four bidders only. 4. As per “Instruction to Bidders (I.T.B.)”, Clause No. 41.1, H.P.P.C.L. has right to annul the bidding process at any time. Therefore, H.P.P.C.L. Proposes to annul the entire bidding process and re-conduct the entire tendering process i.e. inviting the Technical and Financial bids afresh, as per KfW's Single Stage Two Envelope post qualification procedure under International Competitive Bidding due to the following reasons: i) As per Indian practice of award of works, it is not possible to award E&M package of Shongtong Karchham to next higher bidder (L-2) at their original bid price which will cause a direct loss to state exchequer by INR 110,000,000 and loss to the organization. It would also be objectionable. .....................” 19. The KfW granted its No Objection on 10th March, 2014 vide communication, dated 10th March, 2014 (Annexure R-18) with some stipulations. It is apt to reproduce relevant portion of Annexure R-18 herein: “.............. We thank you for your letter dated 24th February 2014 in which you had asked for KfW's no objection to annul the above mentioned E&M tender based on clause no. 41.1 in the “Instructions to Bidders (I.T.B.)” and go for fresh tender as per single stage two envelope post qualification procedure under international competitive bidding. The requested no objection is provided by KfW herewith. 41.1 in the “Instructions to Bidders (I.T.B.)” and go for fresh tender as per single stage two envelope post qualification procedure under international competitive bidding. The requested no objection is provided by KfW herewith. As a next step you are kindly requested to send us the complete and modified tender documents for the E & M re-tender for our review and no objection. Furthermore, please also supply us with the completed KfW checklist on tendering of supplies and services which was provided to HPPCL through email by Dr. Thilo Heiberger on 27th February 2014. .............................” 20. While going through the pleadings of the parties and the documents placed on the file, it is apparent that a dispute arose right from opening of the technical bids and the price bids about the ranking of the company, namely Alstom India Limited, constraining the petitioner to make representation; was rejected; petitioner approached this Court and the Court, in its order, dated 30th May, 2013, in terms of the statements/consent of the learned counsel for the parties, directed the constitution of a new Evaluation Committee, which had to take the process forward. The parties have not questioned the said decision, has attained finality, which is suggestive of the fact that this Court has asked the newly constituted committee to conclude the process, as early as possible, from that stage. The committee accepted the representations of the writ petitioner and rejected the bids of the two companies (Annexure P-13). 21. It appears that this order has a logic behind it. In our considered view, the logic is that the public should not suffer; the contract should be awarded as early as possible, so that the project could be taken to its logical end and may not suffer due to the price escalation and delay. 22. In Annexure R-8, the KfW has admitted that the petitioner is figuring as L-1 bidder and has directed the respondent to invite the petitioner for negotiations to award contract. It is apt to reproduce relevant portion of Annexure R-8 herein: “........................ 2. Annul the entire bidding process as per I.T.B. Clause 41.1 and Item No. 10 of Invitation for Bids. In Annexure R-8, the KfW has admitted that the petitioner is figuring as L-1 bidder and has directed the respondent to invite the petitioner for negotiations to award contract. It is apt to reproduce relevant portion of Annexure R-8 herein: “........................ 2. Annul the entire bidding process as per I.T.B. Clause 41.1 and Item No. 10 of Invitation for Bids. As stated in the evaluation report dated 17th September 2013 (sent with letter No. HPPCL/EC/E&M/STK HEP/Vol-VIII/2013-823-page 28 of 33), according to “terms of ITB Clause 32, M/s. Alstom India Ltd. and M/s Voith Private Ltd. are not substantially responsive to the requirement of the Bidding Documents”. Furthermore in the meantime M/s Alstom India Limited has declined to extend the validity of its bid and the bid security. In our view this situation results in the following ranking of the remaining bidders: L1 – M/s Andritz Hydro Pvt. Ltd. L2 – M/s BHEL As M/s Andritz Hydro Pvt. Ltd. has obviously submitted a technically and financially acceptable bid we would expect that M/s Andritz Hydro Pvt. Ltd. will be invited for negotiations with the goal to award the contract. ..........................” 23. The General Manager (Electrical) of the respondent- Corporation has made a communication with KfW, dated 20th November, 2013 (Annexure R-10), wherein it is admitted that fresh tenders may lead to heavy price apart from causing delay. It is apt to reproduce relevant portion of said communication herein: “Keeping in view the CEA's estimate, the bids received are very much on the lower side and inviting fresh bids may lead to higher price apart from causing delays. Keeping in view the above and also KfW's stance, the Board decided to consider the bid of M/s Andritz Hydro Pvt. Ltd. The Board decided that the HPPCL may consider their offer and obtain NOC from KfW. Keeping in view, the latest development, as explained above, considering the decision of BOD and if the latest offer of M/s Andritz Hydro Pvt. Ltd. is to be considered then as per new ranking M/s Andritz Hydro Pvt. Ltd. evaluated bid price will be reduced from Rs.433.11 crore to Rs.422.11 crore which is 28.8% less than estimate cost. HPPCL Board decided to consider the bid of M/s Andritz Hydro Pvt. Ltd. “The board decided that the HPPCL may consider their offer and obtain N.O.C. From KfW”. HPPCL Board decided to consider the bid of M/s Andritz Hydro Pvt. Ltd. “The board decided that the HPPCL may consider their offer and obtain N.O.C. From KfW”. Accordingly you are requested to kindly accord your No-Objection to the New Ranking as per updated Appendix 6 (Part-1) and Appendix (Part-2) (Enclosed) of Financial Bid Evaluation Report, so that further necessary action can be taken accordingly.” 24. It can be safely concluded that the petitioner is being dragged from pillar to post because of procedural niceties and other technicalities. It appears that had the respondent evaluated the technical bid and the price bid of the other two companies properly at the relevant point of time, the petitioner would have got the allotment; would have by now concluded the contract. The grievances of the petitioner virtually being accepted by the Evaluation Committee, failed to redress the same for the reasons given hereinabove, resulting in considerable delay in the execution of the contract, which is at the cost of public exchequer and against the public interest. The process of decision-making is also not in accordance with law and the guidelines/norms governing the field. 25. The question is – whether the petitioner can invoke the jurisdiction of this Court in view of the given facts and circumstances and pray for reliefs sought? The pleadings of the parties are suggestive of the fact that it needs intervention of the Court so that the interest of the public is safeguarded and the project is concluded without any further delay and escalation of price, which will be at the cost of public exchequer. 26. The Apex Court in a case titled as Food Corporation of India versus M/s Kamdhenu Cattle Feed Industries, reported in (1993) 1 Supreme Court Cases 71, has laid down the guidelines where the Court can intervene. It is apt to reproduce paras 7 and 8 of the judgment herein: “7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review. 8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not y itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of la and operates in our legal system in this manner and to this extent.” 27. KfW has also made various communications with the respondent contained in Annexures R-11 to R-17. The doctrine of legitimate expectation gets assimilated in the rule of la and operates in our legal system in this manner and to this extent.” 27. KfW has also made various communications with the respondent contained in Annexures R-11 to R-17. While going through all these documents, one comes to an inescapable conclusion that the petitioner is suffering because of its own offer whereby it has offered to reduce its price bid in order to avoid further delay and to get allotment of the contract as is evident from Annexure R-16. 28. It is the duty of the Court, particularly of the Constitutional Court, which is exercising powers under Article 226 of the Constitution of India, to protect and safeguard the public interests. The Courts should not succumb to the niceties of procedure, hypertechnicalities and other issues, that too, at the cost of delay, public interest and public exchequer. The Courts have to step in and make provisions enabling the public in general to reap the fruits of the policies and decisions which are made by the State. 29. If the impugned letter is not quashed, that will cause considerable delay, fresh tender process is to be undertaken, tenders are to be invited, technical bids and price bids are to be opened and it cannot be ruled out whether there would be further litigation. 30. The Apex Court in a case titled W.B. State Electricity Board versus Patel Engineering Co. Ltd. and others, reported in (2001) 2 Supreme Court Cases 451, held that it is always open for the appellant-Board to negotiate with the next lowest bidder for awarding the contract on economically viable bid. It is profitable to reproduce paras 31 and 33 of the judgment herein: “31. The submission that remains to be considered is that as the price bid of respondent Nos. 1 to 4 is lesser by 40 crores and 80 crores than that of respondent Nos. 11 and 10 respectively, public interest demands that the bid of respondent Nos. 1 to 4 should be considered. The project undertaken by the appellant is undoubtedly for the benefit of public. The mode of execution of the work of the project should also ensure that the public interest is best served. Tenders are invited on the basis of competitive bidding for execution of work of the project as it serves dual purposes. 1 to 4 should be considered. The project undertaken by the appellant is undoubtedly for the benefit of public. The mode of execution of the work of the project should also ensure that the public interest is best served. Tenders are invited on the basis of competitive bidding for execution of work of the project as it serves dual purposes. On the one hand it offers a fair opportunity to all those who are interested in competing for the contract relating to execution of the work and on the other hand it affords the appellant a choice to select the best of the competitors on competitive price without prejudice to the quality of the work. Above all it eliminates favouritism and discrimination in awarding public works to contractors. The contract is therefore, awarded normally to the lowest tenderer which is in public interest. The principle of awarding contract to the lowest tenderer applies when all things are equal. It is equally in public interest to adhere to the rules and conditions subject to which bids are invited. Merely because a bid is the lowest the requirements of compliance of rules and conditions cannot be ignored. It is obvious that the bid of respondent Nos. 1 to 4 is the lowest of bids offered. As the bid documents of respondent Nos. 1 to 4 stands without correction there will be inherent inconsistency between the particulars given in the annexure and the total bid amount, it cannot be directed to be considered along with other bid on the sole ground of being the lowest. 32. .......................... 33. We may, however, clarify that the appellant is not obliged to award contract to any of bidders at their quoted price bid. It is always open to the appellant to negotiate with the next lowest bidder for awarding the contract on economically viable price bid.” 31. The same directions have been laid down by the Apex Court in Tata Cellular versus Union of India, reported in (1994) 6 Supreme Court Cases 651. It is apt to reproduce paras 70, 71 and 74 of the judgment herein: “70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justifiable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 72. ................ 73. ................ 74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.” 32. The Apex Court in the case titled as Asia Foundation & Construction Ltd. versus Trafalgar House Construction (I) Ltd. and others, reported in (1997) 1 Supreme Court Cases 738, has held that the Court should intervene in the given facts of a particular case. It is apt to reproduce para 11 of the judgment herein: “11. This being the position, in our considered opinion, the High court was not justified in interfering with the award by going into different clauses of the bid document and then coming to the conclusion that the terms provided for modifications or corrections even after a specified date and further coming to the conclusion that respondent 1 being the lowest bidder there was no reason for the Port Trust to award the contract in favour of the appellant. We cannot lose sight of the fact of escalation of cost in such project on account of delay and the time involved and further in a coordinated project like this, if one component is not worked out the entire project gets delayed and the enormous cost on that score if rebidding is done. The High court has totally lost sight of this fact while directing the rebidding. In our considered opinion, the direction of rebidding in the facts and circumstances of the present case instead of being in the public interest would be grossly detrimental to the public interest.” 33. The Apex Court in a latest judgment rendered in the case titled as Maa Binda Express Carrier and another versus North- East Frontier Railway and others, reported in (2014) 3 Supreme Court Cases 760, held that the tenderer has an enforceable right in the court which is competent to examine whether the aggrieved party has been treated unfairly or discriminated. It is apt to reproduce paras 9 to 11 of the judgment herein: “9. Suffice it to say that in the matter of award of contracts the Government and its agencies have to act reasonably and fairly at all points of time. To that extent the tenderer has an enforceable right in the Court who is competent to examine whether the aggrieved party has been treated unfairly or discriminated against to the detriment of public interest. (See: Meerut Development Authority v. Association of Management Studies and Anr. etc. (2009) 6 SCC 171 and Air India Ltd. v. Cochin International Airport Ltd. (2000) 1 SCR 505). 10. The scope of judicial review in contractual matters was further examined by this Court in Tata Cellular v. Union of India (1994) 6 SCC 651 , Raunaq International Ltd.'s case (supra) and in Jagdish Mandal v. State of Orissa and Ors. (2007) 14 SCC 517 besides several other decisions to which we need not refer. 11. In Michigan Rubber (India) Ltd. v. State of Karnataka and Ors. (2012) 8 SCC 216 the legal position on the subject was summed up after a comprehensive review and principles of law applicable to the process for judicial review identified in the following words: (SCC p. 229, paras 23-24) “23. 11. In Michigan Rubber (India) Ltd. v. State of Karnataka and Ors. (2012) 8 SCC 216 the legal position on the subject was summed up after a comprehensive review and principles of law applicable to the process for judicial review identified in the following words: (SCC p. 229, paras 23-24) “23. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and nonarbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government. 24. 24. Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; and (ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226.” 34. The Apex Court in another latest judgment in the case titled as M/s. Siemens Aktiengeselischaft & S. Ltd. versus DMRC Ltd. & Ors., reported in 2014 AIR SCW 1249, has held that the Court has powers to examine the illegality and the irregularities of the process relating to contract and the Court can examine whether the decision making process was fair, reasonable and transparent. It is apt to reproduce para 22 of the judgment herein: “22. There is no gainsaying that in any challenge to the award of contact before the High Court and so also before this Court what is to be examined is the legality and regularity of the process leading to award of contract. What the Court has to constantly keep in mind is that it does not sit in appeal over the soundness of the decision. The Court can only examine whether the decision making process was fair, reasonable and transparent. In cases involving award of contracts, the Court ought to exercise judicial restraint where the decision is bonafide with no perceptible injury to public interest.” 35. It appears that the respondent and KfW, the lending agency, have specifically written in all these inter se communications that re-tendering will cause delay and the cost of the contract will be increased in view of the price escalation but have landed in vacuum due to the procedural wrangles and tangles read with the guidelines governing the field, as discussed hereinabove. 36. The Writ Court, while exercising powers under Article 226 of the Constitution, has wide powers and can reach injustice wherever found. 36. The Writ Court, while exercising powers under Article 226 of the Constitution, has wide powers and can reach injustice wherever found. It is apt to reproduce paras 14 and 18 of the judgment rendered by the Apex Court in the case titled as Bangalore Development Authority versus M/s. Vijaya Leasing Ltd. & Anr., reported in 2013 AIR SCW 3463, herein: “14. To appreciate the legal position we only wish to refer to two of the decisions of this Court reported in Dwarakanath v. Income Tax Officer -1965 (2) SCJ 296 and Gujarat Steel Tubes Ltd & Ors. v. Gujarat Steel Tubes Mazdoor Sabha & Ors. - 1980 (2) SCC 593 . In Dwarakanath case the Supreme Court stated as under: “This article is couched incomprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression 'nature', for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the Article itself.” (Emphasis added) 15 ....................... 16. ....................... 17. ....................... 18. Therefore, while exercising the extraordinary jurisdiction under Article 226 of the Constitution, the learned Single Judge came across the above incongruities in the proceedings of the Hon'ble Minister which resulted in the issuance of de-notification dated 05.10.1999. Such a construction defeats the purpose of the Article itself.” (Emphasis added) 15 ....................... 16. ....................... 17. ....................... 18. Therefore, while exercising the extraordinary jurisdiction under Article 226 of the Constitution, the learned Single Judge came across the above incongruities in the proceedings of the Hon'ble Minister which resulted in the issuance of de-notification dated 05.10.1999. We fail to note as to how the ultimate order of the learned Single Judge in setting aside such a patent illegality can be held to be beyond the powers vested in the Constitutional Court. The conclusion of this Court in Gujarat Steel Tubes Case (supra) that judicial daring is not daunted when glaring injustice demands even affirmative action and that authorities exercising their powers should not exceed the statutory jurisdiction and correctly administer the law laid down by the statute under which they act are all principles which are to be scrupulously followed and when a transgression of their limits is brought to the notice of the Court in the course of exercise of its powers under Article 226 of the Constitution, it cannot be held that interference in such an extraordinary situation to set right an illegality was unwarranted.” 37. Keeping the fact in view that the petitioner is caught in a vacuum in view of the guidelines of the KfW and the recommendations made by the respondents, it is a fit case where the High Court should exercise powers under Article 226 of the Constitution of India. It is apt to reproduce para 22 of the judgment rendered by this Court in the case titled as Pravasi Bhalai Sangathan versus Union of India and others, reported in 2014 AIR SCW 1713, herein: “22. Be that as it may, this Court has consistently clarified that the directions have been issued by the Court only when there has been a total vacuum in law, i.e. complete absence of active law to provide for the effective enforcement of a basic human right. In case there is inaction on the part of the executive for whatsoever reason, the court has stepped in, in exercise of its constitutional obligations to enforce the law. In case of vacuum of legal regime to deal with a particular situation the court may issue guidelines to provide absolution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field. In case of vacuum of legal regime to deal with a particular situation the court may issue guidelines to provide absolution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field. Thus, direction can be issued only in a situation where the will of the elected legislature has not yet been expressed.” 38. Having said so and applying the tests laid down by the Apex Court, we are of the considered view that it is a fit case where the Court has to intervene, quash the impugned letter and direct the respondent to consider to award the contract to the petitioner as per the price bid. 39. As stated hereinabove, the petitioner has made an offer to the respondent to reduce the bid amount, meaning thereby, it was ready to reduce the profit, which is not in accordance with the KfW guidelines and the other Rules as stated/pleaded by the KfW. In the given circumstances, this Court has to intervene and pass appropriate direction(s). 40. Having glance of the above discussions, we deem it proper to direct the petitioner to utilize the said amount for the welfare of the employees of the project and the inhabitants of the area, i.e., the said amount is to be utilized for the purpose of raising infrastructure/residential accommodation, school and hospital in order to make the project grow. 41. The writ petition is allowed, as indicated hereinabove alongwith all pending applications.