JUDGMENT : Devan Ramachandran, J. A call for bids, call for tenders or invitation to tender is a procedure for generating competing offers from different bidders looking to obtain award of business activity in work supply and service contracts. Etymologically, the word 'tender' has its beginnings from the old French 'tendere' which means 'to offer'. Historically, the name of this phrase originated from the practice of merchant ships, arriving at a port of call, posting notices describing the goods that they intend to sell or buy. This notice was usually delivered ahead of the ships by a tender - a small boat, and hence the process obtained the present terminology 'tender'. 2. Since the invitation to bid is made by the beneficiary or the awarder of a contract, it is essentially his or its intentions and wishes, that will gain acme importance. Generally, therefore, the literal interpretation and meanings to the various terms and conditions in the invitation to tender will obtain eminence and the courts are usually enjoined to give effect to the particular object and intention shown in the tender document rather than deviating from it. That being said, the awarder of the contract, who floats the tender, is also equally obligated not to deviate from the terms of such tender and to strictly comply with it, while making his choice through the process of tendering because what was intended by such process was to obtain the best possible bids based on the information given in such tender. 3. We have said the above as a preface because we are certain in our mind that while exercising jurisdiction under Article 226 of the Constitution of India, it is not within our province to examine the intentions and requirements of the tender, as if we are sitting in some kind of an appellate examination over it but only to see to it that the award of the contract is made in compliance with the terms of the tender invitation, giving strict effect to the various conditions in it, so that those persons who have made the tender, in pursuance to the notification, are not in any manner prejudiced or detrimentally affected by a unilateral change in the manner or interpretation of the terms of the tender, even by the awarder himself. Our examination is confined only to that extent and nothing more. 4. Our examination is confined only to that extent and nothing more. 4. W.A.Nos.1980, 1999, 2029, 2133 and 2155 of 2017 have been filed by the various appellants against the judgment of the learned single Judge dated 25.8.2017 in W.P.(C) Nos.233 of 2017 and 356 of 2017. All these appeals, except W.A.No.2155 of 2017, which has been filed by the Bharat Petroleum Corporation Ltd. (hereinafter referred to as “the BPCL” for short), has been admitted and pleadings are complete. W.A.No.2155 of 2017 has not been yet formally admitted, but with the consent of the learned counsel appearing for the parties on either side, we proceed to dispose it of also by this judgment. 5. Even though we are proposing to dispose of all the above writ appeals jointly in this judgment, we deem it appropriate, for the sake of convenience, to treat W.A.No.2155 of 2017 as a lead case, since it has been filed by the Bharat Petroleum Corporation Limited, a Government of India undertaking, which is the awarder of the contract. We, therefore, feel it apposite to decide the various issues raised in these cases, relating to the conditions of the tender, vis-a-vis the intention that was behind it while it was floated by the awarder, the BPCL, treating the appeal filed by it as the main case. 6. We have heard Sri. P. Gopinath Menon, learned counsel appearing for the appellants in W.A. No.2155 of 2017; Sri. G. Sreekumar (Chelur), learned counsel appearing for the appellant in W.A.No.1999 of 2017, Sri. Saiby Jose Kidangoor, learned counsel appearing for the appellant in W.A. No.1980 of 2017; Sri. S.B. Premachandra Prabhu, learned counsel appearing for the appellants in W.A.Nos.2029 of 2017 and 2133 of 2017; learned Senior counsel Sri. K. Jaju Babu assisted by Sri. Brijesh Mohan; Sri. Kaleeswaram Raj and Smt. Surya Binoy, learned counsel appearing for various respondents in various appeals, who were all the petitioners in the writ petitions. 7. The woodcut of the facts involved in these cases is that the BPCL published a notice inviting tender from tanker-lorry owners for the work of road transportation of bulk petroleum products. The notification has been produced on record as Ext.R1(a) and it provides for a two bid system, ie., technical (pre-qualification) bid and price bid. 7. The woodcut of the facts involved in these cases is that the BPCL published a notice inviting tender from tanker-lorry owners for the work of road transportation of bulk petroleum products. The notification has been produced on record as Ext.R1(a) and it provides for a two bid system, ie., technical (pre-qualification) bid and price bid. As per the terms of the tender notification, the technical (pre-qualification) bid was to be opened on a scheduled date and time and the same to be then subjected to an evaluation, after which the qualified tenderers would be permitted to the next stage of the tender, namely, the price bid. The price bids would thereafter be opened and the persons who have made the bids will be listed in ascending order, as per their ranking, which means to say that the tenderer with minimum financial outgo to the BPCL will be ranked L1 and the tenderer with the next lowest outgo will be ranked L2 and so on. Ext.R1(a) notification makes it clear that the list will include all the technically qualified tenderers in the ranking, based on the rates quoted by them, along with the number of tanker lorries offered by them. The notification further provides that in case, for a particular ranking in respective tanker lorry capacity, if the tanker lorries offered are more than the requirement, then the tanker lorries will be taken based on a particular order of priority mentioned therein. The BPCL has also covenanted in the notification that it will offer an estimated transportation rate which they call the Bench Mark Rate (BMR) for each sector and that the tenderers will have to quote plus or minus 5% of such estimated BMR with an express caution that the tenderers who quote beyond this range will stand disqualified and that their tenders shall be rejected. 8. The various respondents in these appeals, who are the writ petitioners, claim themselves to be Small and Medium Enterprises within the sweep of the definition of such enterprises in the Micro, Small and Medium Enterprises Development Act, 2006 (hereinafter referred to as “the Act” for short). The petitioners say that as per Ext.R1(a) there is a clear preference offered to them which, in fact, is based on the Public Procurement Policy declared by the Ministry of Micro Small and Medium Enterprises on 23.3.2012. The petitioners say that as per Ext.R1(a) there is a clear preference offered to them which, in fact, is based on the Public Procurement Policy declared by the Ministry of Micro Small and Medium Enterprises on 23.3.2012. The petitioners point out to clause No.10 under the head “Reservation” in internal page 15 of Ext.R1(a) to assert that 20% of the total quantity of tanker lorries notified therein, after reducing the reservation of 15% and 7½% for members of Scheduled Castes and Scheduled Tribes respectively, should be earmarked for them in preference to others, in the manner shown therein. Since the entire case of the writ petitioners are edificed on the specific construction of clause 10 under the head “Reservation” in page 15 of Ext.R1(a) we deem it appropriate to extract the same as under, so as to enable a full reading : “10. Confirmation on applicability of “micro, small and medium enterprises development act, 2006 (MSMED Act 2006)” (a) SELECTION CRITERIA: Selection of vendor [1 No; i.e. L-1 (for 100% Qty.)] will be based on “lowest financial outgo of the Corporation over the period of contract”; and also as described below; under (b-1), (b-2) and (c). (b) 1. In line with “Public Procurement policy for Micro and Small Enterprises (MSEs) order 2012”, 20% of the total quantity shall be earmarked for procurement from MSEs, with a sub target of 20% (i.e. 4% out of 20%) shall be further earmarked for procurement from MSEs owned by Scheduled Caste or the Scheduled Tribe Entrepreneurs. Provided that, in the event of failure of such Micro and Small Enterprises to participate in tender process or meet tender requirements and L-1 price, 4% sub-target for procurement earmarked for Micro and Small Enterprises owned by Scheduled Caste or Scheduled Tribe entrepreneurs shall be met from other Micro and Small Enterprises. 2. The above provision will be subject to MSEs quoting price within price band (L-1+15%); i.e. L-1 plus 15% and bringing down their price to L-1 in a situation where the L-1 price is from someone other than an MSEs. In case of more than one such MSEs, the supply shall be shared proportionately from the MSEs party. Necessary certificate issued by Authorized body under the Ministry of Micro, Small & Medium Enterprises shall be valid as on the date of opening of the tender. In case of more than one such MSEs, the supply shall be shared proportionately from the MSEs party. Necessary certificate issued by Authorized body under the Ministry of Micro, Small & Medium Enterprises shall be valid as on the date of opening of the tender. All the technical specifications/techno commercial terms and conditions and the pre qualification criteria are also to be fulfilled by the MSEs. In the event of failure of such Micro and Small Enterprises to participate in tender process or meet tender requirements and L-1 price, the total quantity shall be given to non MSE L1 bidder. Clarifications if any, on this matter is to be obtained from our office. (C) In case of situation (B-1) and (B-2) above, bifurcating of 20% quantity; will be allocated out of 100% of the tendered qty. In such a situation, BPCL shall place two separate POs (one P. O. each on L-1, “Non-MSE-Vendor” for 80% of the tendered quantity and another P.O. on “MSE-Vendor” falling in the Price Bank of (L-1+15%); i.e. L-1 plus 15% and also subject to bringing down their price to L-1; for the remaining 20% of the tendered quantity). In case of more than one “MSE-Vendor” falling in the Price Band of (L-1+ 15%); i.e. L-1 plus 15% and also subject to bringing down their price to L-1; the supply shall be shared proportionately from the earmarked quantity, as described in (B-2) above. In such a situation additional POs shall be placed by BPCL. Further, it is also to be noted that in case of MSEs owned by Scheduled Caste or the Scheduled Tribe Entrepreneurs, BPCL shall place an additional P.O. on “MSE-SC-ST”. However, qualifying terms and conditions for placement of P.O. and the quantity allocation shall be as described in (B-1) and (B-2) above. It is to be noted that choice of delivery locations will not be given to MSE party allocated 20% of the tendered quantity vide purchase preference clause.” 9. However, qualifying terms and conditions for placement of P.O. and the quantity allocation shall be as described in (B-1) and (B-2) above. It is to be noted that choice of delivery locations will not be given to MSE party allocated 20% of the tendered quantity vide purchase preference clause.” 9. The writ petitioners, who will hereinafter be called the Medium and Small Enterprises (MSE for short), thus assert that in accordance with the public procurement policy for Micros Small and Medium Enterprises (MSME), 20% of the total quantity notified in Ext.R1(a), after reducing the reservation as noticed above to SC and ST communities, will have to be specifically earmarked to them, on condition that their quote is within a range of 15% over the quote made by the lowest tenderer, namely L1. They avouch that, this 20% is a special reservation in their favour and that with respect to the balance 80% of the available volume, they will have to compete with others as if they are from the open market. The BPCL, however, took the stand that as per the terms of 'Reservation' in Ext.R1(a), the MSEs can compete only the 20% quota earmarked for them and that with respect to the balance, they will not be entitled to compete at all, since that is meant only for 'open category' candidates, who do not fall under the category of MSEs. In effect, the stand of the BPCL is that, once the writ petitioners declare themselves to be an MSE, they would only be entitled to compete only within the 20% 'quota' set apart for them under Ext.R1(a) and not with respect to the rest, which is allegedly a quota for general candidates. This interpretation of BPCL to Ext.R1(a) is what which has been essentially impugned by the writ petitioner in various writ petitions. 10. This interpretation of BPCL to Ext.R1(a) is what which has been essentially impugned by the writ petitioner in various writ petitions. 10. We can see from the judgment of the learned single judge, called into question herein, that there submissions have been assessed in detail and that the learned judge has concluded that even though there are specific 'quotas' for MSE and general candidates as per Ext.R1(a), the MSEs would also be entitled to be considered against the unfilled allotments which is to revert to the general category and that the writ petitioners who meet all criteria for consideration in the general quota are entitled to be considered against the said 'quota' also after including the reverted allocations also in the general 'quota'. In effect what we see from the judgment impugned in these appeals is that, the learned single Judge has given an imprimatur to the concept of 'quotas' as has been alleged by the BPCL in Ext.R1(a) notification. 11. We must, however, immediately say that on our examination of the issues, which we have done with great amount of care, we find that the concept of 'quotas' in Ext.R1(a) is itself an anachronism, going by the way it has been drafted and worded. We say this, because as has been already extracted above, clause 10 under the head 'Reservation' in Ext.R1(a) does not talk about a quota, but it only says that, in tune with the Procurement Policy for Micro and Small Enterprises, 20% of the total quantity will be earmarked for procurement from MSEs, of course with a sub target of 20% for SC and STs out of it, provided that the MSE quotes within a range of 15% over the lowest tenderer. What is, therefore, discernible from this clause is that if an MSE has quoted within a price band of 15% from the lowest tenderer, he will be entitled to the award of contract, but on an additional condition that he scales down his offer to the quote made by the lowest tenderer. This is, therefore, not a quota, but is effectively a benefit or privilege given to an MSE to scale down his quote to the level of L1, so as to give him a preference for such allotment within the 20% quantity that is set apart for such category. This is, therefore, not a quota, but is effectively a benefit or privilege given to an MSE to scale down his quote to the level of L1, so as to give him a preference for such allotment within the 20% quantity that is set apart for such category. It is also evident from the stipulations of the said clause that there is no competition per se between the various MSEs and that the competition is actually between the various MSE and the general candidates. This is because sub clause 2 of clause 10 referred above, mentions that the provision for preference to MSEs will be limited where an MSE quotes 15% over L1 and brings it down to the prize of L1 where the L1 is to someone than an MSE. 12. It, therefore, becomes perspicuous that if, as contended by BPCL, 20% is construed be a quota, then it should mean that all the tenderers under that quota will have to be MSEs and no one else. This is the only way the concept of quota will work. Thus, if 20% of the quantity is construed as a separate 'quota', then no one other than an MSE will be entitled to bid in that 'quota' and, therefore, the provisions in Ext.R1(a), which stipulate that the preference to an MSE, will operate only in the case of a lower bid being made by some one other than an MSE, would become completely redundant and nugatory. Obviously, therefore, even as per Ext.R1(a), 20% of the procurement is not intended to be a 'quota', it is intended to be a specified quantity where the MSEs will get a preference over a non MSE, provided he quotes within a price band of 15% over such lower quote. This necessarily pre-supposes a competition between the general category and an MSE, because if a general category candidate does not quote lower than an MSE, then these provisions would not apply at all, since the 20% quantity obviously have to be offered to the MSE, if its quote is the lowest. 13. The position becomes clear more luculent, once we see that the provisions relating to preference is circumscribed by a condition that the quote of the MSE should be within a 15% price band of L1. 13. The position becomes clear more luculent, once we see that the provisions relating to preference is circumscribed by a condition that the quote of the MSE should be within a 15% price band of L1. In other words, if the quote of the MSE is over 15%, then the benefit of the preference would not go to it, what ever be the other stipulations in Ext.R1(a). This clearly indicates that what is earmarked as 20% of the quantity is not a 'quota', because if all the tenders from MSEs are over 15% of L1, then such quantity will also have to go to the general category. 14. The converse position namely, whether the balance of the quantity, after the 20%, would be available to the MSEs to compete with the others, notwithstanding the fact that they have a preference in the 20% quantity, from the touchstone of the reasoning alone have to be answered in the affirmative. It is, however, ineluctable that when they compete with the rest, they will obtain no preference over the general candidates and they will have to compete like any other candidate. There again it becomes clear that, the remaining quantity is also not a 'quota' in which the MSEs are excluded. 15. The concept of 'quota' would come into play only if the BPCL is able to establish and show to us that these two are water type compartments where, in the 20% 'quota' only the MSE can apply and in the rest, only non-MSEs can apply. A reading of Ext.R1(a) shows to the contrary and, therefore, would strike at the root of the submissions made by Sri. Gopinath Menon, learned counsel appearing for the BPCL. We do not see any such quotas being provided for in the notification and for such reason, we are of the view that the learned single judge was not accurate in concluding that there are well earmarked quotas within Ext.R1(a) notification. 16. That being said, we note that it is the singular contention of the writ petitioners that, since there are no quotas, as has been claimed by BPCL, they have the right to compete with the general candidates in the rest of the quantity other than 20%, which is earmarked for their preference, under the provisions of the tender notification. 16. That being said, we note that it is the singular contention of the writ petitioners that, since there are no quotas, as has been claimed by BPCL, they have the right to compete with the general candidates in the rest of the quantity other than 20%, which is earmarked for their preference, under the provisions of the tender notification. As said above, the provisions relating to preference to MSEs are governed by the Public Procurement Policy, a copy of which has been appended to the writ petition as Ext.P10, formulated by the Union of India under the provisions of the Micros Small and Medium Enterprises Development Act, 2006. The fundamental objectives of the Act is to facilitate the promotion and development and enhancing the competitiveness of small and medium enterprises. These objectives have found voice in the statute itself in Section 11 thereof, which reads as under : 11. Procurement preference policy-For facilitating promotion and development of micro and small enterprises, the Central Government or the State Government may, by order notify from time to time, preference policies in respect of procurement of goods and services, produced and provided by micro and small enterprises, by its Ministries or departments, as the case may be, or its aided institutions and public sector enterprises. 17. The desideratum of the policy and the requirements of Ext.R1(a) are hinched on these objectives and hence it will be inequitable to contend that anything contained in the Public Procurement Policy should detrimentally effect the Small and Medium Scale Enterprises. If we accept the contentions of Sri. Gopinath Menon, learned counsel appearing for the BPCL, that the SME cannot competent in the rest of the quantity, except 20% earmarked for them, then this will amount to complete inequity, since the privilege that is offered to an SME, through the public procurement policy and provisions of the Act, would completely be rendered nugatory. The benefit offered to the SME is, on one hand, to compete with the general category candidates while giving them a preference with respect to 20% of the quantity, where they can meet or they can match the quote given by the lowest tenderer from the general quota. The benefit offered to the SME is, on one hand, to compete with the general category candidates while giving them a preference with respect to 20% of the quantity, where they can meet or they can match the quote given by the lowest tenderer from the general quota. Apart from the 20% quantity that is earmarked for such purpose, the SMEs would get no benefit or preference in the rest of the quantity and they will have to compete as if they are from the general category itself. It is therefore, impossible to comprehend that merely because a tenderer is an SME, it would not get the benefit of competing with the general quota, because, they have been given benefit in the 20% of the quantity, where they are offered a preference. This is not the way the Public Procurement Policy or the provisions of the Act would operate nor is this the way it is intended to operate. 18. While dealing with contracts and its interpretations, the jurisdiction of this court, acting under Article 226 of the Constitution of India, is extremely constrained and we are certainly conscious that our path will have to be imperatively circumscribed by the limitations that are well recognized. Our examination into these matters are strictly guided by the various judgments of the Honourable Supreme Court of India, wherein, the limitations and the perimeter of jurisdiction and its exercise are clearly declared and enumerated. In Joshy Technology International Inc. v. Union of India & Others [ (2015) 7 SCC 728 ], the Hon'ble Supreme Court, after a survey of the various earlier judgments, enumerated the categories of cases, where it will be justified for courts to enter into examination in the area of contracts. Several conditions have been prescribed by the Hon'ble Court for this and primary among them, being that courts cannot examine a contractual issue, unless the action has some public law character attached to it. Their Lordships in the said judgment have also cautioned that if there are serious disputed questions of facts, which are of complex nature and require oral evidence, then courts shall generally keep away from such examination. Their Lordships in the said judgment have also cautioned that if there are serious disputed questions of facts, which are of complex nature and require oral evidence, then courts shall generally keep away from such examination. We are aware of the clear restrictions on our exercise of power in this area, but the fact of this case would justify such an examination because what is in contest in this case are not facts, but the manner of interpretation of the terms of the tender notification, which are more akin to questions of law. We say this because, the contractual obligations and liabilities between the parties being confined expressly by the terms of Ext.R1(a), the manner of its interpretation of by either of the sides essentially would partake the character of questions of law. 19. Once we find that the interpretation given by BPCL to the terms of their own document is not the way it should have been done and when we find that the way in which a reasonable tenderer would have construed those terms to be different from the way the BPCL now makes it to be, it would certainly be within the jurisdiction of this court to interpret the relevant provisions to the contract as per law. We hasten to add that all that we have done in this judgment is to this extent and nothing more. We are not in any manner meaning to interfere with the contractual obligations and liabilities of the parties, but we have only made an examination as to how the relevant provisions of Ext.R1(a) will stand to judicial scrutiny and to judicial interpretation. 20. Viewed from the angle above, we are firm in our mind, for the reasons afore, that the relevant clauses in the tender notification would not concede to the contention of the BPCL that there are earmarked quotas for MSEs and non-MSEs. This is not the interpretation that would be possible even from a mere reading of the provisions of Ext.R1(a) and we are certain that an MSE would be entitled to the preference of 20% of the quantity in the manner stipulated in the contract itself and it was, therefore, entitled to compete in the rest of the quantity as if they are not an MSE, but a general candidate. 21. 21. Once our view as above is indited, we are then drawn to consider the kind of consequential directions that have to be made with respect to the parties, based on the stipulations in Ext.R1(a). Since our view, as recorded above, is that, there are no water type compartments or quotas with respect to MSEs and non-MSEs and since we are already found that the 20% quantity earmarked for MSE is not a quota, but a quantity in which the MSEs will get a preference, based on the specific conditions contained therein, it would be necessary for the BPCL now to reassess all the qualified price bids taking that there are no quotas between two categories. 22. We clarify that our observations in this judgment would not in any manner effect or prejudice the rights of the 15% and 7½ % quotas, that are earmarked from the total quantity for SC and ST tenderers since this is not a matter which is in dispute in this case. 23. In respect to the balance, the BPCL will have to identify 20% of the quantity and offer it to an MSE provided his offer is within a 15% of the lowest general category tenderer. 24. As regards the rest, the BPCL will have to evaluate the price bids of all the willing tenderers both MSEs and others, tenderers and make a comparative assessment of all such bids, without giving any special benefit to the MSEs, but treating them like others. In other words, all the tenderers in the rest of the quantity will be considered as open category tenderers, including the MSEs and their evaluation will be done as if they are competing on an equal footing. 25. We find that from the facts in W.P.(C) No.2969/2017, which is referred to in paragraph 11 of the judgment of the learned single judge, there is one factual situation which will have to be noted particularly. We are aware that, there is no appeal against the judgment in that writ petition. However, we deem it necessary to make some observations about the same because that is a case in which the writ petitioner had availed the benefit of being an MSE alone without offering to compete along with the general candidates. We are aware that, there is no appeal against the judgment in that writ petition. However, we deem it necessary to make some observations about the same because that is a case in which the writ petitioner had availed the benefit of being an MSE alone without offering to compete along with the general candidates. Presumably, this was done because he was under the impression, as is also the contention of BPCL, that the two categories are water type quotas and that he is entitled to compete only in the 20% 'quota' and not in the rest. This impression of the petitioner is clear from the fact that he had applied for exemption from EMD to obtain the benefits of the preference under the 20% quantity, without offering himself for competition under the rest of the quantity, whereas, the petitioners in the other writ petition who are also MSEs had, in fact, paid the EMD without seeking waiver of the same. However, in view of our findings above, the petitioner will also be eligible, if he is so desirous, to redeposit the EMD, so as to enable him to be considered in the rest of the quantity other than the 20% in which the SMEs obtain preference. If the petitioner makes such a request to the BPCL, it will be considered appropriately by the BPCL in terms of our conclusions above. 26. In the compendium of our observations above, we dispose of these writ appeals directing the BPCL to undertake the process of evaluation of the financial bids afresh, complying with the observations and directions as above, as expeditiously as possible, but not later than six weeks from the date of receipt of the copy of the judgment. We fix this time frame also at the request of Sri. Gopinath Menon, learned counsel for the BPCL, who says that a time frame is required to be fixed so as to enable them to complete the process expeditiously and to avert action for contempt that has initiated against them by the respective writ petitioners. 27. We fix this time frame also at the request of Sri. Gopinath Menon, learned counsel for the BPCL, who says that a time frame is required to be fixed so as to enable them to complete the process expeditiously and to avert action for contempt that has initiated against them by the respective writ petitioners. 27. Needless to say, the benefit of this judgment will be applicable to all the tenderers, MSEs or otherwise and they will all entitled to compete, in the 20% preference quantity as also in the rest, with the MSEs being entitled to preference, as provided in Ext.R1(a), with respect to the 20% earmarked quantity where such preference applies. These appeals are thus ordered.