ORDER : The petitioner has filed the above writ petition to issue a writ of declaration, declaring that the pre-qualification criteria as specified in Condition Nos. I, II(3), II(5) of the Notice Inviting Tender dated 14.10.2016, issued by the respondent Corporation, as arbitrary, unreasonable, irrational and null and void. 2. The brief case of the petitioner is as follows:- (i) According to the petitioner, they are doing Oil Tanker transporting business for the past several years and they are the existing contractor of the respondent Oil Corporation. The Petitioner Transport was awarded contract by the respondent corporation for the period of two years with effect from 10.01.2014 and extendable for one more year at the sole discretion of respondent corporation. On 14.10.2016, the respondent corporation issued Notice Inviting Tender, thereby invites e-tenders under two bid system from tank trunk owners for award of the contracts for road transportation of bulk petroleum products with effect from 16.12.2016 or from the date to be decided at the discretion of the company for the period of three years with option for extension upto two more years at the discretion of the company. (ii) The respondent company prescribed the following conditions in its notice inviting tender dated 14.10.2016:- I. Earnest Money Deposit (EMD) of Rs.10,00,000/- (Rupees ten lakhs only) shall be paid online only except MSME having valid registration certificate as MSME rendering transport services. II. Eligibility criteria 3. Maximum three transporters/vendors/ Logistic Company shall be issued work order without any details of tank truck numbers. Single work order will be given for all locations (Chennai based locations, Coimbatore, Tuticorin and Narimanam terminals) together. This is a combined tender for all four locations of Tamil Nadu State Office together. Tenderer has to quote for all the locations. Narimanam Terminal will be transporting LSHS, hence, suitable Fit Tank Trucks for transportation of LSHS are to be provided by the bidders. In addition to the above FO Transportation Fit Trucks are to be provided in other three locations. 5. Product shall be released to the transporter against security deposit. The amount of security deposit with IOCL shall always be more than the value for the product released to the transporter. The security deposit can be increased or decreased by transporter depending upon work load. However, minimum security deposit of Rs.50,00,000/- (Rupees fifty lakhs only) will always be maintained by the transporter with IOCL. The amount of security deposit with IOCL shall always be more than the value for the product released to the transporter. The security deposit can be increased or decreased by transporter depending upon work load. However, minimum security deposit of Rs.50,00,000/- (Rupees fifty lakhs only) will always be maintained by the transporter with IOCL. To illustrate the release of supplies against security E.g. in case security deposit with IOCL is Rs.10 crores for a particular transporter, at no point of time, value of the product in transit for that transporter should exceed Rs.10 crores as per HO approved note dated 29.01.2016. (iii) According to the petitioner, the respondent company introduced the above said three conditions for the first time in the above said Notice Inviting Tender dated 14.10.2016. Further, according to the petitioner, the said conditions are discriminatory under Article 14 of the Constitution of India being aimed at excluding small transporters like the petitioner from the tender process and creating monopoly in favour of selected bidders to complete exclusion of all others in the field. (iv) According to the petitioner, the respondent company fixed the Earnest Money Deposit of Rs.5,000/- (Rupees five thousand only) per trunk in the existing contract and previous contracts. Now, suddenly, the respondent company increased the Earnest Money Deposit amount from Rs.5,000/- per trunk to Rs.10,00,000/- per bid. Similarly, the respondent company fixed a sum of Rs.8,00,000/- (Rupees eight lakhs only) as a security deposit in the previous contracts and now it has been increased to Rs.50,00,000/-. In these circumstances, challenging the said conditions the petitioner has filed the above writ petition. 3. The brief case of the respondent is as follows:- (i) According to the respondent a proposal for a uniform policy for transportation of Black Oil on delivered basis in order to tackle competition from other Oil Marketing Companies and to mitigate the issues, viz., i. Uncertainty in quantities and periodicity of black oil supply to a specific customer ii. Idling of the Tank Trunks (TTs) and its not utilization during contract period when there are no supplies. (ii) According to the respondent, in the existing policy, the respondent would engage the services of the transporter, who would provide specific Tank Trucks with registration particulars, which alone would be utilized for transportation. Idling of the Tank Trunks (TTs) and its not utilization during contract period when there are no supplies. (ii) According to the respondent, in the existing policy, the respondent would engage the services of the transporter, who would provide specific Tank Trucks with registration particulars, which alone would be utilized for transportation. Since the supply of black oil is unstable and volatile, the contracted trucks would be idling during the period when there are no supplies/demand. On the contrary, when the supply is huge, the contracted number of trucks is insufficient to meet the demands. (iii) In order to overcome the hardship faced on account of wide variation in demand, which is at times more than 500 - 600% and since the respondent is unable to have the contracted tank trucks at its disposal to face the huge demands, respondent has decided to award contract to a Transporter/Logistic Company instead of contracting with specific Tank Trucks wherein the Logistic Company would have to provide the required tank trucks within 48 hours of intimation. In this manner, there would be no idling of tank trucks and at the same time sudden huge demands would also be met by the Logistic Company. (iv) According to the respondent, the applicants, as a pre-qualification criteria, were required to deposit Rs.10,00,000/- (Rupees ten lakhs only) per contract. Further, the selected transporters are required to maintain the security deposit, which shall always be more than the product released to the transporter. The transporter shall increase and decrease the security deposit based on the product supplied for transportation, however, the transporter is required to maintain minimum security deposit of Rs.50,00,000/- (Rupees fifty lakhs only) always. (v) The e-tender was published on 14.10.2016, the pre-bid meeting was scheduled on 20.10.2016 and the date of submission of the bids was planned on 21.10.2016. The last date of submission of the bids was 11.11.2016 and the opening date of the tender documents was 14.11.2016. Subsequently, approval has been obtained for revising the last date of submission of the bids to 17.11.2016 and opening of the bids was 18.11.2016. Accordingly, corrigendum was given in e-tender portal due to request received from bidder sin the light of demonetization. Subsequently, approval has been obtained for revising the last date of submission of the bids to 17.11.2016 and opening of the bids was 18.11.2016. Accordingly, corrigendum was given in e-tender portal due to request received from bidder sin the light of demonetization. (vi) According to the respondent, the petitioner, without attending the pre-bid meeting held on 20.10.2016 and without raising any objection before the filing date, has filed the present writ petition on 08.11.2016 after the bids have been submitted by the other applicants. As stated in the tender, each transporters would be transporting black oil of the value nearly Rs.50,00,000/- (Rupees fifty lakhs only), therefore, in order to secure the goods transported, the respondent had incorporated the said condition to maintain a minimum security deposit of Rs.50,00,000/- (Rupees fifty lakhs only) always. The Earnest Money Deposit of Rs.10,00,000/- per bid was fixed as a pre-requisite in order to establish the financial ability and solvency of the bidders to take up the contract. The conditions mentioned in the tender notification cannot be termed as arbitrary and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. In these circumstances, the respondent prayed for dismissal of the suit. 4. Heard Mr. I. Abar Mohamed Abdullah, learned counsel appearing for the petitioner and Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the respondent. 5. Mr. I. Abar Mohamed Abdullah, learned counsel appearing for the petitioner submitted that the conditions imposed in the tender notification are arbitrary, irrational and violative of Articles 14, 19 of the Constitution of India. The learned counsel further submitted that the respondent in order to favour a few have imposed such conditions in the tender notification. In support of his contentions, the learned counsel relied upon a judgment reported in 2007(14) SCC 517 [Jagdish Mandal v. state of Orissa and others], wherein, the Apex Court held as follows:- “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made ‘lawfully’ and not to check whether choice or decision is ‘sound’. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached"; (ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 6. Countering the submissions made by the learned counsel appearing for the petitioner, Mr. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” 6. Countering the submissions made by the learned counsel appearing for the petitioner, Mr. T.R. Rajagopalan, learned Senior Counsel appearing for the respondent submitted that the petitioner cannot question the conditions of the tender and also submitted that the conditions were imposed in order to secure the goods transported and to establish the financial ability and solvency of the bidders to take up the contract. In support of his contentions, the learned counsel relied upon a judgment reported in 2012 (8) SCC 216 [Michigan rubber (India) Limited v. state of Karnataka and others], wherein the Hon'ble Supreme court held as follows:- "24. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached ; and (ii) Whether public interest is affected. If the answers are in the negative, then there should be no interference under Article 226." 7. On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side and also the judgments relied upon by the learned counsel on either side, it could be seen that the petitioner is challenging the terms of the tender notification in this writ petition. According to the petitioner, the conditions enhancing the amount payable towards Earnest Money Deposit and the security deposit were incorporated only to favour a few bidders and to exclude the small bidders like the petitioner. The respondent contended that the said clause were included in the tender notification in order to secure the goods transported and to establish the financial ability and solvency of the bidders to take up the contract. The respondent contended that the said clause were included in the tender notification in order to secure the goods transported and to establish the financial ability and solvency of the bidders to take up the contract. Further, the respondent has stated that the said pre-conditions and pre-qualifications for tender have been laid down to ensure that the contractor has the capacity to execute the work successfully. 8. It is settled position that the terms of the invitation to tender are not open to judicial scrutiny and the courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. 9. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional, must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor-made to suit the convenience of any particular person with a view to eliminate all others from participating in the bidding process. 10. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations. The Tendering Authority can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. 11. In matters of tenders, the duty of the court is to confine itself to the question of legality. Its concern should be, whether the Tender Inviting Authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice or reached a decision which no reasonable tribunal would have reached or abused its powers. 11. In matters of tenders, the duty of the court is to confine itself to the question of legality. Its concern should be, whether the Tender Inviting Authority exceeded its powers, committed an error of law, committed a breach of the rules of natural justice or reached a decision which no reasonable tribunal would have reached or abused its powers. Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work. The interference by the court is very restrictive since no person can claim a fundamental right to carry on business with the State. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. If a review of the administrative decision is permitted it would be substituting its own decision without the necessary expertise which itself may be fallible. 12. It is the prerogative of the Tender Calling Authority to impose pre-qualifying conditions in the tender process and therefore, the petitioner has no right to question the fixing of pre-qualification as the respondent has got every right and power to fix the pre-qualifications to suit the standards and performance of the contract. 13. In the case on hand, each transporters would be transporting Black Oil of the value nearly Rs.50,00,000/- (Rupees fifty lakhs only). Therefore, in order to secure the goods transported, the respondent had incorporated the said condition to maintain a sum of Rs.50,00,000/- as security deposit. 14. Similarly, to establish the financial ability and solvency of the bidders to take up the contract, they fixed the Earnest Money Deposit at Rs.10,00,000/- per bid. In order to overcome the hardship faced on account of wide variation in demand, which is at times more than 500 - 600% and since the respondent is unable to have the contracted tank trucks at its disposal to face the huge demands, the respondent has decided to award contract to a Transporter/Logistic Company instead of contracting with specific Tank Trucks wherein the Logistic Company would have to provide the required tank trucks within 48 hours of intimation. In this manner, there would be no idling of tank trucks and at the same time sudden huge demands would also be met by the Logistic Company. 15. In this manner, there would be no idling of tank trucks and at the same time sudden huge demands would also be met by the Logistic Company. 15. Though the petitioner has filed the writ petition challenging the terms of the tender, it is pertinent to note that they have not participated in the pre-bid meeting, which was held on 20.10.2016. If the petitioner is really aggrieved over these conditions, they could have participated in the pre-bid meeting and raised their objections with regard to those conditions. 16. Though there is no dispute with regard to the ratio laid down in the judgment relied upon by the learned counsel for the petitioner, since the facts and circumstances of the present case differs, the said judgment is not applicable. The judgment relied upon by the learned counsel for the respondent squarely applies to the facts and circumstances of the present case. 17. For the reasons stated above, I do not find any merits in the writ petition. The writ petition is dismissed. No costs. Consequently, connected Miscellaneous petitions are also closed.