JUDGMENT : DR. B.R. SARANGI, J. 1. Jindal Steel & Power Limited, petitioner no.1, a company incorporated under the Companies Act, 1956, is engaged in business of manufacturing of sponge iron/steel, generation of electricity, development/operation of mines in India and abroad including coal mines. Jindal Power Limited, petitioner no.2, which is also a company incorporated under the Companies Act, 1956, is engaged in the business of generation of power, development and operation of mines etc. Petitioner no.3, who is working as Associate Vice-President of petitioner no.1 company and also one of its share holders, is duly authorized by the corporate management committee of Board of Directors of petitioner no.1 vide its resolution dated 02.03.2017 and petitioner no.2 vide resolution dated 17.02.2017 to institute legal proceedings against the opposite party with respect to the tender process for selection of Mines Developer and operator for Manoharpur Coal Mines vide NIT No.OCPL/33/2016 dated 12.12.2016. 2. Odisha Coal and Power Limited (in short ‘OCPL’) is a joint venture of Odisha Power Generation Corporation (in short ‘OPGC’) and Odisha Hydro Power Corporation (in short ‘OHPC’), both Government of Odisha undertakings. Therefore, the opposite party is a “Government Company” as defined under Section 2 (45) of the Companies Act, 2013. The opposite party was created to develop and operate coal mines to cater to the fuel requirements of the expansion of power plant of OPGC. OPGC is establishing the End Use Plant as part of its capacity addition. 3. The Ministry of Coal, Government of India has allotted two contiguous coal blocks, namely, Manoharpur Coal Mine and the dip side of Manoharpur Coal block, both located in Ib valley coalfields in Odisha, to the opposite party for supply of coal exclusively for use in the power plant (under construction) of OPGC. The NIT No.OCPL/33/2016 dated 12.12.2016 pertains to only Manoharpur Coal Mines. The opposite party intended to appoint a Mine Operator (MO) in respect of the Manoharpur coal mine. Accordingly, the opposite party issued Request For Qualification (RFQ) for the selection of MO for operation of Manoharpur coal mines project in the State of Odisha, India. Therefore, International Competitive Bidding (ICB) was issued on 12.12.2016. The said RFQ has been revised twice vide Corrigendum-1 dated 23.12.2016 and Corrigendum-2 dated 07.03.2017. The schedule date for submission and opening of qualification proposals was 31.01.2017. Therefore, International Competitive Bidding (ICB) was issued on 12.12.2016. The said RFQ has been revised twice vide Corrigendum-1 dated 23.12.2016 and Corrigendum-2 dated 07.03.2017. The schedule date for submission and opening of qualification proposals was 31.01.2017. Consequence of issuance of Corrigendum, revised cut-off date and time for submission of proposals for qualification was fixed to 25.03.2017 at 14.00 hours. The qualification proposals were scheduled to be opened at 14.30 hours on 25.03.2017. Vide Corrigendum-1 dated 23.12.2016, the opposite party modified Section-5.2 of the RFQ and Appendix-5 relating to technical qualification requirement that in place of “financial year”, it should be “calendar year”. Subsequently, the opposite party modified Sections-5.2.2 (c) and 5.4.3 of the RFQ as well as Annexure-A to the RFQ vide Corrigendum-2 dated 17.03.2017. The said modifications incorporated certain clarification regarding technical qualification in case of bids submitted under the consortium route. The opposite party allotted with such coal mines for the End Use (power plant of OPGC) with 420 MW is being expanded by another 1320 MW and, as such, the opposite party has already invested around rupees 500 crores in the aforementioned coal blocks as the coal will be used to meet the captive requirement of OPGC for generation of electricity in the Thermal power plant established at Banaharpali in the district of Jharsuguda for the larger benefit of people of the State of Odisha. 4. The present requirement of coal in the said power plant of OPGC is around 7.5 MTPA (Million Tonnes Per Annum). Both petitioners no.1 and 2 are having experience and expertise in development and operation of coal mines of capacities similar to the Manoharpur coal mines. As far as present RFQ is concerned, petitioner no.1 (which meets the financial qualification requirement) is desirous to seek qualification through the affiliate route relying on the technical credentials of its subsidiary/affiliate, petitioner no.2, which has developed and operated Gare Palma IV/2 and IV/3 in Chhatisgarh with geological reserves of 246.84 MT (Million Tonnes), mineable reserves of 187.19 MT and annual capacity of 6.25 MTPA. So also the petitioner no.1 has developed and operated the said coal block as mine owner, the Gare Palma IV/1 coal mine in Chhatisgarh having geological reserves of 140.89 MT and capacity of 6 MTPA and had operated the said mine from February, 1999 to March, 2015. So also the petitioner no.1 has developed and operated the said coal block as mine owner, the Gare Palma IV/1 coal mine in Chhatisgarh having geological reserves of 140.89 MT and capacity of 6 MTPA and had operated the said mine from February, 1999 to March, 2015. Both the petitioner nos.1 and 2 are also carrying out the CSR (Corporate Social Responsibility) activities in peripheral villages of the said Gare Palma IV/1 coal mine and also carried out pre-mining activities like obtaining statutory clearance (environment clearance, forest clearance etc.) as well as land acquisition, CSR etc. in relation to the said coal mines in Chhatisgarh. Consequentially, both petitioners no.1 and 2 have successfully developed and operated Gare Palma IV/1, IV/2 and IV/3 coal mine respectively and have ensured that the operations of the same are of a standard much higher than the industry benchmark on the cost effectiveness and reliability parameters. In view of the experience and expertise in the entire spectrum of activities involved in development and operation of the coal mines, petitioners no.1 and 2 are desirous of and looking forward to participate in the subject tender process through the affiliate route and bid on a level paying field with other interested bidders. 5. The provisions contained in 5.2.1 requires a bidder to have been awarded a mining contract for development and operation of a single coal/lignite mine having a reserve of at least 150 MT with annual capacity of at least 7 MTPA and should have produced at least 3 MT of coal/lignite from such mine in any one calendar year during the ten (10) calendar years preceding the date of opening of the qualification proposal. The petitioners no.1 and 2 may not qualify and, as such, they will be deprived of participating in the tender process. Therefore, it is contended that such condition is arbitrary, unreasonable and contrary to the provisions of law. Hence this application. 6. Mr. Arvind Verma, learned Senior Counsel appearing along with Mr. Srijeet Mohanty and Ms. Sruti Choudhury, learned counsel for the petitioners contended that fixation of annual capacity at least 7 MTPA under Section 5.2.1 of the RFQ has no nexus or co-relation with object sought to be achieved and, therefore, such condition is arbitrary and unreasonable. Hence this application. 6. Mr. Arvind Verma, learned Senior Counsel appearing along with Mr. Srijeet Mohanty and Ms. Sruti Choudhury, learned counsel for the petitioners contended that fixation of annual capacity at least 7 MTPA under Section 5.2.1 of the RFQ has no nexus or co-relation with object sought to be achieved and, therefore, such condition is arbitrary and unreasonable. It is contended that petitioner no.1 having capacity of 6 MTPA and is affiliated with petitioner no.2 having 6.25 MTPA, they jointly having more capacity and having been allowed to participate on affiliated route basis, in view of the condition stipulated in Section-5.2.1 fixing annual capacity at least of 7 MTPA has no nexus or co-relation with object sought to be achieved. It is further contended that the petitioners have already made representation justifying their request for reducing the pre-qualification of annual capacity from 7 MTPA to 4-6 MTPA by relying on the chart to indicate the prevailing trade practice followed by different Public Sector Undertakings (PSUs) in fixing minimum qualifying criteria while floating the similar tenders. In spite of request being made by the petitioners by way of representation vide communication dated 12.03.2017, since the opposite party has not accepted to revise or clarify the relevant sections of RFQ, as sought by the petitioner no.1, it has become imperative to prefer the instant writ petition. The further contention of learned Senior Counsel for the petitioner is that such irrelevant, arbitrary and irrational technical qualification requirement stipulated under Section-5.2.1 in the RFQ dated 12.12.2016 is merely to exclude the petitioners from the zone of consideration for appointment as MO for the project. Therefore, challenge has been made to Section-5.2.1 of the RFQ to the effect that in order to be eligible, bidders should have produced 3 MT of coal/lignite in any calendar year during ten calendar years preceding the date of opening of the qualification proposal for a coal mine having geological/mine-able reserves of at least 150 MT and annual capacity of at least 7 MTPA is arbitrary, discriminatory, unreasonable, irrelevant and irrational to the extent that requirement of such experience in relation to mines with annual capacity of 7 MTPA. As such, denial of opportunity to the petitioners from participation at the subsequent stage of tender process, is arbitrary and unfair. As such, denial of opportunity to the petitioners from participation at the subsequent stage of tender process, is arbitrary and unfair. Therefore, in exercise of extra ordinary jurisdiction and power of judicial review, this Court should interfere with the condition stipulated in Section-5.2.1 and quash the same. To substantiate his contention, he has relied upon the judgments of the apex Court in Union of India v. Dinesh Engineering Corporation, (2001) 8 SCC 491 ; Chittaranjan Mishra v. State of Odisha, 2016 (II) OLR 735; and Nagarjuna Trust Company v. Delhi Jal Board, 157 (2009) DLT 560. 7. Mr. Sanjit Mohanty, learned Senior Counsel appearing along with Mr. R.R. Swain, learned counsel for opposite party refuted the argument advanced by Senior Counsel for the petitioners and justified the reasonable nexus of fixing of 7 MTPA in Section-5.2.1 and contended that such condition is wholly and fully justified. It is contended that the present RFQ having been issued to select an MO, which will produce coal from the Manoharpur coal mine to cater the End Use of the power plant of OPGC. The stipulation fixed in Section 5.2.1 of the RFQ dated 12.12.2016 states that the bidder must have been awarded a mining contract for development and operation of single coal/lignite mine having a reserve of at least 150 MT with annual capacity at least 7 MTPA and should have produced at least 3 MT of coal/lignite from such mine in any one calendar year during the last ten (10) calendar years preceding the date of opening of the qualification proposal, i.e., calendar year 2007-2016 has a rational nexus behind the object sought to be achieved, i.e., to meet the fuel requirement of OPGC. The annual capacity of at least 7 MTPA means, the annual production capacity of the mines should be at least 7 MTPA. The End Use plant coal requirement being 7.5 MTPA of coal, the stipulation of working of development and operation of a coal mine of at least 7 MTPA has a rational nexus behind the object sought to be achieved, i.e., to meet the End Use requirement of the power plant of OPGC. Therefore, Section 5.2.1 of RFQ cannot be termed as irrelevant, arbitrary, unreasonable or discriminatory. Therefore, Section 5.2.1 of RFQ cannot be termed as irrelevant, arbitrary, unreasonable or discriminatory. In response to the request made by the petitioners in letter dated 09.01.2017 to amend the requirement of annual capacity from 7 MTPA to 4-6 MTPA, opposite party has already clarified that the existing provisions of Section 5.2.1 of RFQ would prevail. There is justifiable reason for the said fixation, when as per mining plan, Manoharpur mining plan has got capacity of 8 MTPA and requirement of coal is 7.50 MTPA. Therefore, minimum requirement has been fixed as 7 MTPA under Section-5.2.1 as eligible criteria. Thereby, no illegality or irregularity has been committed by the authority concerned in fixation of such condition and, more so, the condition of the contract cannot be interfered with in exercise of power of judicial review. It is further contended that six bidders have participated in the process of selection and none of them have been made as parties to the proceeding, even though the said fact was brought to the notice of the petitioners by way of filing counter affidavit. Therefore, otherwise also, the writ petition suffers from nonjoinder of proper parties and the same is liable to be dismissed. In order to substantiate his contention, he has relied upon the judgments of the apex Court in the case of Tata Cellular v. Union of India, AIR 1996 SC 11 ; Directorate of Education and others v. Educomp Datamatics Ltd., (2004) 4 SCC 19 ; Michigan Rubber (India) Limited v. State of Karnatak and others, (2012) 8 SCC 216 ; Central Coalfields Limited v. SLL-SML (Joint Venture Consortium), AIR 2016 SC 3814 ; and Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corporation Ltd., AIR 2016 SC 4305 . 8. Having heard learned counsel for the parties and after perusing the records, since pleadings between the parties have been exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 9. Undisputedly, the opposite party issued request for qualification (RFQ) of selection of MO for the operation of Manoharpur Coal mine Project in the district of Sundargarh, Odisha through ICB pursuant to NIT No. OCPL/33/2016 dated 12.12.2016. The cost of RFQ document was fixed as Rs.52,500/-including VAT @ 5% and operation period was mentioned as ten years. 9. Undisputedly, the opposite party issued request for qualification (RFQ) of selection of MO for the operation of Manoharpur Coal mine Project in the district of Sundargarh, Odisha through ICB pursuant to NIT No. OCPL/33/2016 dated 12.12.2016. The cost of RFQ document was fixed as Rs.52,500/-including VAT @ 5% and operation period was mentioned as ten years. The last date for download/sale of RFQ document was fixed to 20.02.2016 and date of submission/opening was fixed to 31.01.2017. For just and proper adjudication of the case, the relevant Sections mentioned in RFQ are extracted hereunder: “DISCLAIMER: 1. The Ministry of Coal (“MoC”), Government of India (“GoI”), has, pursuant to provision of the Coal Mines (Special Provisions) Act, 2015 and the Coal Mines (Special Provisions) Rules, 2014, allotted the Manoharpur coal mine to Odisha Coal and Power Limited (“OCPL”) for utilization of coal from the Manoharpur coal mine for generation of power from the expansion thermal power plant of Odisha Power Generation Corporation Limited (“OPGC”) situated at Jharsuguda, Odisha (the “End Use Plant”). It is made clear to all the Bidders that the present bidding process is for engaging a Mine Operator to carry out the scope of work narrated herein below only as a service contractor at the Manoharpur opencast coal mine project and the same does not create any ownership or charge on the Manoharpur coal block in favour of the Bidder/Mine Operator. xx xx xx INTRODUCTION 1. OCPL is a Government company (as defined under Section 2(45) of the Companies Act, 2013) incorporated under the Companies Act, 2013 in India. OCPL is a joint venture of Odisha Power Generation Corporation Limited (“OPGC”) and Odisha Hydro Power Corporation Limited (“OHPC”), with OPGC and OHPC holding 51% and 49% respectively of the equity share capital of OCPL. OCPL was created to develop and operate coal mines to cater to the fuel requirements of the expansion Power Plant of OPGC as a first step. OPGC is establishing the End Use Plant based on supercritical technology as a part of their capacity addition. OCPL was created to develop and operate coal mines to cater to the fuel requirements of the expansion Power Plant of OPGC as a first step. OPGC is establishing the End Use Plant based on supercritical technology as a part of their capacity addition. In a bid to secure fuel supply for the End Use Plant, the MoC, has allotted two contiguous coal blocks, the Manoharpur (fully explored with net geological reserves of 186.00 MT) and the dip side of Manoharpur (regionally explored with indicative geological reserves of 350MT) coal blocks, located in Ib Valley coalfields in the state of Odisha, to OCPL for supply of coal exclusively for use in the End Use Plant. The construction of the End Use Plant is in full swing and is on schedule. OCPL proposes to appoint a contractor with proven professional track record and experience in the development, operation and maintenance of coal mines as the Mine Operator. With this RFQ, following a process of international competitive bidding, OCPL seeks Qualification Proposals from prospective bidders (“Bidders”) to work as the Mine Operator at the Manoharpur Coal Mine and perform the indicative scope of work illustrated in Section 3.5 of the RFQ. 2. DEFINITIONS AND RULES OF INTERPRETATION. ‘Affiliate’ means and includes with respect to any company, corporation or incorporated entity, any other company, corporation or incorporated entity directly or indirectly Controlling, Controlled by such company, corporation or incorporated entity or under the common Control of the same company, corporation or incorporated entity who controls such company, corporation or incorporated entity and shall include Holding and Subsidiary Companies. For the purpose of this RFQ, “control” in relation to any company, corporation or incorporated entity shall mean: (a) ownership or control (whether directly or otherwise) of more than fifty percent (50%) of the equity share capital, voting rights or the like of the controlled company, corporation or incorporated entity; or (b) ownership of equity share capital, voting rights, or the like by contract or otherwise, conferring control of, power to control the composition of, or power to appoint more than fifty percent (50%) of the members of the board of directors, board of management, or other equivalent body of the controlled entity. xx xx xx ‘End Use Plant’ means the 2X660 MW thermal power project of OPGC, at Banharpalli, in the Jharsuguda District of Odisha, India. xx xx xx ‘End Use Plant’ means the 2X660 MW thermal power project of OPGC, at Banharpalli, in the Jharsuguda District of Odisha, India. xx xx xx ‘Qualified Bidder’ means a Bidder who meets the qualification requirements set out in Section 5 and is declared by OCPL to be qualified to participate in the second (RFP) stage of the bidding process, based on an evaluation of the Qualification Proposal. ‘Qualification Proposal’ means a proposal submitted by a Bidder in response to this RFQ to qualify for the submission of a bid for award of the Agreement(s), which shall be in the formant prescribed at Annexure A. ‘RFP’ means a request for proposals that may be issued by OCPL to Qualified Bidders, for the purpose of awarding the Agreement(s). ‘RFQ’ means this request for qualifications dated 12th December, 2016. xx xx xx ‘Technically Qualified’ means a company, corporation or incorporated entity that meets the technical qualification requirement, as indicated in Section 5.2. xx xx xx 3. PROJECT DESCRIPTION 3.1 General The information in this section is provided for the general guidance of the Bidders: Owner and its registered office Odisha Coal and Power Limited Zone-A, Ground Floor, Fortune Towers, Chandrasekharpur, Bhubaneswar, Odisha, India -751 023 Consultants to OCPL in relation to the Project • PricewaterhouseCoopers Pvt. Ltd. (PwC) • Central Mine Planning Design Institute (CMPDI) • GEOENVITECH Research & Consultancy Services Private Limited • Norwest Corporation • Trilegal Project Development and Operation and maintenance of the Manoharpur Coal Mine and associated infrastructure. Location of Manoharpur Coal Mine • Village-Manoharpur, Tahsil-Himgiri, District-Sundargarh, Odisha, India • Latitude : 210 56’ 19” to 210 58’04” North • Longitude : 830 46’ 00” to 830 47’26” East Key Information • Fully explored block. Geological Report (“GR”) available • Block Area : 6.52 sq. Location of Manoharpur Coal Mine • Village-Manoharpur, Tahsil-Himgiri, District-Sundargarh, Odisha, India • Latitude : 210 56’ 19” to 210 58’04” North • Longitude : 830 46’ 00” to 830 47’26” East Key Information • Fully explored block. Geological Report (“GR”) available • Block Area : 6.52 sq. km • Net Geological Reserve : 188.07 Million Tonne • No. of Coal Seams : 9 • Dip: 6 to 8 degree • Strike length : 3.5 Km End Use Plant’s Location 2x660 MW Thermal Power Plant of OPGC, located at Ib Thermal Power Station (ITPS), Banaharpali, District-Jharsuguda, Odisha, India – 768234 End Use Plant’s Coal Requirement • 7.50 MTPA of coal • Size of Coal : 100 mm or less • Total Moisture Content ≤ 13.10% (as received basis) • Ash Contents ≤ 41% (air dried basis) • Gross Calorific Value ≥ 3200 kcal/kg Access to Manoharpur Coal Mine • Road-Belpahar on NH-2000 is 30 km from Manoharpur • Rail-Belpahar on Howrah-Mumbai railway line is around 30 km from Manoharpur • Air Port –Nearest Airport is Bhubaneswar/Kolkata • Sea Port – Paradip/Visakhapatnam 3.2 Project Status OCPL has already initiated development work on the Manoharpur Coal Mine and the Manoharpur Coal Mine is at an advanced stage of development. The current status is given below : Manoharpur Coal Mine Land for Manoharpur Coal Mine • Compensation has been awarded and payment has been done. Possession is underway and is expected to be completed by end of FY 2017. Permits and Clearances • Environment clearance has been obtained from the MoEF&CC, GoI, • Stage I and Stage II forest clearance has been obtained from MoEF&CC, GoI. • Previous approval received from MoC, Grant Order is expected to be issued shortly. • Water allocation has been accorded from GoO. • Approval for power supply to the Manoharpur Coal Mine has been obtained from the state transmission utility. • In-principle clearance received from Chief Controller of Explosives for construction of magazine house and storage of explosive. • Consent to establish has been received from the Odisha State Pollution Control Board. Rehabilitation and Resettlement (R&R) • R&R colony has been constructed. • Shifting of villagers to the R & R Colony has started and is expected to be completed by another 6 months’ time. 61 families out of 240 families have already been relocated. • Consent to establish has been received from the Odisha State Pollution Control Board. Rehabilitation and Resettlement (R&R) • R&R colony has been constructed. • Shifting of villagers to the R & R Colony has started and is expected to be completed by another 6 months’ time. 61 families out of 240 families have already been relocated. Mine Plan • Mine plan and Mine Closure Plan for the Manoharpur Coal Mine were previously approved by MoC. However, suitable modifications to the Mine Plan are being incorporated by CMPDIL while revising the Mine Plan. This will be provided along with RFP. OCPL will simultaneously submit the revised Mine Plan to MoC for its approval. Coal Handling Plan(CHP) Scope OCPL will establish a CHP of 4000 tonnes per hour capacity to size the coal by using two stage sizes and then convey the coal to the storage area before loading the coal on to the railway wagons of the MGR through an RLS. Design CHP design has been finalised. Design shall be provided to Qualified Bidders along with RFP to assess the requirement of operation and maintenance. Contractor for construction of CHP Bidding process is underway and the contract is to be awarded shortly. Dip Side Manoharpur Coal Block (Please note that this is not in scope of the MO and is only for information purposes) Coal block • Contiguous to Manoharpur Coal Block • Regionally explored; Detailed exploration and GR Report to be prepared • Area : 6.81 sq. km. • Geological Reserve : 350 Million Tonne (Indicative) Status of coal block • All necessary clearance for exploratory core drilling • Exploration : Contract for exploratory core drilling of Dipside Manoharpur coal block has been awarded to M/s. South West Pinnacle Exploration Private Limited (SWPEPL). Drilling work has been successfully commenced at site. • Contract for supervision of exploratory core drilling services and preparation of Integrated Geological Report (IGR) of Manoharpur and Dipside Manoharpur coal block has been awarded to M/s. Central Mine Planning Design Institute (CMPDI). • Contract for testing of coal core samples has been awarded to Institute of Minerals and Materials Technology (IMMT). Work has been commenced. • All the necessary permissions for the drilling operation is in place. • Contract for testing of coal core samples has been awarded to Institute of Minerals and Materials Technology (IMMT). Work has been commenced. • All the necessary permissions for the drilling operation is in place. Xx xx xx Scope of the Work The indicative scope of work, which will be detailed and may be amended in RFP, to be undertaken by the MO shall include, among other things, the following : (a) Conducting all mining operations required to deliver the specified quality and quantity of coal to the delivery point i.e. loading point on to the railway wagon on MGR of OPGC, including: (i) drilling, blasting, excavating, loading, transporting, dumping, dozing, and handling of coal and overburden; (ii) operating and maintaining all mine infrastructures (whether provided by OCPL or the MO), such as equipment workshop, electrical substations, pumping arrangement, lighting/illumination equipment etc.; (iii) developing and maintaining mine infrastructures like the electrical distribution system in the mine area, water supply, pumping and drainage system in mine and colony, haul roads and dump yards for overburden and coal and mine sewage system etc; (iv) operating and maintaining the water supply system from Hirakud reservoir to the Manoharpur Coal Mine (approx. 47 km); (v) Operating and maintaining the CHP along with the related infrastructure of CHP such as the RLS and in-motion way bridge; (vi) Procuring, operating and maintaining the heavy earth moving machinery (HEMM) required for mining operations; (vii) Technical services like mine planning, geological services, surveying, etc; and (viii) Recruitment, employment, training, safety, and welfare of required personnel and workforce as per Applicable Laws. (b) Constructing and Fixed Mine Infrastructure, including without limitation, equipment workshop, Mine Operator office, Mine Operator’s residential colony, approach roads and all associated facilities and infrastructure. (b) Constructing and Fixed Mine Infrastructure, including without limitation, equipment workshop, Mine Operator office, Mine Operator’s residential colony, approach roads and all associated facilities and infrastructure. xx xx xx 4.2 Bidding Schedule Date of issue of RFQ 12-Dec-2016 Last date and time of collecting RFQ from OCPL office/Downloading from OCPL website 17:00 hrs on 21-Dec-2016 Last date and time for submission of queries by Bidders in relation to the RFQ 17:00 hrs on 28-Dec-2016 Issuance of clarifications by OCPL 05-Jan-2017 Qualification Proposal submission date and time 14:00 hrs on 31-Jan-2017 Qualification proposal opening date and time 16:00 hrs on 31-Jan-2017 Intimation to the Qualified Bidders (Indicative) 20-Feb-2017 Issuance of RFP to Qualified Bidders (Indicative) 27-Feb-2017 Pre-bid meeting (Indicative) 07-Mar-2017 Submission of techno commercial and price bid by Qualified Bidders (Indicative) 27-Apr-2017 (4:00 PM) Opening of Techno-Commercial Bids (indicative) 27-Apr-2017 (5:00 PM) Declaration of Short listed bidders (indicative) 26-May-2017 Reverse Bidding (indicative) 29-May-2017 Opening of Price Bids (indicative) 05-June-2017 Selection of Successful Bidders (Indicative) 05-June-2017 Execution of Agreement(s) with Selected Bidder/Project Company (Indicative) 12-June-2017 xx xx xx 5. QUALIFICATION REQUIREMENTS 5.1 Bidders shall meet the technical qualification requirement and financial qualification requirement stated in Sections 5.2 and Section 5.3 respectively to become a Qualified Bidder. 5.1.1 Nature of Bidder A Bidder may be a Mine Owner and operator or just a Mine Operator. In case both the Mine Owner and Mine operator (MDO/Contractor) claims experience of same mine then the experience of the Mine Operator (MDO/Contractor) shall be considered. 5.1.1 Nature of Bidder A Bidder may be a Mine Owner and operator or just a Mine Operator. In case both the Mine Owner and Mine operator (MDO/Contractor) claims experience of same mine then the experience of the Mine Operator (MDO/Contractor) shall be considered. 5.2 Technical Qualification Requirement For a Bidder to be Technically Qualified, it must have : 5.2.1 been awarded a mining contract for development, and operation of a single coal/lignite mine having a reserve of at least 150MT with annual capacity of at least 7 MTPA and should have produced at least 3 MT of coal/lignite from such mine in any one Financial Year during the ten (10) Financial Years preceding the date of opening of the Qualification Proposal (as specified in Section 4.2) i.e. FY 2006-07 to FY 2015-16; OR 5.2.2 in any Financial Year during the ten (10) Financial Years preceding the date of opening of the Qualification Proposal (as specified in the Section 4.2) i.e. FY 2006-07 to FY 2015-16: (a) mined twenty seven (27.0) million bank cubic meters or more per annum of composite volume of overburden/inter-burden/Pay Minerals on aggregate basis from a maximum of seven (7) open cast mines. and (b) mined at least twelve (12) million bank cubic meters of composite volume of overburden/inter-burden/Pay Minerals, where at least three (3) MT should be pay mineral from a single mine. and (c) experience in deploying, operating and maintaining within a mine (i) dump trucks of 50 Ton (Short Ton) payload capacity or more and (ii) loading units/shovel/excavator of 5 cubic meter bucket capacity or more. The mine considered to meet qualifying criteria at Section 5.2.2(b) can also be considered for meeting qualifying requirement at Section 5.2.2(a). xx xx xx 5.4 Qualification Routes The Bidder may seek qualification from only one route as mentioned below : 5.4.1 Qualification Route –A (Direct Route) The Bidder shall be both Technically Qualified and Financially Qualified. 5.4.2 Qualification Route-B (Affiliate Route) (a) The Bidder may relay on the technical qualifications and/or the financial qualifications of any one of its Affliates to satisfy the technical and financial qualifications specified in Section 5.2 and 5.3 respectively. 5.4.2 Qualification Route-B (Affiliate Route) (a) The Bidder may relay on the technical qualifications and/or the financial qualifications of any one of its Affliates to satisfy the technical and financial qualifications specified in Section 5.2 and 5.3 respectively. (b) If the Bidder is Technically Qualified and seeks qualification with support of an Affiliate who is Financially Qualified, the Bidder shall provide an undertaking from its Financially Qualified Affiliate in which the Financially Qualified Affiliate agrees to : (i) be jointly and severally liable for the Selected Bidder’s obligations under the Agreement(s); (ii) furnish a corporate guarantee (in shape of a Bank Guarantee) as specified in the Agreements in addition to the required contract performance security to be furnished by the Bidder for the term of Agreement from such Affiliate; and (iii) furnish its audited financial statements providing information as per Section 5.3 above. (c) If the Bidder is Financially Qualified and seeks qualification with support of an Affiliate who is Technically Qualified, the Bidder shall provide an undertaking from its Technically Qualified Affiliate in which the Technically Qualified Affiliate agrees to (i) be jointly and severally liable for Bidder’s obligations under the Agreement(s); and (ii) furnish a corporate guarantee (in the shape of a Bank Guarantee) as specified in the Agreements in addition to the required contract performance security to be furnished by the Bidder. (d) The Bidder seek qualification relying on an Affiliate who is both Financially Qualified and Technically Qualified. The Bidder shall provide an undertaking from its Financially Qualified and Technically Qualified Affiliate in which the Affiliate agrees to : (i) be jointly and severally liable for the Selected Bidder’s obligations under the Agreement(s); (ii) furnish a corporate guarantee ( in the shape of a Bank Guarantee) as specified in the Agreements in addition to the required contract performance security to be furnished by the Bidder; and (iii) furnish its audited financial statements providing information as per Section 5.3 above. The Bidder together with its supporting Affiliate shall be Technically Qualified and Financially Qualified. It is clarified that the Bidder may rely on the financial qualification and/or technical qualification only of any one of its Affiliates. 5.4.3 Qualification Route-C (Consortium Route) i. Bidders may form a Bidding Consortium, which shall comprise of only two members. ii. One of the members will be designated the lead member of the Bidding Consortium. It is clarified that the Bidder may rely on the financial qualification and/or technical qualification only of any one of its Affiliates. 5.4.3 Qualification Route-C (Consortium Route) i. Bidders may form a Bidding Consortium, which shall comprise of only two members. ii. One of the members will be designated the lead member of the Bidding Consortium. The lead member and the second member shall hold a minimum of 51% and 26% of the paid-up equity share capital of the Project Company, respectively. iii. The Qualification Proposal must be submitted in the name of the Bidding Consortium signed by the Authorised Representative of the lead member. iv. The financial strengths of only the lead member shall be considered for meeting the entire financial criteria as stipulated in Section 5.3. However, the minimum financial strength of the other member shall also be at least 20% of the financial criteria as specified in Section 5.3 v. The technical strength of only the second/other member shall be considered for meeting the entire technical criteria as specified in Section 5.2.2. However, the minimum technical strength of the lead member shall also be at least 20% of the technical criteria as specified in Section 5.2.2(a) only. xx xx xx” 10. However, the minimum technical strength of the lead member shall also be at least 20% of the technical criteria as specified in Section 5.2.2(a) only. xx xx xx” 10. In Corrigendum-1 to the NIT No. OCPL/33/2016 dated 12.12.1016 issued on 23rd December, 2016, the Section 4.2 bidding schedule has been mentioned as follows: “Clause No: 4.2 (Bidding Schedule) The Bidding Schedule has been modified as follows : Date of issue of RFQ 12-Dec-2016 Last date and time of collecting RFQ from OCPL office/Downloading from OCPL website 17:00 hrs on 21-Dec-2016 Last date and time for submission of queries by Bidders in relation to the RFQ 17:00 hrs on 28-Dec-2016 Issuance of clarifications by OCPL 05-Jan-2017 Qualification Proposal submission date and time 14:00 hrs on 31-Jan-2017 Qualification proposal opening date and time 16:00 hrs on 31-Jan-2017 Intimation to the Qualified Bidders (Indicative) 20-Feb-2017 Issuance of RFP to Qualified Bidders (Indicative) 27-Feb-2017 Pre-bid meeting (Indicative) 07-Mar-2017 Submission of techno commercial and price bid by Qualified Bidders (Indicative) 27-Apr-2017 (4:00 PM) Opening of Techno-Commercial Bids (indicative) 27-Apr-2017 (5:00 PM) Declaration of Short listed bidders (indicative) 26-May-2017 Reverse Bidding (indicative) 29-May-2017 Opening of Price Bids (indicative) 05-June-2017 Selection of Successful Bidders (Indicative) 05-June-2017 Execution of Agreement(s) with Selected Bidder/Project Company (Indicative) 12-June-2017 In the event of the specified date for submission or opening of Qualification Proposal being declared a holiday for OCPL, the Qualification Proposals will be opened at the appointed time on the next working day.” In Section 5.2 (Technical qualification requirement) in place of “financial year” it has been modified to “calendar year” in Section 5.2.1. The “calendar year” means continuous period of 12 months from 1st January to 31st December. 11. The “calendar year” means continuous period of 12 months from 1st January to 31st December. 11. In Corrigendum-2 to the NIT No.OCPL/33/2016 dated 12.12.2016 issued on 6th March, 2017, Clause 4.2 the bidding schedule reads thus: “Clause No.: 4.2 (Bidding Schedule) The Bidding Schedule has been modified as follows : Date of issue of RFQ 12 Dec 2016 Last date and time of collecting RFQ from OCPL office/Downloading from OCPL website 25 Mar 2016 14:00 hrs on 25 Qualification Proposal submission date and time 14:00 hrs on 25 Mar 2017 Qualification proposal opening date and time 14:30 hrs on 25 Mar 2017 Intimation to the Qualified Bidders (Indicative) 05 May 2017 Issuance of RFP to Qualified Bidders (Indicative) 08 May 2017 Pre-bid meeting (Indicative) 22 May 2017 Submission of techno commercial and price bid by Qualified Bidders (Indicative) 22 Jul 2017 (4:00 PM) Opening of Techno Commercial Bids (indicative) 22 Jul 2017(5:00 PM) Declaration of Short listed bidders (indicative) 21 Aug 2017 Reverse Bidding (indicative) 30 Aug 2017 Opening of Price Bids (indicative) 05 Sep 2017 Selection of Successful Bidders (Indicative) 05 Sep 2017 Execution of Agreement(s) with Selected Bidder/Project Company (Indicative) 06 Oct 2017 In the event of the specified date for submission or opening of Qualification Proposal being declared a holiday for OCPL, the Qualification Proposals will be opened at the appointed time on the next working day.” 2. Clause 5.2.2(c) Existing Provision Modified Provision Experience in deploying, operating and Experience in deploying, maintaining within a mine (i) dump trucks operating and maintaining of 50 Ton (Short Ton) payload capacity or within a mine (i) dump more and (ii) loading trucks of 50 Ton (Short units/shovel/excavator of 5 cubic meter Ton) payload capacity or bucket capacity or more. Experience in deploying, operating and Experience in deploying, maintaining within a mine (i) dump trucks operating and maintaining of 50 Ton (Short Ton) payload capacity or within a mine (i) dump more and (ii) loading trucks of 50 Ton (Short units/shovel/excavator of 5 cubic meter Ton) payload capacity or bucket capacity or more. * in case the bidder is submitting the Qualification Proposal as per the provisions of Section 5.4.3 “Qualification Route-C (Consortium Route)”, any of the consortium members shall 3. * in case the bidder is submitting the Qualification Proposal as per the provisions of Section 5.4.3 “Qualification Route-C (Consortium Route)”, any of the consortium members shall 3. Clause v of 5.4.3 [Qualification Route –C (Consortium Route)] : Existing Provision Modified provision The technical strength of only the second/other member shall be considered for meeting the entire technical criteria as specified in Section 5.2.2. However, the minimum technical strength of the lead member shall also be at least 20% of the technical criteria as specified in Section 5.2.2 (a) only. The technical strength of only the second/other member shall be considered for meeting the technical criteria as specified in Section 5.2.2 (a) and (b), except (c). The requirement under the Section 5.2.2(c) can be met by any of the consortium members (Lead member or the Other member). However, the minimum technical strength of the lead member shall also be at least 20% of the technical criteria as specified in Section 5.2.2(a) only. 12. Mr. Arvind Verma, learned Senior Counsel appearing for the petitioner, referring to Section 5.2.1, contended that a bidder, to be technically qualified, must have been awarded a mining contract for development and operation of a single coal/lignite mine (i) having a reserve at least 150 MT (ii) with annual capacity 7 MTPA and (iii) should have produced at least 3 MT of coal/lignite from such mine in any one calendar year during the ten calendar years preceding the date of opening of the qualification proposal (as specified in Section 4.2), i.e., calendar year 2006-07 to calendar year 2015-16. Unless the three conditions, as mentioned above, are satisfied a bidder will not be technically qualified. It is contended that by fixing annual capacity of at least 7 MTPA no reasonable nexus has been sought to be achieved when at least 3 MT of coal/lignite from such mine in any one calendar year during the ten calendar years preceding the date of opening of the qualification proposal is required. Therefore, fixation of annual capacity of at least 7 MTPA is arbitrary, unreasonable and irrational, and such condition should be modified fixing only capacity of 4-6 MTPA as per request made by the petitioners. In course of hearing, a query was made by this Court to the extent that whether the petitioners were alleging any mala fide or bias against the opposite party in fixation of requirement of Section 5.2.1. In course of hearing, a query was made by this Court to the extent that whether the petitioners were alleging any mala fide or bias against the opposite party in fixation of requirement of Section 5.2.1. With all fairness, Mr. A. Verma, learned Senior Counsel appearing for the petitioners admitted that there was no allegation of mala fide or bias by the petitioners against the opposite party in fixation of terms and conditions as per Section 5.2.1. Therefore, the Court proceeded with the matter to decide the conditions stipulated in Section 5.2.1 whether arbitrary, unreasonable and irrational. 13. Mr. S. Mohanty, learned Senior Counsel appearing for the opposite party argued with vehemence that the conditions stipulated in Section 5.2.1 is wholly justified and as such, it is not arbitrary, unreasonable or irrational so as to warrant interference of this Court in exercise of power of judicial review under Article 226 of the Constitution of India. In order to justify the same, it is contended that the present requirement of coal in the End Use plant of OPGC situated at Ib-Termal Power Station, Banharpali, Jharsuguda is around 7.5 MTPA, which has been stated in Section 3.1 “End Use Plant’s Coal Requirement” of RFQ. The present RFQ has been issued to select an operator who will produce coal from the Manoharpur Coal mine to cater the End Use of the power plant of OPGC. The stipulation in Section 5.2.1 of the RFQ dated 12.12.2016 categorically states that the bidder must have been awarded a mining contract for development and operation of single coal/lignite mine having a reserve of at least 150 MT with annual capacity of at least 7 MTPA and should have produced at least 3 MT of coal/lignite from such mine in any one calendar year during the last ten calendar years preceding the date of opening of the qualification proposal, (i.e., calendar year 2007-2016) has a rational nexus behind the object sought to be achieved, i.e., to meet the fuel requirement of OPGC. The annual capacity of at least 7 MTPA means, the annual production capacity of the mines should be at least 7 MPTA as per the mining plan. The annual capacity of at least 7 MTPA means, the annual production capacity of the mines should be at least 7 MPTA as per the mining plan. The End Use plant’s coal requirement being 7.5 MTPA of coal, the stipulation of working of development and operation of a coal mine of at least 7 MTPA thus has a rational nexus behind the object sought to be achieved. The stipulation as stated in Section 5.2.1 of the RFQ thus cannot be termed as irrelevant, arbitrary, unreasonable and discriminatory. 14. The stipulation of Section 5.2.1 of RFQ dated 12.12.2016 has been amended vide issuance of Corrigendum dated 23.12.2016 and by another Corrigendum dated 06.03.2017. Section 4 of RFQ provides for two stage bidding process. Stage-I is for identification of qualified bidders and stage-II is for selection of the mine operator. Therefore, for the purpose of stage-I, i.e. for identification of qualified bidders, the RFQ has been issued. The opposite party is at the first stage of identifying the qualified bidders under the RFQ issued on 12.12.2016 which has been modified by Corrigendum dated 23.12.2016 and 06.03.2017. Section-5.4 of RFQ provides for submission of proposal in three different qualification routes, i.e., Route-A-Direct Route under Section 5.4.1; Route-B-Affiliate Route under Section 5.4.2; and Route-C-Consortium Route under Section 5.4.3. In terms of Section 4.2 of RFQ dated 12.12.2016 a pre-bid qualification meeting was held on 10.01.2017 and queries/clarifications/ suggestions/requests were received from various intending bidders including the present petitioners on various issues and the same were responded by the opposite party on 12.03.2017. On Section-3.1, bidders requested to clarify the actual requirement of End Use of plant as at the top of the RFQ documents mentioned “Mahoharpur OCP-8 MTPA”, but the End Use plant’s requirement was 7.5 MTPA. The opposite party clarified that the peak rated capacity of the mine is 8 MTPA. The production expectation from Manoharpur mine is 8 MTPA +/-10% based on requirement of End Use plant of OPGC. The petitioners had also requested vide Annexure-15 dated 09.01.2017 to amend the requirement of annual capacity from 7 MTP to 4-6 MTPA, but the opposite party clarified that the existing provisions of Section 5.2.1 of RFQ will prevail. The production expectation from Manoharpur mine is 8 MTPA +/-10% based on requirement of End Use plant of OPGC. The petitioners had also requested vide Annexure-15 dated 09.01.2017 to amend the requirement of annual capacity from 7 MTP to 4-6 MTPA, but the opposite party clarified that the existing provisions of Section 5.2.1 of RFQ will prevail. Reason being any deviation regarding supply of coal from Manoharpur coal mine will ultimately affect the generation of electricity in the power plant of OPGC situated at Banharpali, Jharsuguda and will lead to initiation of proceeding by Ministry of Coal to cancel the coal block as the operation and supply of coal by OPCL to OPGC is a time bound programme and for End Use plant of OPGC. Therefore, the opposite party has prescribed the terms and conditions in notice inviting tender/RFQ documents keeping in consideration the nature and scope of the work and in such matter, the authority calling for the tender is the best judge to fix the conditions of the notice inviting tender/RFQ documents. In RFQ documents Section-5.2, which speaks of technical qualification requirement, contains two parts, namely Section 5.2.1, Section 5.2.2. Therefore, for a bidder to be technically qualified either he has to satisfy the Section 5.2.1 or Section 5.2.2. The choice has been given to the bidders to qualify technically either in Section 5.2.1 or in Section 5.2.2. Therefore, the scope is wide open to attract a large number of bidders so as to enable the opposite party to get best choice and best person to allocate the work in RFQ. 15. The authority inviting tender should have a free hand in setting the terms of the tender as per its requirement. The authority should have reasonable play in its joints as a necessary concomitant for an administrative body in administrative sphere. Choice in balancing the pros and cons lies with the authority inviting tender. Needless to say that the opposite party had furnished a bank guarantee of 153 crores to the nominated authority, Ministry of Coal, Government of India in consonance with the conditions of the allotment agreement and such guarantee has been given to achieve the target/milestone. The present RFQ has been issued for 1320 MW End Use power plant of OPGC. The coal requirement of 1320 MW power plant at 100% PLF (Plant Load Factor) would come to 8 MTPA. The present RFQ has been issued for 1320 MW End Use power plant of OPGC. The coal requirement of 1320 MW power plant at 100% PLF (Plant Load Factor) would come to 8 MTPA. Therefore, the head note of RFQ has clearly stated “Request for Qualification-Mine Operator/Manoharpur OCP-8 MTPA”. The mining plan for Manoharpur Coal mining has also been approved for 8 MTPA. The plant of OPGC approximately runs between 85% and 100% PLF and if the plant runs at 85% PLF then it would require 7 MTPA. Therefore, the stipulation in Section 5.2.1 of RFQ that the bidder should have experience in developing and operating a single coal/lignite mine having a reserve of at least 150 MT with annual production capacity (of that mine) of at least 7 MTPA and should have produced at least 3 MT of coal/lignite from such mine in any one calendar year during the ten calendar years preceding the date of opening of the qualification proposal has a rational nexus behind the object sought to be achieved, i.e., to meet the End Use requirement of the power plant of OPGC. 16. It is settled law that the terms of the invitation to tender are not open to challenge as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated with malice. The issuance of notice inviting tender/RFQ documents by OPCL and stipulation therein is purely a policy decision in a non-statutory contract and has a rational nexus sought to be achieved, i.e., to meet the captive requirement of OPGC power plant Banharpali, Jharsuguda. Therefore, terms and conditions of tender/RFQ documents are legal, rational and lawful. 17. The petitioners claim that the technical qualifications of the petitioner no.1 and its affiliate, being the petitioner no.2, would be cumulatively considered for meeting the qualification requirement stipulated in Section 5.2.1 of the RFQ. But in paragraph-2 of the writ application it has been categorically mentioned that petitioner no.1 intends to participate in the said tender through the ‘Affiliate Route’ as per Section 5.4.2 of the RFQ by also relying on the technical qualifications of its affiliate (subsidiary company), namely, Jindal Power Limited, the petitioner no.2. As per the stipulation regarding experience in developing and operating a single coal/lignite mine of 7 MTPA annual production capacity has been clearly stipulated in Section 5.2.1 of RFQ. As per the stipulation regarding experience in developing and operating a single coal/lignite mine of 7 MTPA annual production capacity has been clearly stipulated in Section 5.2.1 of RFQ. The petitioners have admitted that they do not have experience in developing and operating a single coal/lignite mine of 7 MTPA annual production capacity, as they have experience of 6.25 MTPA annual production capacity. Consequentially, the petitioners are ineligible to participate in the RFQ dated 12.12.2016 in terms of stipulation in Section 5.2.1. 18. Mr. S. Mohanty, learned Senior Counsel appearing for the opposite party contended that the petitioners have not possessed single mine as required under the terms and conditions of the RFQ and, therefore, they are otherwise also ineligible to participate in the bid process. In order to substantiate such contention, he has relied upon the pleadings available in the writ petition in paragraphs 2, 4, 7 and 9 and also paragraph-7 of the counter affidavit, wherein it has been specifically mentioned that despite the fact that petitioner no.2 (affiliate of petitioner no.1) with whose support petitioner no.1 in terms of Section 5.4.2 intends to participate in the present RFQ, has developed and operated (as mine owner till 31.03.2015) Gare Palma IV/2 and IV/3 coal mine with geological reserve of 246.84 MT, mine-able reserves of 187.19 MT and has had annual production of coal up to 6.25 MT in the relevant financial year and 6.47 MT in the relevant calendar year. It is contended that petitioner no.2 does not have a single coal mine with the requirement of RFQ as single coal mine and to substantiate his contention, reliance has been placed on the judgment of the apex Court in Manohar Lal Sharma v. Principal Secretary and others, 2014 (9) SCC 614 , at page 628 where cancellation of two mines of the petitioner therein, as alleged, has been mentioned, when under the RFQ requires production of 7 MTPA capacity from a single mine, but the Gare Palma IV/2 and IV/3 coal mines together have got an annual capacity of 6.25 MTPA. Therefore, it does not fulfill the requirement of the other conditions also as stipulated in RFQ. 19. Mr. Therefore, it does not fulfill the requirement of the other conditions also as stipulated in RFQ. 19. Mr. Arvind Verma, learned Senior Counsel appearing for the petitioners has made an endeavour to dislodge the contention of learned counsel for the opposite party referring to Auditors’ Certificate in Anneuxre-6, where it has been specifically mentioned that capacity of the Gare Palma IV/2 and IV/3 coal mine is 6.25 MTPA. Accordingly, it was certified that the year wise coal production and over burden (OB) removal, extractable reserves of the previously allotted coal blocks and mine peak production capacity as per the latest approved mine plan dated 03.08.2009 of Gare Palma IV/2 and IV/3 is 6.25 MTPA. 20. However, we are not delving into such issue in the peculiar circumstances of the case that when minimum requirement as per the terms and conditions of RFQ Section 5.2.1 is 7 MTPA, admittedly the petitioners through affiliate route have only the annual capacity of 6.25 MTPA and, more so the condition stipulated in the RFQ, that the bidder must have been awarded a mining contract for development and operation of a single coal/lignite mine, has to be adhered to. We refrain from making any observation whether the petitioners have got a single coal/lignite mine, as per the requirement of Section 5.2.1, or not. This factual aspect can only be considered by the tender inviting authority and not by the writ Court. 21. Relying upon the judgment of Afcons Infrastructure Ltd. (supra), the opposite party raised an objection that the writ application is not maintainable due to non-joinder of parties. It is contended that in paragraph 15 of the counter affidavit it has been specifically mentioned that in terms of the order dated 21.03.2017 of this Court, the petitioners had submitted their bid pursuant to RFQ dated 12.12.2016. Apart from the petitioners, six other bidders, namely, (1) Triveni-Sainik Consortium, (2) BGR Mining & Infra Pvt. Ltd., (3) Thiess India Pvt. Ltd., (4) Montecarlo-Mahalaxmi Consortium, (5) Essel Mining & Industries Ltd., and (6) Adani Enterprises Ltd. have also submitted their bids and the same was within the knowledge of the petitioners. Hence, in absence of those parties the writ application is not maintainable. Hence, in absence of those parties the writ application is not maintainable. In paragraph 18 of the judgment of Afcons Infrastructure Ltd. (supra), the Supreme Court, while concluding, pointed out that the High Court was of the opinion that the eligible bidders were not entitled to be either impleaded in the petition filed in the High Court by the ineligible bidder GYT-TPL JV or were not entitled to be heard. But the Supreme Court opined that it is to avoid such a situation that it would be more appropriate for the constitutional Courts to insist on all eligible bidders being made parties to the proceedings filed by an unsuccessful or ineligible bidder. Mr. Arvind Verma, learned Senior Counsel appearing for the petitioners states that by the time the petitioners approached this Court, it was not made known to the petitioners that who had participated in the process of RFQ. By way of counter affidavit filed by the parties this thing has been disclosed for the first time. Therefore, the petitioners are justified in not impleading the intending bidders as parties, pursuant to RFQ dated 12.12.2016. But, in our view, that by itself cannot be a ground for not impleading the bidders who have participated pursuant to RFQ and have been disclosed in the counter affidavit. In that view of the matter, keeping in view the ratio decided in Afcons Infrastructure Ltd. (supra), the writ application suffers from non-joinder of parties. 22. In Tata Cellular (supra), the apex Court in paragraph 84 of the judgment has held as follows: “84. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender : 1. It must be unconditional. 2. Must be made at the proper place. 3. Must conform to the terms of obligation. 4. Must be made at the proper time. 5. Must be made in the proper form. 6. The person by whom the tender is made must be able and willing to perform his obligations. 7. There must be reasonable opportunity for inspection. 8. Tender must be made to the proper person. 9. It must be of full amount” Considering the various judgments of the Supreme Court, in paragraph 113 it further held as follows: “113. 6. The person by whom the tender is made must be able and willing to perform his obligations. 7. There must be reasonable opportunity for inspection. 8. Tender must be made to the proper person. 9. It must be of full amount” Considering the various judgments of the Supreme Court, in paragraph 113 it further held as follows: “113. The principles deducible from the above are : (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the construct is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a airplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” Applying the above ratio and principle laid down by the Supreme Court to the present context, the decision must not only be tested by the application of Wednesbury principle of reasonableness including its other facts pointed out above, but must be free from arbitrariness, not affected by bias or actuated by mala fides. In the present case, admittedly the petitioners have not alleged any mala fides or bias against the opposite party, while fixing the conditions in Section 5.2.1. 23. In the present case, admittedly the petitioners have not alleged any mala fides or bias against the opposite party, while fixing the conditions in Section 5.2.1. 23. The scope and power of the Court to interfere with a contractual matter is well justified in various judgments of the apex Court, namely, Tata Cellular v. Union of India, AIR 1996 SC 11 ; Master Marine Service (P) Ltd. v. Metcafe & Hodgkinson (P) Ltd., (2005) 6 SCC 138 ; Sterling Computers Ltd. v. M & N Publications Ltd., (1993) 1 SCC 445 ; M/s. B. S. N. Joshi and Sons Ltd v. Nair Coal Services Ltd., AIR 2007 SC 437 ; Reliance Airport Developers (P) Ltd. v. Airports Authority of India, (2006) 10 SCC 1 ; Siemens Public Communication Networks Private Limited and another v. Union of India and others, (2008) 16 SCC 215 . In M/s Star Enterprises and others v. City and Industrial Development Corporation of Maharashtra Ltd. and others, (1990) 3 SCC 280 , the apex Court in paragraph 10 of the judgment held as follows: “10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so.” 24. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there be any specific justification not to do so.” 24. In Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601 , the apex Court in paragraph 7 of the judgment ruled as follows: “7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Art, 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'. 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.” 25. In Mahabir Auto Stores and others v. Indian Oil corporation and others, AIR 1990 SC 1031 , the apex Court observed in paragraph 12 of the judgment as follows: “12. It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. Reliance in this connection may be placed on the observations of this Court in M/ s. Radha Krishna Agarwal v. State of Bihar, (1977) 3 S.C. 457: ( AIR 1977 SC 1496 ). It appears to us, at the outset, that in the facts and circumstances of the case, the respondent-company IOC is an organ of the State or an instrumentality of the State as contemplated under Article 12 of the Constitution. The State acts in its executive power under Article 298 of the Constitution in entering or not entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercises of power. Therefore, the action of State organ under Article 14 can be checked. See M/s. Radha Krishna Agarwal v. State of Bihar at p. 462 (at SCC) : (at p. 1499-1500 of AIR) (supra), but Article 14 of the Constitution cannot and has not been construed as a charter for judicial review of State action after the contract has been entered into, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. In a situation of this nature certain activities of the respondent company which constituted State under Article 12 of the Constitution may be in certain circumstances subject to Article 14 of the Constitution in entering or not entering into contracts and must be reasonable and taken only upon lawful and relevant consideration, it depends upon facts and circumstances of a particular transaction whether hearing is necessary and reasons have to be stated. In case any right conferred on the citizens which is sought to be interfered, such action is subject to Article 14 of the Constitution, and must be reasonable and can be taken only upon lawful and relevant grounds of public interest. Where there is arbitrariness in State action of this type of entering or not entering into contracts, Article 14 springs up and judicial review strikes such an action down. Where there is arbitrariness in State action of this type of entering or not entering into contracts, Article 14 springs up and judicial review strikes such an action down. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, in such monopoly or semi-monopoly dealings, it should meet the test of Article 14 of the Constitution. If a Governmental action even ,in the matters of entering or not entering into contracts, fails to satisfy the test of reasoned able-ness, the same would be unreasonable. In this connection reference may be made to E. P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 : ( AIR 1974 SC 555 ); Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : ( AIR 1978 SC 597 ), Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 : ( AIR 1981 SC 487 ); R. D. Shetty v. International Airport Authority of India, (1979) 3 SCC 489 : (AIR 1979 SC 162) and also Dwarkadas Marfatia and Sons v. Board of Trustees .of the Port of Bombay, (1989) 3 SCC 293 : ( AIR 1989 SC 1642 ). It appears to us that rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens in a situation like the present one. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into. a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination in the type of the transactions and nature of the dealing as in the present case.” Similar view has also been taken by the Supreme Court in Educomp Datamatics Ltd. and Michigan Rubber (India) Limited (supra) and also by this Court in M/s. D.K. Engineering and Construction v. State of Odisha and another, 2016(II) ILR-CUT-515;. In view of the law discussed above, this Court observed that the rights of citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination in the type of the transactions and nature of the dealing, as in the present case. Therefore, this Court has every justified reason not to exercise the power of judicial review in the present context. 26. In Central Coalfields Limited (supra), while considering the form of Bank Guarantee prescribed in bid documents, which is an essential requirement, the rejection of the bid not accompanied by the Bank Guarantee in form prescribed in the bid documents treating as non-responsive in view of the general terms and conditions governing the bid process, the Supreme Court held that it is not arbitrary, unreasonable, or perverse and not open to judicial review. Applying the same to the present context, if Section 5.2.1 stipulates a condition and the same is not actuated with mala fides or bias, the same cannot be termed as arbitrary, unreasonable or perverse and, as such, the same is not open to judicial review. 27. Reliance was placed by the learned Senior Counsel appearing for the petitioners on Chittaranjan Mishra (supra). Factually, the said case is distinguishable from the present one, in view of the fact that in the said case the reason of enhancement of the security deposits, E.M.D. and Solvency Certificate, as had been indicated in the tender call notice, had not been indicated anywhere save and except reliance being placed on the letter of the Commissioner-cum-Secretary to Government, School and Mass Education Department, Odisha in Annexure-E/3 dated 13.03.2015 and to obligate the same, reply had also been given by the petitioner therein in the rejoinder affidavit dated 17.07.2016 explaining the position that how misappropriation, pilferage and shortage of rice had been safeguarded by the action of the State authorities. Therefore, in the said case it was held that imposition of conditions in the tender document depriving the small transport contractors to participate in the bid amounts to arbitrary and unreasonable exercise of powers by the authority. Therefore, in the said case it was held that imposition of conditions in the tender document depriving the small transport contractors to participate in the bid amounts to arbitrary and unreasonable exercise of powers by the authority. More so, it was held that such conditions had been incorporated with a mala fide intention to favour a group of persons having single tender in respect of the areas to which transportation was to be made and, as such, time and again, the apex Court has deprecated the practice of awarding contract in favour of single tender. In the said case it was also clarified that the Government and their undertakings must have a free hand to set the term of the condition of the tender in exercise of such powers and that once the conditions of the tender have been fixed, the Court cannot interfere in exercise of judicial review under Article 226 of the Constitution of India. But a rider has been given that where conditions, so stipulated are arbitrary, discriminatory and mala fide and based on bias, in that case the Court can interfere. Since no mala fide or bias has been raised in the present application, the judgment of this Court in Chittaranjan Mishra (supra) is distinguishable. 28. In Dinesh Engineering Corporation (supra), on which reliance was also placed by the learned Senior Counsel appearing for the petitioners, the apex Court, having found that by putting a condition it would lead to monopoly in the hands of a group of persons capable of giving higher EMD, security deposits and solvency certificates, deprecated such monopoly of a particular company. But the facts of the said case are not applicable to the present context. In view of the fact that, in the instant case, there are six bidders pursuant to the RFQ, the question of monopoly does not arise. Thereby, the said judgment is also distinguishable. Similarly, the ratio of Nagarjuna Trust Company (supra) has also no application. As such, each case has to be considered on the basis of its own facts and circumstances unless and otherwise the ratio laid down has got any application to the facts of the present context. More so, the judgments so referred to in Dinesh Engineering Corporation and Nagarjuna Trust Company (supra) have no application to the present context. 29. As such, each case has to be considered on the basis of its own facts and circumstances unless and otherwise the ratio laid down has got any application to the facts of the present context. More so, the judgments so referred to in Dinesh Engineering Corporation and Nagarjuna Trust Company (supra) have no application to the present context. 29. Considering the matter factually and legally, as discussed above, we are of the considered view that the writ application merits no consideration and, as such, the same is hereby dismissed. No order to cost.