JUDGMENT AND ORDER : 1. Heard Shri M. Devananda, the learned counsel appearing for the petitioner; Shri R.K. Umakanta, the learned Addl. Government Advocate appearing for the State respondent and Shri Ng. Somorjit, learned counsel appearing for the Private respondent. 2. The instant writ petition has been filed by the petitioner praying for issuing a direction to the respondents for grant of approval, for disposal of condemned vehicles, in favour of the petitioner and also for quashing the opinion of the Finance Department as quoted in the petition. 3. According to the petitioner, in response to an Auction Notice dated 07-09-2013 inviting tender from intending parties for the auction of 226 (two hundred and twenty six) number of condemned vehicles of the Police Department, Manipur issued by the Director General of Police, Manipur, he being an intending bidder submitted his Sealed Tender to the Superintendent of Police (CMTW) along with the security amount. On 03- 10-2013 the Tender Opening Committee opened the tenders and thereafter, submitted its proceedings dated 10-10-2013 recommending the name of Shri Hijam Pakasana Singh as the highest bidder and the petitioner, the 2nd highest bidder. As Shri Hijam Pakasana Singh could not deposit the remaining amount on account of his unavoidable circumstances, he informed the Inspector General of Police (Admn.) vide his letter dated 11-11-2013 that he had no objection to the bid of a lower bidder being accepted by the State respondents. Accordingly, the Inspector General of Police (Admn.), Government of Manipur addressed a letter dated 30-06-2014 to the Principal Secretary (Home), Government of Manipur requesting him to approve the proceedings of the Tender Opening Committee as well as the bid of the petitioner after the deposit of the required amount and completion of the formalities. Even after a lapse of about three months, the respondent No.1 failed to approve the proceedings which compelled the petitioner to send a legal notice dated 29-09-2014 through his counsel and thereafter, the Joint Secretary (Home), Government of Manipur addressed a letter dated 29-09-2014 to the Director General Police, Manipur incorporating therein the advice of the Finance Department. Being aggrieved by the said inaction on the part of the respondents, the instant writ petition has been filed by the petitioner on 13-10-2014. 4. Being aggrieved by the said inaction on the part of the respondents, the instant writ petition has been filed by the petitioner on 13-10-2014. 4. The stand of the Administrative Department namely the Home Department as indicated and reflected in its affidavit-in-opposition is that on receipt of the letter dated 10-10-2013 enclosing therewith the proceedings, the matter was referred to Finance Department which gave its opinion stating that two criterions-one, furnishing of bank guarantee for the full value and two, proof of financial capability of not less than Rs.5 lakhs were never included in the terms and conditions of the Auction Notice and therefore, the bidders who have been excluded, ought to be considered and to obviate any scope of collusion, the Private respondent must be asked to fulfil the two conditions and also to give a counter offer to match upto the rate quoted by the highest bidder. It is further stated in their affidavit that when the matter was again referred to the Finance Department, it gave its view to the effect that on re-examination, the Finance Department did not agree with the proposal of the Administrative Department which was accordingly advised to float fresh tender and that the matter was being processed by the Home Department for taking final decision. The Private respondent has filed an affidavit-in-opposition on 17-02-2015, followed by an additional affidavit dated 04-05-2015, wherein it is stated that the Tender Opening Committee rejected his bid on the basis of a Corrigendum dated 28-09-2013 which was not made known to him because it was published in a newspaper which is not circulated in all the districts and therefore, no enough opportunity was granted to him to fulfil the criteria mentioned in the Corrigendum because of the dates, i.e., 29-09-2013, 30-09-2013 and 02-10-2013 being holidays. 5. It has been contended by Shri M. Devananda, the learned counsel appearing for the petitioner that the Finance Department has no authority to interfere with the process of tender after the tender being opened on 03-10-2013 and the names of qualified bidders being declared and moreover, the process of tender was initiated only after complying with the guidelines as prescribed in the Notification dated 13-12-1996 issued by the Finance Department. In order to substantiate his contention, he has relied upon the decisions rendered by the Hon’ble Supreme Court in the cases of Burn Standard Company Limited Vs. McDermott International INC. In order to substantiate his contention, he has relied upon the decisions rendered by the Hon’ble Supreme Court in the cases of Burn Standard Company Limited Vs. McDermott International INC. & anr. reported in (1991) 2 SCC 669 ; Tejaj Construction and Infrastructure Private Limited Vs. Municipal Council, Sendhwa & anr., reported in (2012) 6 SCC 464 ; Michigan Rubber (India) Limited Vs. State of Karnataka & ors., reported (2012) 8 SCC 216 ; Union of India & ors. Vs. Dinesh Prasad, reported in (2012) 12 SCC 63 . On the other hand, Shri R.K. Umakanta, the learned Government Advocate has submitted that there was nothing wrong in consultation with the Finance Department and even though the petitioner was found to be the 2nd highest bidder, he has no enforceable right and he cannot claim that his bid ought to be accepted by the State respondents. He has placed reliance on the decisions rendered by High Court of Orissa in Executive Engineer, Sundargarh, R & B Division Vs. Mohan Prasad Sahu, reported in AIR 1990 Orissa 26 and also the decision rendered by the Hon’ble Supreme Court in Michigan Rubber (India) Limited case (supra). Shri Ng. Somorjit, the learned counsel appearing for the Private respondent has submitted that after the Corrigendum dated 28-09-2013 being published in the newspaper, no enough opportunity was granted to him to fulfil the criteria mentioned therein and only with the interference of the Finance Department, his name was recommended by the Tender Opening Committee. He has relied upon the decisions rendered by the Hon’ble Supreme Court in State of Haryana & ors. Vs. Ram Kumar Mann, reported in (1997) 3 SCC 321 and decisions rendered the Gauhati High Court in Shri Radhey Shyam Mandal Vs. Food Corporation of India & 2 ors., reported in 1995 (2) GLT 67 and M/S Bengal Tea Fabrics Ltd Vs. Assistant Commissioner of Taxes, Silchar, reported in 1997 (2) GLT 30. 6. In matters relating to award of contracts having commercial element, the scope of judicial review is very limited and the Hon’ble Supreme Court in a catena of decisions has settled the law in this regard. It is not necessary for this court to burden itself in referring to those decisions and suffice it to say that in Michigan Rubber (India) Limited Vs. It is not necessary for this court to burden itself in referring to those decisions and suffice it to say that in Michigan Rubber (India) Limited Vs. State of Karnataka & ors., reported in (2012) 8 SCC 216 , the Hon’ble Supreme Court, after examining the various decisions, has summarised the principles as under: “23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness 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 the 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 the 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 a 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 the negative, then there should be no interference under Article 226.” In Maa Binda Express Carrier & anr. Vs. North-East Frontier Railway & ors., reported in (2014) 3 SCC 760 , the Hon’ble Supreme Court reiterated the said principles and held: “8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and nondiscriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process. 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 which 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. Assn. of Management Studies and Air India Ltd. v. Cochin International Airport Ltd.” 7.1. The undisputed facts, borne out from the materials on record, are that the petitioner is a contractor by profession as well as a registered Special Class Contractor of the Manipur Police Housing Corporation. The Director General of Police, Manipur issued an Auction Notice dated 07-09-2013 inviting tender from intending parties for the auction of 226 (two hundred and twenty six) number of condemned vehicles of the Police Department, Manipur and accordingly, issued an order dated 07-09-2013 constituting the Tender Opening Committee consisting of officers mentioned therein, which shall assemble in the campus of the Central Motor Transport Workshop, Imphal on 03-10-2013 for the auction sale of 226 number of condemned vehicles. On the same day, the Inspector General of Police (Admn.) on behalf of the Director General of Police, Manipur issued the terms and conditions which shall govern the auction. However, few days later and on 28-09-2013, the Director General of Police, Manipur issued a Corrigendum adding more conditions to the said terms and conditions-the auction be conducted in lots of more than 10 (ten) vehicles each and the bidders shall show minimum financial proof of Rs.5 lakhs and the bid value will be covered by full bank guarantees. The said Corrigendum was published in the local newspaper on 28-09-2013 itself. The petitioner being an intending bidder, submitted his Sealed Tender to the Superintendent of Police (CMTW) along with his bid amount of Rs.50 lakhs by depositing the security money equivalent to 5% of the bid i.e., Rs.2,50,000/- in the form of Bank Draft which was drawn in favour of the Director General of Police, Manipur. The petitioner being an intending bidder, submitted his Sealed Tender to the Superintendent of Police (CMTW) along with his bid amount of Rs.50 lakhs by depositing the security money equivalent to 5% of the bid i.e., Rs.2,50,000/- in the form of Bank Draft which was drawn in favour of the Director General of Police, Manipur. On 03-10-2013, the Tender Opening Committee met in the Office of the Superintendent of Police (MT) and opened the tenders recommending the name of Shri Hijam Pakasana Singh as the highest bidder and submitted its proceedings for approval by the concerned authority but Shri Hijam Pakasana Singh submitted a representation dated 11-11-2013 to the Inspector General of Police (Admn.) informing that he could not deposit the remaining amount on account of unavoidable circumstances and that he had no objection to the bid of a bidder lower than him being accepted by the State respondents. Accordingly, the Inspector General of Police (Admn.), Government of Manipur addressed a letter dated 30-06-2014 to the Principal Secretary (Home), Government of Manipur requesting him to approve the proceedings of the Tender Opening Committee and also to consider the proposal for disposal of the vehicles by the petitioner after deposit of the required amount and completion of the formalities. Even after a lapse of about three months, the respondent No.1 failed to approve the proceedings which compelled the petitioner to send a legal notice dated 29-09-2014 through his counsel. Contrary to the terms and conditions stipulated in the said Corrigendum, the Joint Secretary (Home), Government of Manipur addressed a letter dated 29-09-2014 to the Director General Police, Manipur incorporating therein the advice of the Finance Department, with the request to take necessary action on the matter as advised by the Finance Department. 7.2. Being aggrieved by the said inaction on the part of the respondents, the instant writ petition being W.P. (C) No. 802 of 2014 was filed by the petitioner on 13-10-2014 and notices thereof were issued on 16-10-2014 by this court. 7.2. Being aggrieved by the said inaction on the part of the respondents, the instant writ petition being W.P. (C) No. 802 of 2014 was filed by the petitioner on 13-10-2014 and notices thereof were issued on 16-10-2014 by this court. An affidavit-in-opposition on behalf of the State respondents therein was filed wherein it is stated that on receipt of the letter dated 10-10-2013, the matter was referred to Finance Department which gave its opinion stating that two criterions-one, furnishing of bank guarantee for the full value; and two, proof of financial capability of not less than Rs.5 lakhs were never included in the terms and conditions of the Auction Notice and therefore, the bidders who have been excluded, ought to be considered and to obviate any scope of collusion, the Private respondent must be asked to fulfil the two conditions and to give a counter offer to match upto the rate quoted by the highest bidder. It is further stated that the matter was again referred to the Finance Department which gave its view to the effect that on re-examination, the Finance Department did not agree with the proposal of the Administrative Department namely Home Department which was advised to float fresh tender and accordingly, the matter was being processed by the Home Department for taking final decision. In reply thereto, it has been stated by the petitioner that the Finance Department has no authority to take a decision and to advise the Home Department to float a fresh tender and moreover, the advice was contrary to the terms and conditions mentioned in the Corrigendum. 7.3. On an application being M.C.(W.P.(C)) No.266 of 2014 filed by Shri Wangkhem Sanjitkumar Singh for impleading himself as a respondent in the writ petition, this court passed an order dated 19-01- 2015 allowing the same and directed that he be impleaded as respondent No.3, the private respondent. 7.3. On an application being M.C.(W.P.(C)) No.266 of 2014 filed by Shri Wangkhem Sanjitkumar Singh for impleading himself as a respondent in the writ petition, this court passed an order dated 19-01- 2015 allowing the same and directed that he be impleaded as respondent No.3, the private respondent. After the Private respondent being impleaded in the matter, he filed an affidavit-in-opposition on 17-02-2015, followed by an additional affidavit dated 04-05-2015, wherein it is stated that the Tender Opening Committee rejected his bid on the basis of a Corrigendum dated 28-09-2013 which was not made known to him because it was published in a newspaper which is not circulated in all the districts and even assuming that it was published, no enough opportunity was granted to him to fulfil the criteria mentioned in the Corrigendum because of the dates, i.e., 29-09-2013, 30-09-2013 and 02-10-2013 being holidays. The factum of publishing the said Corrigendum in the newspaper has been stated and affirmed in the affidavit filed by the respondent No.2 on 01-04-2015. On an application being M.C.(W.P.(C)) No.184 of 2015 filed by the petitioner, this court passed an order dated 12-08-2015 directing that the Commissioner / Secretary (Finance), Government of Manipur be impleaded as respondent No.4 and despite opportunity being given to it, no affidavit-in-opposition has been filed by it. After the Finance Department having been impleaded as respondent No.4, the petitioner moved an application being M.C.(W.P.(C)) No.251 of 2015 praying for permission to amend the petition and after hearing the learned counsels appearing for the parties, this court allowed the application and directed the petitioner to file a recast petition which he did it on 27-11-2015. 7.4. On 27-06-2016, the Private respondent filed an additional affidavit wherein it is stated that on his persuasion that no opportunity was given to him after the Corrigendum was published and since he came to know about it on 01-10-2013, he could not fulfil the conditions and on the basis of the observation of the Finance Department, the Tender Opening Committee held its special meeting on 17-04-2015 after receiving the documents from him and submitted its proceedings on the next day to the Director General of Police, Manipur, stating that he had fulfilled two conditions suggested by the Finance Department who, in turn, requested the Principal Secretary(Home) vide its letter dated 28-04-2015 for grant of administrative approval. In reply to this affidavit, the petitioner has filed an additional affidavit wherein it is stated that since the Private respondent had already submitted an application for refund of EMD and the fact that the Tender Opening Committee had submitted its proceedings on 03-10- 2013, the letters dated 18-04-2015 and dated 02-06-2015 were issued without application of mind. In his rejoinder, the Private respondent has stated that after the retirement of the former Chairman, the new Tender Opening Committee examined the matter and the Chairman, on the same day, sent a letter to him to furnish the counter offer to match upto the rate quoted by the highest bidder to which he replied that he be permitted with the rate quoted by him and accordingly, his bid was accepted by the Committee. 8. It is seen that both the learned counsels appearing for the petitioner and the learned Government Advocate have relied upon the same decision rendered by the Hon’ble Supreme Court in Michigan Rubber (India) Limited case (supra) wherein the Hon’ble Supreme Court has inter-alia held that the basic requirement of Article 14 is fairness in action by the State and non-arbitrariness 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. Other decisions relied upon by the learned counsels appearing for the parties which have no much relevance as regards the issue involved herein, are not being referred to herein. Therefore, the short question that arise for consideration by this court is as to whether the actions of the State respondents commencing from the day on which the Finance Department has given its opinion till when the bid of the Private respondent is accepted by the Committee and is sent for approval by the State respondents, are reasonable so as to bring them within the ambit of Article 14 of the Constitution. 9. 9. From the undisputed facts as narrated herein above, it is evident that as per the proceedings dated 10-10-2013 of the Tender Opening Committee, the bid of the Private respondent was found to be invalid for the reason that it did not fulfil the criteria mentioned in the Corrigendum. When the proceedings were submitted to the Administrative Department for approval, it referred the same to the Finance Department for opinion and the Finance Department gave its opinion stating that two criterions-one, furnishing of bank guarantee for the full value and two, proof of financial capability of not less than Rs.5 lakhs were never included in the terms and conditions of the Auction Notice and therefore, the bidders who have been excluded, ought to be considered and to obviate any scope of collusion, the Private respondent must be asked to fulfil the two conditions and to give a counter offer to match upto the rate quoted by the highest bidder. On the one hand, the Finance Department observed that the said two criterions did form not part of the terms and conditions as stipulated in the auction notice and on the other hand, it advised the Administrative Department to ask the Private respondent to fulfil the said criterions. This very opinion of the Finance Department is the genesis or the root cause for the present controversy. Admittedly, the Private respondent was not aggrieved by the said Corrigendum inasmuch as he did not raise any objection when the tenders were opened on 03-10- 2013 in his presence, although he came to know about it on 01-10-2013 as stated in his additional affidavit dated 27-06-2016 nor did he challenge the validity and correctness of it. Moreover, instead of questioning the Corrigendum, he submitted his application praying for refund of his EMD. Thus, the observations made by the Finance Department in its opinion, are contrary to the terms and conditions prescribed in the Auction Notice and in particular, in the Corrigendum. It is bad in law. The Finance Department ought not to have advised to change the terms and conditions after the tenders being opened by the Tender Opening Committee. The Corrigendum was issued by none other than the Director General of Police, Manipur who has issued the Auction Notice. It is bad in law. The Finance Department ought not to have advised to change the terms and conditions after the tenders being opened by the Tender Opening Committee. The Corrigendum was issued by none other than the Director General of Police, Manipur who has issued the Auction Notice. There is no material on record to show that the Director General of Police, Manipur was not authorised to issue the said Corrigendum nor has any action been taken against him for having issued the Corrigendum. When its opinion was sought for the second time, the Finance Department opined that it did not accept the proposal of the Administrative Department with the instruction that a fresh tender be floated. In fact, a fresh tender ought to have been the best option when the Finance Department refused to grant approval in respect of the bid of the petitioner. It appears that without the proceedings dated 10-10-2013 being cancelled, the Tender Opening Committee was reconstituted pursuant to a letter dated 30-03-2015 of the Director General Police, Manipur and thereafter, a letter was addressed to the Private respondent by the Chairman, reconstituted Tender Opening Committee asking him to fulfil the conditions as advised by the Finance Department. It further appears that the Private respondent made himself having fulfilled the two criterions except the one as regards the counter offer to match upto the rate quoted by the highest bidder. After the receipt of the papers / documents from the Private respondent vide his letter dated 16-04-2015, the Tender Opening Committee, in its meeting held on 17-04-2015, considered only his bid and approved the rate quoted by him and thereafter, the proceedings were submitted to the Director General of Police, Manipur for necessary action. The Director General of Police vide its letter dated 29-04-2015 requested the Principal Secretary (Home) to move the State Government for grant of administrative approval. It is quite evident from the aforesaid events that the actions taken by the State respondents are only to ensure that the bid of the Private respondent is accepted by them keeping in mind his bid amount which is little more higher than that of the petitioner. It is quite evident from the aforesaid events that the actions taken by the State respondents are only to ensure that the bid of the Private respondent is accepted by them keeping in mind his bid amount which is little more higher than that of the petitioner. It may be noted that the petitioner was not aware of the second meeting being held by the reconstituted Tender Opening Committee and it was held in the back of the petitioner and that too, to consider the bid of the Private respondent only. The manner in which the actions have been taken by the State respondents is highly unreasonable and unfair. It is true that although the petitioner is the 2nd highest bidder, he has no enforceable right but equal treatment and equal opportunity ought to have been given to him as had been given to the Private respondent. The petitioner being the 2nd highest bidder became the highest bidder after the highest bidder having withdrawn his tender, ought to have been given an opportunity to offer a bid to match upto the rate quoted by the Private respondent but the State respondents have failed to do that. The actions of the State respondents are contrary to the law laid down in Maa Binda Express Carrier case (supra) wherein the Hon’ble Supreme Court has inter-alia held that all that participating bidders are entitled to, is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. Probably, in terms of the orders passed by this court, from time to time, the Inspector General of Police (Admn.) addressed a letter dated 30-05-2015 to the petitioner requesting him to produce documents about the fulfilment of the terms and conditions as the 2nd highest bidder and to give a counter offer to match upto the rate quoted by the highest bidder, and not that of the Private respondent, and immediately thereafter, i.e., on 02-06-2015, the Inspector General of Police (Admn.) addressed a letter to the Principal Secretary (Home), Government of Manipur requesting him to obtain an approval to the proposal made to the petitioner. Surprisingly, the petitioner has been asked to offer a bid to match upto the rate quoted by the highest bidder whereas the reconstituted Tender Opening Committee has already approved the rate quoted by the Private respondent when he expressed his inability to offer a bid to match upto the rate quoted by the highest bidder. In all fairness, the petitioner being the 2nd highest bidder as per the proceedings dated 10-10-2013 by which the tender of the Private respondent was found to be invalid, ought to have been given an opportunity to offer a bid to match upto the rate quoted by the Private respondent which the State respondents have failed to do so, thereby resulting in the violation of the provisions of Article 14 of the Constitution. 10. In view of the peculiar facts and circumstances of the case and for the reasons stated herein above, the instant writ petition is disposed of with the following directions: (a) The State respondents and in particular, the respondent No.1 shall take a decision, within a month from the date of receipt of a copy of this judgment and order, whether the process of tender is required to be cancelled or not; (b) If the decision is in the affirmative, it is open to the State respondents to take appropriate and immediate steps towards floating of a fresh tender in accordance with law; (c) If the decision is in the negative, the petitioner being the 2nd highest bidder as per the proceedings dated 10-10-2013 of the Tender Opening Committee, ought to be given an opportunity to offer a bid to match upto the rate quoted by the Private respondent and in case he expresses his unwillingness or inability to do so, it is open to the State respondents to accept the bid of the Private respondent.