JUDGMENT : W.P.(C) No. 1889 of 2018 has been filed for restraining the respondents from enforcing or giving effect to the new price schedule of POL transportation rate as provided by the Indian Oil Corporation Limited (hereinafter referred to as “IOCL”) under Tender No. RCC/ERO/37/2017-18/PT-163 dated 30.03.2018 @ Rs. 3.1272 per KL per KM for 12 KLTT and @ Rs. 2.4484 for 18/20/24 KLTT. It has further been prayed for quashing the Letter of Acceptance dated 22.05.2018 issued in favour of Mrs. Anita Sharma as also for quashing of LoI dated 23.05.2018 issued to M/s Kings Petroleum, Dhanbad. It has also been prayed to quash the Expression of Interest (EoI) i.e Tender No. BSO/OPS/JAS/EOI/ADD TT for induction of additional TT for transportation of bulk petroleum product by bottom loaded TT from transporters and others having due date as 15.06.2018. 2. W.P.(C) No. 5465 of 2017 has been filed for quashing Clause 6 of terms and conditions of Expression of Interest No. BSO/OPS/POL/MSHSD Branded Fuel/JAS/EOI/2017-22 dated 25.08.2017 issued by the General Manager (Operation), Indian Oil Corporation Ltd. for transportation of bulk petroleum products-MS/HSD/Branded Fuels for Dealers/Consumers from Jasidih terminal to different locations by which provisions has been made to the effect that L-1 rates arrived at during the finalization of the tender for the General Transporters category against the public tender shall be made applicable for RO Dealers/Direct consumers offering TTs through the EoI process. W.P.(C) No. 1889 of 2018 3. The factual background of the case as stated in the writ petition is that the respondent-IOCL invited tender for transportation of the bulk petroleum products through bottom loaded type tank trucks around Jasidih area under Tender No. BSO/POL/BULK/01/2013-16/JASIDIH dated 28/29.11.2013 which was valid for a period of three years from 2013 to 2016. The period of the tender was extended time to time and presently, the transporters of bulk petroleum products are working with IOCL under the said tender only. In the aforesaid tender, the rates for transportation of petroleum products is Rs. 3.61 Per KL per KM. The respondent-IOCL has done rate estimation for average RTKM so as to maintain uniformity of implementation in the tenders and has brought Circular No. 79 dated 27.08.2015 in this regard. As per the said circular, the respondents have taken average RTKM of previous three years for transport rate estimation. 3.61 Per KL per KM. The respondent-IOCL has done rate estimation for average RTKM so as to maintain uniformity of implementation in the tenders and has brought Circular No. 79 dated 27.08.2015 in this regard. As per the said circular, the respondents have taken average RTKM of previous three years for transport rate estimation. It has also been decided that RTKM of a transporter tank truck should not be less than minimum 4000 KM/Month, as far as feasible. Reference can be drawn from the average RTKM of last three years for transporters TTs and number of TTs required to be calculated based on feasibility of RTKM which should be as far as possible (location specific) above 4000 RTKM/Month. However, the respondent-IOCL issued similar tender no. WRCC/2016-17/PT/189 dated 10.03.2017 for Maharashtra Circle, wherein the RTKM of a transporter at a minimum of 4000 km per month was shown not to be feasible and on representation made vide letter dated 21.03.2017, the said tender was cancelled and a new tender no. WRCC/2017-18/PT/13 dated 03.07.2017 was invited. Recently, the respondents have issued notice inviting tender vide impugned Tender No. RCC/ERO/37/2017-18/PT-163ex-Jasidih dated 30.03.2018 and have fixed the transportation rate as Rs.3.1272 for 12KL TT and Rs. 2.4484 for 18/20/24 KL and above TT-per KL per KM. 4. The learned Senior Counsel for the petitioners submits that the rate of transportation in Rs. per KL per KM in the latest tender is much lower than the earlier tender which is in existence today. It is further submitted that in order to apply for the present tender, a transporter has to have bottom loaded type tank trucks with vapour recovery system for which the petitioners have made huge investment, however, the respondents have arbitrarily lowered down the rates of transportation. Though the T/T operating cost has increased substantially due to increase in various variables and input costs such as price of chasis, spare parts & maintenance, tyre, road tax & permit charge, insurance, diesel etc., yet the rate of transportation is being lowered down. The earlier tender was for a period of three years, whereas the present tender is for a period of four years. In the earlier tender, the rate of transportation of both 12KL and higher capacity TTs (18 KL and above) was common and fixed at Rs. 3.61 per KL per KM. The earlier tender was for a period of three years, whereas the present tender is for a period of four years. In the earlier tender, the rate of transportation of both 12KL and higher capacity TTs (18 KL and above) was common and fixed at Rs. 3.61 per KL per KM. It is further submitted that as per petitioners’ knowledge which is further fortified by the respondent-IOCLs own circular no. 78 dated 27.08.2015, the respondents have calculated the rate on the premise that transporters’ vehicle should not travel less than minimum 4000 km per month which is not feasible in Jasidih area and is totally irrational. From the record of the last tender, it would be evident that for the period of last five years, none of the vehicles of any transporter operating in Jasidih depot covering 12 districts as existing today, has ever covered the distance of more than 2000-2200 km per month and if the respondents take this fact into consideration, it would be apparent that the reduction in the rate of transportation is grossly arbitrary and suffers from unreasonableness. The petitioners have submitted representations vide letters dated 04.04.2018 and 06.04.2018 and have even participated in pre-bid meeting but of no consequence. The respondents are in fact prompted by the existence of non-existing facts and circumstances and have committed error of facts. It is also submitted that the respondent-IOCL had issued similar tender no. RCC/ERO/37/2017-18/PT-60 dated 28.11.2017 for transportation of bulk petroleum products through bottom loaded type tank trucks for Khunti (Jharkhand) area and in that tender also, the rate fixed for the transporters was very low and as soon as some of the transporters filed writ petitions before this Court, the respondent- IOCL cancelled the said tender. The respondent-IOCL had issued similar tender No. WRCC/2016-17/PT/189 dated 10.03.2017 for Maharashtra circle/region Ex-JNPT Terminal for transportation of bulk ATF through bottom loaded type tank trucks and on the representation of the transporters, the same was cancelled. 5. On the contrary, the learned Senior Counsel for the respondent-IOCL submits that the fixation of rate in contractual matters are determined by market forces and the petitioners have no right to claim that the respondents have arbitrarily fixed the rate of transportation of bulk petroleum products for bottom loading tank trucks for Jasidih Terminal. 5. On the contrary, the learned Senior Counsel for the respondent-IOCL submits that the fixation of rate in contractual matters are determined by market forces and the petitioners have no right to claim that the respondents have arbitrarily fixed the rate of transportation of bulk petroleum products for bottom loading tank trucks for Jasidih Terminal. All the transporters have been given opportunity to put forth their bids if they are amenable to the terms and conditions of the subject tender and the respondents have in no way coerced the petitioners to enter into transportation agreement with the IOCL. The revised rate has been fixed after following a comprehensive price discovery mechanism in tune with the existing policy/guidelines of the IOCL and are applicable to all the transporters who are willing to participate in the tender process and no differentiation has been made out. The estimated rates have been prepared in conformity with the IOCL’s Head Office (HO) policy/guidelines and the parameters have been considered based on the standard format that is being used across all the states. Further, the provision for quoting (+/-) 10% of the price bid/estimated transportation rate has also been made as per the Corporation’s norms. It is further submitted that transportation of petrol/diesel is purely a contractual affair and the scope of judicial review in contractual matters is very limited. The award of such contracts essentially involve commercial considerations. The Hon’ble Supreme Court in numerous judgments has consistently held that the State/its instrumentality can choose its own method to arrive at a decision and fix its own terms for inviting tender and the same is not amenable to judicial scrutiny. The writ court is not supposed to sit as a Court of Appeal over price fixation measures. Though the petitioners have alleged that the tender related to Khunti Terminal was cancelled due to low estimated transportation rates offered therein, however, the actual fact is that the said tender was cancelled as there was an ambiguity in the terms and conditions of tender regarding eligibility of the transporters who were having unregistered partnership firms. Since the said issue was raised by certain transporters and it was found that the terms of the tender were ambiguous on this technical issue, it was decided to cancel the Khunti POL tender. Since the said issue was raised by certain transporters and it was found that the terms of the tender were ambiguous on this technical issue, it was decided to cancel the Khunti POL tender. It is also submitted that in the impugned tender notice dated 30.03.2018, the estimated rate of transportation has been fixed in tune with head office policy/guideline. In the previous tender, number of tank trucks were more and the volume transaction per tank truck was less, but the number of tank trucks sought through the present tender is much lower than the earlier tenders which gives the opportunity to the lesser number of tank trucks to handle more volume of the petroleum products and thereby making more number of trips which is better and more profitable to the transporters positively affecting their earning. It is further submitted that at several other locations, the respondents are offering even lower rates in comparison to the Jasidih Terminal which justifies the revision of the rates. Price fixation is a complex and technical exercise wherein plethora of elements are involved and more importantly the local condition of every terminal/area is specifically taken into account before fixing the estimated transportation rate. The petitioners have failed to show that the conditions contained in the impugned tender have been incorporated with an intention to accommodate a particular class of transporters or that the same are detriment to the public interest as also the interest of the respondent corporation. In 2007, the respondent-Corporation came up with guidelines for modifying the POL transportation tender which was duly approved by the Chief Vigilance Officer. In the said modification, a methodology for working out the transportation rate was evolved taking into consideration all possible elements. Subsequently, vide note of reference OP/PKY/Transport dated 11.03.2014, the approved amendments of the transportation tender policy was circulated for implementation in which it was envisaged that while calculating the estimated transportation cost, some of the capital and operational costs incurred by the transporters should be borne in mind. The estimated transportation rate in the present tender has been arrived at based on prudent policies, streamlined methodologies and appropriate due diligence performed at various levels. The apprehensions of the transporters regarding the perceived lower transportation rate are unfounded as the rates have been arrived after due consultations at different levels in order to achieve economies of scale. The estimated transportation rate in the present tender has been arrived at based on prudent policies, streamlined methodologies and appropriate due diligence performed at various levels. The apprehensions of the transporters regarding the perceived lower transportation rate are unfounded as the rates have been arrived after due consultations at different levels in order to achieve economies of scale. The same have been done keeping in mind the prevalent market rates and the local factors while concurrently ensuring that the interest of the transporters is not affected adversely. The respondent-corporation is in the business of profit making and has adopted such procedure which allows it to achieve economies of scale and to drive profit for sustainable growth. Such contractual matters are driven by market forces and are in the realm of pure contractual agreements between the parties. In the absence of any arbitrariness, per se established malafide and existence of public law element, the contractual decisions are not subjected to judicial review. 6. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have challenged the revised transportation rates of bulk petroleum products through bottom loaded type tank trucks contending that the respondents have arbitrarily lowered down the rate of transportation. On the contrary, the respondents have raised the issue of maintainability of the writ petition on the ground that fixation of rate of transportation is in exclusive domain of the respondents and the present rate has been fixed following the due procedure and applying proper methodology as provided in the existing policy. 7. The learned Senior Counsel for the petitioners, in support of his argument puts reliance on several judgments of the Hon’ble Supreme Court on the issue of maintainability of the writ petition in the given facts and circumstances of the case. I have perused all the judgments cited by the learned Senior Counsel for the petitioners. 8. In the case of “Kisan Sahkari Chini Mills Ltd. & Ors. Vs. I have perused all the judgments cited by the learned Senior Counsel for the petitioners. 8. In the case of “Kisan Sahkari Chini Mills Ltd. & Ors. Vs. Vardan Linkers & Ors.” reported in (2008) 12 SCC 500 , the Hon’ble Supreme Court has held that if there is a contractual dispute with a public law element and a party chooses the public law remedy by way of a writ petition instead of a private law remedy of a suit, he will not get a full-fledged adjudication of his contractual rights, but only a judicial review of the administrative action is permissible. The question whether there has been breach of contract may, however, be examined incidentally while considering the reasonableness of the administrative action. 9. In the case of “Mahabir Auto Stores & Ors. Vs. Indian Oil Corpn. & Ors.”, reported in (1990) 3 SCC 752 , the Hon’ble Supreme Court has held that every action of the State or its instrumentalities in exercise of its executive power must be informed by reason. In appropriate cases, the actions uninformed by reason may be questioned as arbitrary in a proceedings under Article 226 or Article 32 of the Constitution of India. Every action of the state executive authority must be subjected to rule of law and must be informed by reason. Thus, 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 reasonableness, the same would be arbitrary. Even though the rights of the citizens are in the nature of contractual rights, the manner, method and motive of a decision in 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. 10. Further, in the case of “Reliance Energy Ltd. & Anr. Vs. Maharashtra State Road Development Corpn. Ltd. & Ors.”, reported in (2007) 8 SCC 1 , the Hon’ble Supreme Court has held as under: 37. In Union of India v. International Trading Co. the Division Bench of this Court speaking through Pasayat, J. had held: (SCC p. 445, paras 14-15) “14. Vs. Maharashtra State Road Development Corpn. Ltd. & Ors.”, reported in (2007) 8 SCC 1 , the Hon’ble Supreme Court has held as under: 37. In Union of India v. International Trading Co. the Division Bench of this Court speaking through Pasayat, J. had held: (SCC p. 445, paras 14-15) “14. It is trite law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. 15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.” 11. In the case of “State of Kerala & Ors. Vs. M.K. Jose”, reported in (2015) 9 SCC 433 , the Hon’ble Supreme Court has held that the question as to under what circumstance the writ court may entertain the contractual claim or challenge to violation of contract depends upon facts of each case. If the materials that come on record are clearly evincible, the writ court may exercise the power of judicial review. 12. If the materials that come on record are clearly evincible, the writ court may exercise the power of judicial review. 12. The learned Senior Counsel for the respondents has also put reliance on the judgments of the Hon’ble Supreme Court primarily rendered on the point that the writ court has the limited scope to interfere in the matter of price fixation and the state instrumentalities are free to fix any reasonable condition to enter into a contract for their benefits. 13. In the case of “M/s Michigan Rubber (India) Ltd. Vs. The State of Karnataka & Ors.” reported in (2012) 8 SCC 216 , the Hon’ble Supreme Court has held as under: 23. From the above decisions, the following principles emerge: (a) The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) Fixation of a value of the tender is entirely within the purview of the executive and the courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by court is very restrictive since no person can claim a fundamental right to carry on business with the Government. 24. 24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? and (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226. 14. In the case of “Rayalaseema Paper Mills Ltd. & Anr. Vs. Govt. of A.P. & Ors.”, reported in (2003) 1 SCC 341 , the Hon’ble Supreme Court has held as under: 15. This Court was examining the scope of judicial scrutiny in the matters of price fixation where it was governed by statutory provisions. The scope of judicial scrutiny would be far less where the price fixation is not governed by the statute or a statutory order. Where the legislature has prescribed the factors which should be taken into consideration and which should guide the determination of price, the courts would examine whether the considerations for fixing the price mentioned in the statute or the statutory order have been kept in mind while fixing the price and whether these factors have guided the determination. The courts would not go beyond that point. In the present appeals, there is no law, or any statutory provision laying down the criteria or the principles which must be followed, or which must guide the determination of rates of royalty. No doubt, any arbitrary action taken by the State would be subject to scrutiny by the courts because arbitrariness is the very antithesis of rule of law. But this does not mean that this Court would act as an Appellate Authority over the determination of rates of royalty by the Government. The Government is the owner of the products. While it had agreed to supply a particular quantity every year for specified period, it had never agreed to supply at a particular rate; nor did it stipulate with the mill-owners the basis upon which it would determine the rates of royalty. The Government is the owner of the products. While it had agreed to supply a particular quantity every year for specified period, it had never agreed to supply at a particular rate; nor did it stipulate with the mill-owners the basis upon which it would determine the rates of royalty. It is open to the Government to fix such price as it thinks appropriate having regard to public interest, which inter alia, may include interest of revenue, environmental, ecology, the need of mills and the requirements of other consumers. The price is not to be fixed keeping in mind the requirements of the mills alone. 15. The learned Senior Counsel for the respondents also puts reliance on the judgment of the Hon’ble Supreme Court rendered in the case of “Union of India Vs. Cynamide India Ltd & Anr.” reported in (1987) 2 SCC 720 wherein it has been held as under: 4. We start with the observation, “Price fixation is neither the function nor the forte of the court”. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price. For example, if the legislature has decreed the pricing policy and prescribed the factors which should guide the determination of the price, we will, if necessary, enquire into the question whether the policy and the factors are present to the mind of the authorities specifying the price. But our examination will stop there. We will go no further. We will not deluge ourselves with more facts and figures. The assembling of the raw materials and the mechanics of price fixation are the concern of the executive and we leave it to them. And, we will not re-evaluate the considerations even if the prices are demonstrably injurious to some manufacturers or producers. The court will, of course, examine if there is any hostile discrimination. That is a different “cup of tea” altogether. 7. ………..Price fixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. The court will, of course, examine if there is any hostile discrimination. That is a different “cup of tea” altogether. 7. ………..Price fixation may occasionally assume an administrative or quasi-judicial character when it relates to acquisition or requisition of goods or property from individuals and it becomes necessary to fix the price separately in relation to such individuals. Such situations may arise when the owner of property or goods is compelled to sell his property or goods to the Government or its nominee and the price to be paid is directed by the legislature to be determined according to the statutory guidelines laid down by it. In such situations the determination of price may acquire a quasi-judicial character. Otherwise, price fixation is generally a legislative activity. We also wish to clear a misapprehension which appears to prevail in certain circles that price fixation affects the manufacturer or producer primarily and therefore fairness requires that he be given an opportunity and that fair opportunity to the manufacturer or producer must be read into the procedure for price fixation. 27. We are unable to agree with the submissions of the learned counsel for the respondents either with regard to the applicability of the principles of natural justice or with regard to the nature and the scope of the enquiry and review contemplated by Paras 3 and 27. While making our preliminary observations, we pointed out that price fixation is essentially a legislative activity though in rare circumstances, as in the case of a compulsory sale to the Government or its nominee, it may assume the character of an administrative or quasi-judicial activity.……….. 32. The learned counsel argued that there were several patent errors which came to light during the course of the hearing in the High Court. He said that obsolete quantitative usages had been taken into consideration, proximate cost data had been ignored and the data relating to the year ending November 1976 had been adopted as the basis. It was submitted that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calculation of net worth and many other similar errors. As we pointed out earlier, these are all matters which should legitimately be raised in the review application, if there is any substance in them. It was submitted that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calculation of net worth and many other similar errors. As we pointed out earlier, these are all matters which should legitimately be raised in the review application, if there is any substance in them. These are not matters for investigation in a petition under Article 226 of the Constitution or under Article 32 of the Constitution. Despite the pressing invitation of Shri Divan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we consider it outside our province to do so and we do not want to set any precedent as was supposed to have been done in Premier Automobiles though it was not so done and, therefore, needed explanation in later cases. 16. In the case of “Tata Cellular Vs. Union of India” reported in (1994) 6 SCC 651 , the Hon’ble Supreme Court has held that 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, the decision to accept the tender or to award the contract is reached by the process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. 17. In the case of “Association of Registration Plates Vs. Union of India” reported in (2005) 1 SCC 679 , the Hon’ble Apex Court has held that the notice inviting tender is open to response by all and even if one single manufacturer is ultimately selected for a region or State, it cannot be said that the State has created monopoly of business in favour of a private party. Selecting one manufacturer through a process of open competition is not the creation of any monopoly and in violation of Article 19(1)(g) of the Constitution read with Clause (6) of the said Article. 18. It may thus be construed that the terms of the invitation to tender cannot be open to judicial scrutiny as the invitation to tender is in the realm of contract. 18. It may thus be construed that the terms of the invitation to tender cannot be open to judicial scrutiny as the invitation to tender is in the realm of contract. In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities/instrumentalities and unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by the writ court is not warranted. Price fixation is neither the function nor the forte of the court. When the matter comes before a writ court questioning the fixation of price, the court may examine as to whether the policies laid down for fixation of the price has been followed or not. The writ court may also interfere in the matter of price fixation on the ground of violation of the right guaranteed under Article 14 of the Constitution of India and on the ground of arbitrariness, unreasonableness, malafide, irrationality. However, the writ court would not enter into the facts and figures arrived at by the respondent authorities. 19. The thrust of the argument of the learned Senior Counsel for the petitioners is that the impugned action of the respondents reducing rate of transportation is arbitrary in view of the fact that the cost of diesel and other inputs have increased manifold. The learned Senior Counsel for the petitioners puts heavy reliance on the Circular dated 27.08.2015 contending that the respondent-Corporation while fixing the rate of transportation has taken into consideration RTKM of minimum 4000 Km/month which is not feasible in the case of the petitioners as the information provided under the Right to Information Act, 2005, vide letter dated 09.04.2018 reflects that immediately before invitation of the present tender, the average RTKM in Jasidih area was 1900 km. 20. I have perused the aforesaid circular dated 27.08.2015, the relevant portion of which is quoted hereunder: The modified transport tender policy and rate estimation was approved in 2007 and the same is being adopted by all State Offices except NEISO to have uniformity of implementation. The main features of this policy were: 1. Average RTKM for transport rate estimation is the average of previous three years’ RTKM 2. Number of TTs that were inducted were equivalent to third year’s peak requirement 3. 10% additional TTs were inducted keeping in view TT down-time 4. The main features of this policy were: 1. Average RTKM for transport rate estimation is the average of previous three years’ RTKM 2. Number of TTs that were inducted were equivalent to third year’s peak requirement 3. 10% additional TTs were inducted keeping in view TT down-time 4. Average RTKM in including dealer/direct customer’s own supplies in their own TTs and that of the transporter 5. Bidders to quote within +/- 10% of the transportation rate estimates arrived by SO location-wise based on prevailing local conditions. To meet changing market needs and up-gradation of facilities of IOC’s end, the policy was further modified in 2014 & 2015 and amendments have been implemented in all transportation tenders floated thereafter. It has been observed that IOC transportation rates continue to be higher than BPC and HPC which is attributed to IOC having higher number of depots/terminal, however, following is to be adopted in all future transport rate estimation as various upgradation at our locations have lead to reduction in TT turnaround time and their better utilization. The features as mentioned below will help IOC to get competitive transportation rates to meet changing market dynamics. 1. The requirement of TTs has to be as per the first year’s requirement. 2. 10% additional TTs in view of TT down-time need not be considered. 3. ………… 4. ………… 5. RTKM of a transporter tank truck should not be less than minimum 4000 KM/Month, as far as feasible. Reference can be drawn from average RTKM of last three years for transporters TTs and number of TTs required to be back calculated based on feasibility of RTKM which should be as far as possible (location specific) above 4000 RTKM/Month for transporter’s TTs. 6. Evaluation of Rs/KL transportation rate is location specific depending upon the average number of local trips that a TT can undertake in a day. At some locations (depending upon local conditions and operating timings of location) it is possible to make 2 or more trips a day while at other locations it may be feasible to make only ONE trip. The breakdown between Rs/KL & Rs/KL/KM will thus vary from location to location. Purpose is to maximize the use of TT and avoid paying additional transportation charges for idling of TTs. 7. The breakdown between Rs/KL & Rs/KL/KM will thus vary from location to location. Purpose is to maximize the use of TT and avoid paying additional transportation charges for idling of TTs. 7. Average KM/Litre, which a Tank Truck can run with 1 litre of HSD (differs as per carrying capacity) is location specific and should be evaluated taking into consideration road conditions, terrain and congestion on road etc. 8. Rates of various elements of transport rate estimation have to be based on actual market survey (preferably by a committee of two officers, one of functional department and other of Finance). 9. …………. 21. On perusal of the content of the aforesaid circular, it appears that when the IOCL found that its transportation rate was higher than BPCL and HPCL, the circular was amended to meet the changing market needs. Although it was decided that the RTKM of a transporter tank truck should be minimum 4000 km/month, that was not the sole criteria for fixing the rate, rather it was also decided that the evaluation of rate would be location specific. The ultimate purpose is to minimize the use of TT and to avoid paying additional transportation charges for idling of TTs. In order to achieve the said purpose, it was decided by the Corporation that 10% additional TTs in view of TT down-time need not be considered. 22. In order to find out the manner in which the respondents have proceeded to fix the rate of transportation, I have gone through the counter-affidavit filed on behalf of the respondent-IOCL. It has been stated inter alia that the estimated transportation rate has been arrived at based on the prudent policies, streamlined methodologies and appropriate due diligence performed at various levels. The rate has been fixed as per the prevalent guidelines. The parameters that are used to arrive at the estimated transportation rate are evaluated based upon the following factors: i. capital cost (Tank Truck including Anti Braking System, Stainless Steel Security Locking System, Vehicle Mounted Unit-Vehicle Tracking System, etc.) ii. Fuel consumption iii. Lube consumption iv. Tyre usage v. Salary and bonus for drivers/helpers vi. Other perks of drivers/helpers viz uniform, safety shoe, annual bonus, insurance premium vii. Statutory obligations viz registration charges, calibration charges, PESO license, route permit charges, road tax, fitness expenses pollution control charges, insurance charges. viii. Painting of TTs ix. Fuel consumption iii. Lube consumption iv. Tyre usage v. Salary and bonus for drivers/helpers vi. Other perks of drivers/helpers viz uniform, safety shoe, annual bonus, insurance premium vii. Statutory obligations viz registration charges, calibration charges, PESO license, route permit charges, road tax, fitness expenses pollution control charges, insurance charges. viii. Painting of TTs ix. Maintenance expenses, including engine overhauling x. Battery cost xi. Depreciation xii. Administrative expenses xiii. Profit on turnover (fixed cost as well as running cost) 23. The respondents have made justification that they have now decided to reduce the number of trucks and increase the volume of trips thus, the same would be profitable to the transporters. Although, the petitioners have tried to convince this Court that the rate fixed by the respondent-Corporation will cause loss to the petitioners, but they have failed to show that the price fixed is so unreasonably low that it is not possible for any person to deal with the respondents with such rate of transportation. In the present case, the petitioners have also failed to show that the criteria fixed by the respondent-Corporation for fixation of rate is contrary to public interest, discriminatory or unreasonable, rather the contention of the petitioners is that the rate fixation will be against the interest of the petitioners since the rate has been lowered down in comparison to what existed earlier. However, that would not be a ground of interference by this Court since the price fixation is neither the function nor the forte of the writ court. Interest of revenue is also one of the factors for consideration to be kept in mind by the State instrumentalities in relation to price fixation while dealing with any private party in a contractual matter. 24. The Hon’ble Supreme Court in the case of “Cynamide India Ltd.” (supra), has held that if the price of yarn is fixed in such a way to enable the manufacturer or producer to recover his cost of production and secure a reasonable margin of profit, no aspect of infringement of any fundamental right could be said to have arisen. Mere fact that some of persons who were engaged in the industry, trade or commerce alleged that they were incurring loss, would not render the law stipulating the price unreasonable. Mere fact that some of persons who were engaged in the industry, trade or commerce alleged that they were incurring loss, would not render the law stipulating the price unreasonable. The ups and downs of commerce are inevitable and it is not possible to devise a foolproof system to take care of every possible defect and objection. It is certainly not a matter at which the Court could take a hand. It is open to the subordinate legislating body to prescribe and adopt its own mode of ascertaining the cost of production and the items to be included and excluded in so doing. 25. The respondents have brought on record the comparative chart of the rates of different IOCL terminals vis-à-vis the Jasidih Terminal which is reproduced here-in-below: (a) For 12 KL Tank Trucks Jasidih Terminal Rs. 3.1272 New Jaipur TOP Rs. 2.7867 Chittoor Terminal Rs. 2.5161 Jharsuguda Terminal Rs. 2.7056 Paradeep Terminal Rs. 2.45 (b) For above 12 KL Tank Trucks Jasidih Terminal Rs. 2.4484 New Jaipur TOP Rs. 2.3340 Chitoor Terminal Rs. 2.3832 Jharsuguda Terminal Rs. 2.2217 Paradeep Terminal Rs. 2.03 26. On perusal of the aforesaid chart, it would be evident that the rate of transportation of petroleum products fixed for Jasidih Terminal is still higher in comparison of many other locations. 27. Thus, I find force in the submission of the learned Senior Counsel for the respondents that any impractical or unreasonable rate of transportation would cause loss of business to the respondent-Corporation itself as the petroleum products of the respondent-IOCL would not be transported if the transporters would not get profit out of it. The petitioners have contended that they have made huge investment in getting the vehicle built as per the specification provided by the respondents to enter into the contract with them, thus it would cause irreparable loss and injury by lowering down the transportation rate. In fact, the case of the petitioners is that they were under legitimate expectation that the tender would be given to them on the earlier rate of transportation or the rate lower to that since they were the awardees of the earlier contract having the tank trucks of special specification. In fact, the case of the petitioners is that they were under legitimate expectation that the tender would be given to them on the earlier rate of transportation or the rate lower to that since they were the awardees of the earlier contract having the tank trucks of special specification. As per the policy/guidelines of the respondent-IOCL, after the lapse of the period of earlier tender, it has to advertise a new tender as per the terms and conditions fixed by it in view of the guidelines framed from time to time and every person who finds himself eligible has the right to participate in it. Mere fact that earlier the petitioners were dealing with the respondents does not create any vested right with them to be awarded the work in question on their own terms. The respondents have issued an open tender with the terms and conditions fixed after following due procedure and the petitioners as well as eligible persons have right to participate in it, thus I do not find any malafide in the action of the respondents. It is not the case of the petitioners that the rate has been fixed only to give benefit to any particular class/category of bidders, rather the same is applicable to all the tenderers who wish to participate in the tender. The learned Senior Counsel for the respondents has also submitted that in 2007, a guideline was prepared for modifying the POL transportation tender which was duly approved by the Chief Vigilance Officer of IOCL, wherein a methodology for working out the transportation rate was evolved taking into consideration all possible elements and thereafter, all the transportation tenders have been implemented based on the prevalent local conditions. Although, the petitioners have cited tenders issued in other regions contending that due to the protest of the contractors, the said tenders have been cancelled, the respondents have denied the said fact stating that some tenders have been cancelled for altogether different reasons. For the reasons aforesaid, I do not find any arbitrariness or any gross unreasonableness so as to interfere with the new price schedule of POL transportation rate as provided by the respondent-IOCL under Tender No. RCC/ERO/37/2017-18/PT-163 dated 30.03.2018 @ Rs. 3.1272 per KL per KM for 12 KLTT and @ Rs. 2.4484 for 18/20/24 KLTT. 28. For the reasons aforesaid, I do not find any arbitrariness or any gross unreasonableness so as to interfere with the new price schedule of POL transportation rate as provided by the respondent-IOCL under Tender No. RCC/ERO/37/2017-18/PT-163 dated 30.03.2018 @ Rs. 3.1272 per KL per KM for 12 KLTT and @ Rs. 2.4484 for 18/20/24 KLTT. 28. Moreover, in the present case, during the pendency of the writ petition, the LoA of the said work has been issued to the respondent no. 7 being the single bidder. The petitioners have challenged the award of the work to the respondent no. 7 on the ground of she being the single bidder. The Hon’ble Supreme Court in the case “Michigan Rubber” (supra), has held that the notice inviting tender is open to response by all and even if one single manufacturer is ultimately selected for a region or State, it cannot be said that the State has created a monopoly of business in favour of the private party. The petitioners have also challenged the issuance of LoA in favour of the respondent no. 7 alleging that she is not having bottom loaded type trucks which was a necessary qualifying requirement of the tender. The respondents have specifically stated in the counter affidavit that the tender of the respondent no. 7 has been considered being the sole bidder as per the procedure and in conformity with the terms and conditions of the tender and only after issuance of LoA, the physical verification would be done and if the TT fails in the physical verification, the same would not be inducted as per the subject tender conditions. 29. So far as challenge to the LoI dated 23.05.2018 issued to one M/s Kings Petroleum, Dhanbad is concerned, the respondents have specifically stated in the counter affidavit that the same has been issued on the basis of EoI submitted by it pursuant to the notice inviting expression of interest dated 25.08.2017. The said averment of the respondents has not been denied by the petitioners. Moreover, according to the respondents, the EoI having due date as 15.06.2018 was issued in tune with the Corporation’s Circular dated 20.11.2015 as sufficient number of TTs were not available even after finalization of the tender since only one transporter participated with three TTs. I have perused the Circular dated 20.11.2015, paragraph no. Moreover, according to the respondents, the EoI having due date as 15.06.2018 was issued in tune with the Corporation’s Circular dated 20.11.2015 as sufficient number of TTs were not available even after finalization of the tender since only one transporter participated with three TTs. I have perused the Circular dated 20.11.2015, paragraph no. 4 of which provides that even after closure of the tender, if there is requirement of additional TTs, the same can be inducted from the existing dealer/dealer transporter/general transporters as per the provisions of DoA at the established L-1 rate. If the demand is not fulfilled, the public EoI is to be floated seeking offer at the established L-1 rate for the balanced period of the contract. Thus, I do not find any infirmity in the decision of the respondents inviting LOI for induction of additional TTs. W.P.(C) No. 5465 of 2017 30. In the present case, the petitioners including the Jharkhand Petroleum Dealers Association has prayed for quashing of Clause-6 of terms and conditions of Expression of Interest No. BSO/OPS/POL/MSHSD Branded Fuel/JAS/EOI/2017-22 dated 25.08.2017, wherein it has been provided that the L-1 rate arrived at during the finalization of the tender for the General Transporters category against the Public Tender, shall be made applicable for R.O Dealers/Direct Consumers offering TTs through the EoI process. The RO dealers/direct customers shall not have right to question the L-1 rates arrived at in the General Transporter tender. 31. It appears from the record that the L-1 bidder in the present case is Anita Sharma who quoted the maximum rate i.e., 10% above the fixed rate, thus the members of the petitioner-Association have not been caused any such prejudice by the said condition. The specific stand of the respondents in the counter affidavit is that in the tender relating to Jasidih POL, the L-1 rate arrived at is the maximum possible transportation rate as per the tender condition since the sole bidder in the tender has quoted the highest possible rate and as such, as per the tender inviting EoI dated 25.08.2017, the dealer transporters i.e., the petitioners shall get the best rate at par with the rates being offered to other transporters. It has further been stated that after acknowledging the said fact, 117 dealers were issued LoI, out of which 85 have willingly accepted the rates and have placed their tank trucks for physical verification and the work orders to such dealer-transporters will be issued. So far the challenge to Clause-6 of the terms and conditions of Expression of Interest is concerned, the same has now become an academic issue which does not require adjudication in the facts and circumstances of the present case. In view of the said fact situation, the learned Senior Counsel for the petitioners does not press the question of validity of Clause-6 of the terms and conditions of the Expression of Interest dated 25.08.2017 and seeks liberty to agitate the said issue subsequently in an appropriate case. Accordingly, the said issue is left open to be adjudicated in appropriate case, if the situation so arises. 32. Under the aforesaid facts and circumstances, the writ petition being W.P.(C) No. 1889 of 2018 is dismissed and W.P. (C) No. 5465 of 2017 is disposed of with aforesaid observations.