JUDGMENT : Kh. Nobin Singh, J. 1. Heard Shri A. Mohendro, learned counsel appearing for the petitioner; Shri Y. Nirmolchand, learned Sr. Advocate appearing for the respondent Nos. 2; Shri N. Jotendro, learned Sr. Advocate appearing for the respondent No. 3 and Shri Y. Ashang, learned Government Advocate appearing for the respondent No. 1. 2. By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to conduct a fresh tender with respect to the work being AGM-II/137(FERT)/Pt.-IV for transportation of Urea Fertilizer (15,000 MT) from Dimapur Rakepoint to Imphal and Jiribam Rakepoint to Imphal. 3.1 The facts of the case as narrated in the writ petition are that the Government of Manipur through the Department of Agriculture, issued a Notification dated 19-12-2017 inviting quotations in two bids system (Technical & Price Bid) from interesting Transport Firms/Agencies for transportation of Urea Fertilizer (15,000 MT) from Dimapur Rakepoint to Imphal and Jiribam Rakepoint to Imphal. The petitioner being an interested Transport Agency, was prepared to submit his tender but before he could do so, the State Government issued a “Corrigendum on Invitation of Bid” dated 04-01-2018 informing that the invitation was re-uploaded due to some technical reason and the last date of submission and opening of bids were thereby extended as detailed therein. 3.2 The petitioner along with five other Transport Agencies/Contractors applied for the work in the e-procurement/Tender Portal but to his utter shock and surprise, nothing was uploaded in the tender portal either on 12-01-2018 or on 15-01-2018 and the opening of technical and financial bids was uploaded only on 16-01-2018 for the reasons best known to the State Government. The concerned authority of the Department of Agriculture delayed the uploading of the tender summary report by three days thereby creating rooms for any alteration and modification to be made in the said e-tender. The concerned authority of the Department of Agriculture delayed the uploading of the tender summary report by three days thereby creating rooms for any alteration and modification to be made in the said e-tender. Being aggrieved by such deceitful act of the Department of Agriculture, the petitioner went to the office of the Department of Agriculture to enquire into the matter and it was found that there was a document purporting to be the summary of the BOQ (Bill of Quantity) in which the private respondent was already specified as L1 (Lowest Bidder), a copy of which was handed over to the petitioner by it but the same is not yet uploaded in the e-procurement/tender portal for the reason best known to them. 3.3 According to the petitioner, on perusal of the said summary of the BOQ, it was found that the Department had adopted different yardsticks while computing the rate of tender and being aggrieved by it, the petitioner submitted an application dated 17-01-2018 requesting for re-tender. The private respondent was shown to be the lowest bidder but the amount quoted by him was not only unreasonable but also practically impossible and since the petitioner felt that the authority had no intention of conducting re-tender, he issued a legal notice dated 18-01-2018 through his counsel highlighting the anomalies and defects in the e-tender process and to conduct a fresh tender. In reply thereto, the Director of Agriculture, Manipur addressed a letter dated 30-01-2018 stating that there was no irregularity or lapses in the process of tender for transportation of Urea Fertilizer. 3.4 Being aggrieved by the inaction on the part of the respondents, the petitioner has filed the instant writ petition on the inter-alia grounds that the State Government delayed in uploading the summary of tender thereby deviating from the dates as already specified in the “Corrigendum of Invitation of Bid” dated 04-01-2018; that the Department of Agriculture adopted different yardstick in computing the rate of tender; that the Department of Agriculture resorted to choosing bidder of their choice even before the result of the tender was out thereby making the NIT pointless and that the Department of Agriculture created room for arbitrary exercise of power including favouritism, nepotism and lack of transparency, etc. 4. An affidavit on behalf of the respondent Nos. 4. An affidavit on behalf of the respondent Nos. 1 and 2 has been filed wherein it has been stated that due to an error detected in preparing the NIT portal, a “Corrigendum of Invitation of Bid” was issued on 04-01-2018 which was widely circulated in daily local newspapers and accordingly, six bidders including the petitioner submitted their tender bids on 10-01-2018 within time. The technical bid was opened as per time on 12-01-2018 but it could not be uploaded as the following days i.e., 13-01-2018 and 14-01-2018 being holidays. As regards the financial bid, it could not be opened on 15-01-2018 due to the total shutdown of internet facilities because of the fire incident that took place at Internet office at Dimapur and accordingly, the financial bid was opened only on 16-01-2018 and since it was uploaded in the e-procurement/tender portal, there was no any chance of manipulation. The reasons for the delay in opening the price bid and the reasons for non-acceptance of rate quoted by the petitioner being the highest bidder, was explained by the Director of Agriculture vide its letter dated 30-01-2018. The allegation of adopting different yardstick while computing the rate of tender, has been denied and in addition thereto, it has been stated that although the petitioner was not qualified in technical bid, he was allowed to participate in the financial bid in the public interest. The quoted rate is to be determined as per the condition provided in the NIT which provides that quoted rate is to be made as per MT per KM X distance. 5. An affidavit in-opposition has also been filed by the respondent No. 3 and the stand taken therein is similar to that of the State Government. It has been stated that as per the documents examined by the Tender Committee, the petitioner was found to be not qualified in the technical bid but inadvertently the status of the bids of the petitioner had been shown as Accepted-Technical. In the financial bid, only two persons were found to have qualified, out of which the respondent No. 3 was found to be L1. The main reason for the delay in uploading the necessary documents was due to the fire broke out at the BSNL office, Dimapur as has been stated by the State Government in its affidavit. In the financial bid, only two persons were found to have qualified, out of which the respondent No. 3 was found to be L1. The main reason for the delay in uploading the necessary documents was due to the fire broke out at the BSNL office, Dimapur as has been stated by the State Government in its affidavit. There was no any irregularity or lapse on the part of the authority in rejecting the bid of the present petitioner. 6. Before coming to the facts of the present case, this court deems it appropriate to re-visit the principles laid down by the Hon'ble Supreme Court in matters relating to award of contract. In Tata Cellular v. Union of India, (1994) 6 SCC 651 wherein two main issues-one, relating to the scope of judicial review and two, relating to selection being vitiated by arbitrariness, which are relevant for this case also, were considered and decided by the Hon'ble Supreme Court. In matters relating to contracts wherein one of the parties is the public authority, the question to be asked is, have the guidelines been laid down, if so laid down, have they been observed? The Hon'ble Supreme Court, after referring to its earlier decisions, summarised the principles which are the broad grounds subject to addition of further grounds in course of time. The Hon'ble Supreme Court held: “69. A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated, the following are the requisites of a valid tender: 1. It must be unconditional. 2. Must be made at the proper place. 3. Must conform to the terms of obligation. 4. Must be made at the proper time. 5. Must be made in the proper form. 6. The person by whom the tender is made must be able and willing to perform his obligations. 7. There must be reasonable opportunity for inspection. 8. Tender must be made to the proper person. 9. It must be of full amount. 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. 70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down. 71. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review. 88. We may now look at some of the pronouncements of this Court including the authorities cited by Mr. Ashoke Sen. Fasih Chaudhary v. Director General, Doordarshan was a case in which the Court was concerned with the award of a contract for show of sponsored TV serial. At p. 92 in paragraphs 5 and 6 it was held thus: “It is well settled that there should be fair play in action in a situation like the present one, as was observed by this Court in Ram & Shyam Co. v. State of Haryana. It is also well settled that the authorities like Doordarshan should act fairly and their action should be legitimate and fair and transaction should be without any aversion, malice or affection. Nothing should be done which gives the impression of favouritism or nepotism. See the observations of this Court in Haji T.M. Hassan Rawther v. Kerala Financial Corpn. It is also well settled that the authorities like Doordarshan should act fairly and their action should be legitimate and fair and transaction should be without any aversion, malice or affection. Nothing should be done which gives the impression of favouritism or nepotism. See the observations of this Court in Haji T.M. Hassan Rawther v. Kerala Financial Corpn. While, as mentioned hereinbefore, fair play in action in matters like the present one is an essential requirement, similarly, however, “free play in the joints' is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere as the present one. Judged from that standpoint of view, though all the proposals might not have been considered strictly in accordance with order of precedence, it appears that these were considered fairly, reasonably, objectively and without any malice or ill-will.” 94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure”. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure”. In Air India Ltd. v. Cochin International Airport Ltd. & ors, reported in (2000) 2 SCC 617 wherein it has been held that the law relating to award of a contract has been settled by the Hon'ble Supreme Court, the relevant para 7 of which is as under: “7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in Ramana Dayaram Shetty v. International Airport Authority of India, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. 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 paramount are commercial considerations. The State 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. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Though that decision is not amenable to judicial review, the court can examine the decision-making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.” In Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC 517 , the decision in Tata Cellular case (supra) was referred to and relied upon with the following observations: “This Court also noted that there are inherent limitations in the exercise of power of judicial review of contractual powers. This Court also observed that the duty to act fairly will vary in extent, depending upon the nature of cases, to which the said principle is sought to be applied. This Court held that the State has the right to refuse the lowest or any other tender, provided it tries to get the best person or the best quotation, and the power to choose is not exercised for any collateral purpose or in infringement of Article 14.” In Maa Binda Express Carrier v. North-East Frontier Railway, reported in (2014) 3 SCC 760 , the Hon'ble Supreme Court has held that the submission of tender is no more than making an offer which the State or its agencies are under no obligation to accept and the bidders in the tender cannot insist that their tenders should be accepted simply because a given tender is the highest or the lowest. It has further been held that the only enforceable right that a bidder has, is to examine by the court whether the aggrieved party has been treated unfairly or discriminated against to the detriment of the public interest. It has further been held that the only enforceable right that a bidder has, is to examine by the court whether the aggrieved party has been treated unfairly or discriminated against to the detriment of the public interest. In Rishi Kiran Logistics Private Ltd. v. Board of Trustees of Kandla Port Trust & anr., reported in (2015) 13 SCC 233 , the decision of the Hon'ble Supreme Court in Tata Cellular Case (supra), has been followed with the observation that a lucid enunciation on the scope of judicial review of administrative action, that too in tender matters can be found therein. It is thus seen that the law, as regards the matters relating to award of contracts involving a public authority, is no longer res integra. There is no need of multiplying the decisions rendered by the Hon'ble Supreme Court in this regard and suffice it to say that the court's power of judicial review of administrative action is limited to the extent indicated in the decisions mentioned hereinabove. 7. In the present case, a Notification dated 19-12-2017 was issued by the State Government inviting quotations in two bids system from interesting Transport Firms/Contractors for transportation of Urea Fertilizer from (1) Dimapur Rakepoint to Imphal and Jiribam Rakepoint to Imphal. Tender was to be submitted online through e-procurement/Tender Portal and the dates of submissions were stipulated therein. Due to some technical reasons, the invitation was re-uploaded vide “Corrigendum on Invitation of Bid' dated 04-01-2018 issued by the office of the Directorate of Agriculture, Manipur revising the time schedule as regards the submission of tender, opening of technical and financial bids. Six contractors including the petitioner submitted their tenders on 10-01-2018 and the technical bid was opened on 12-01-2018 while the financial bid was opened on 16-01-2018. The allegation of the petitioner is that since the opening of both the technical and financial bids was uploaded only on 16-01-2018, it provided an ample opportunity for manipulation and that it was intended to accommodate the private respondent as L1. In other words, the allegation is that the authorities did deliberately delay in uploading the tender summary report thereby creating a room for any alternation and modification. In other words, the allegation is that the authorities did deliberately delay in uploading the tender summary report thereby creating a room for any alternation and modification. However, there is no any specific allegation as regards non-observance with the procedure prescribed in law nor is there any allegation of malafide against any particular officer or member of the tender committee and moreover, there is no any material on record to show prima facie that the authorities concerned had manipulated documents so as to ensure that the private respondent is declared as L1. In his letter dated 17-01-2018 which was submitted on the next day after opening of financial bid, the petitioner has averred that the tender is to be re-tendered due to wrong calculation formula of the BOQ uploaded by the authorities and the actual calculation of the BOQ ought to have been the “distance (KM) x Rate x MT”. The reason given by the authorities in its affidavit as regards the delay in uploading the technical bid, was that the following days i.e., 13-01-2018 and 14-01-2018 did happen to be 2nd Saturday and Sunday. So far as the financial bid is concerned, it could not be opened on 15-01-2018 due to total shut down of internet facilities at Dimapur on account of a fire incident and therefore, it could be opened only on 16-01-2018 with the result that the opening of both the technical and financial bids was uploaded on 16-01-2018. Unless there are materials on the contrary, the mere delay in uploading the bids cannot be said to have prejudiced the rights of the petitioner. As has been stated hereinabove, the tender is to be conducted through e-procurement/tender portal and after the tender documents having been submitted or uploaded, the result thereof is to be generated through computer and human hands are stated to be not involved therein. 8. During the course of hearing, it has been submitted by Shri A. Mohendro, the learned counsel appearing for the petitioner on two points-one, in the report of the Tender Committee marked as Annexure-X-1, the petitioner is erroneously shown to have not conformed to certain documents and to have not filed some other documents, although the same have been fulfilled by him as stated in the rejoinder affidavit and two, the rate quoted by the private respondent is highly unreasonable and unworkable. Before dealing with the first point, this court proposes to deal with second point for the reason that despite the petitioner being not qualified in the technical bid, he was allowed to participate in the financial bid. Para 6 of the terms and conditions provides that the rate quoted per MT per KM unit shall be the landing cost at destination, including of loading and unloading, rebagging of damaged bags, forwarding, the taxes/duties, freight insurance etc. While computing the rate of tender as per the tender price quoted by the contractors including the petitioner, the result thereof as seen from Annexure-R/5 (Colly.) filed along with the counter, is as under: METHOD OF CALCULATION OF PRICE RATE AS PER SUBMITTED BY THE TENDERERS ROUTE: DIMAPUR RAKE POINT TO IMPHAL 1. ANUP TRADERS AND TRANSPORT PRIVATE LIMITED METHOD OF COMPUTATION AS PER TENDER BID OF ANUP TRADERS (a) Rate Rs. 6800/- per MT per KM (b) Quantity of fertilizer to be transported ----15,000MT Now result of financial tender BID i.e., Rs. 6800 x 15,000 MT = Rs. 10,20,00,000/- The above calculation is on the basis of per MT per KM and hence no contradiction to the computation of the price BID 2. M/S G. BIMOLKUMAR SHARMA Prop. M/S B.K. ENTERPRISES METHOD OF COMPUTATION AS PER TENDER BID OF MS B.K. ENTERPRISES (a) RATE Rs. 3420/- per MT per KM (b) Quantity of fertilizer to be transported ----15,000 MT Now result of financial tender BID i.e., Rs. 3420 x 15,000 MT = Rs. 5,13,00,000/- 3. M/S CH. JAYANTAKUMAR SINGH METHOD OF COMPUTATION AS PER TENDER BID OF MS CH. JAYANTAKUMAR SINGH (a) Rate Rs. 3650/- per MT per KM (reflected in the comparative statement) (b) Quantity of fertilizer to be transported ---- 15,000 MT Now result of financial tender BID i.e., 3650 x 15,000 MT = Rs. 5,47,50,000/- 4. M/S SURBHI LOGISTICS METHOD OF COMPUTATION AS PER TENDER BID OF SURBHI LOGISTICS (a) Rate Rs. 3770/- per MT per KM (b) Quantity of fertilizer to be transported --- 15,000 MT Now result of financial tender BID i.e., Rs. 4620 x 15,000 MT = Rs. 5,65,50,000/- 5. M/S R.K. & Co. METHOD OF COMPUTATION AS PER TENDER BID OF MS R.K. & CO. (a) Rate of 15.75 per MT per KM (b) Quantity of fertilizer to be transported ---- 15,000 MT Now result of financial tender BID i.e., Rs. 4620 x 15,000 MT = Rs. 5,65,50,000/- 5. M/S R.K. & Co. METHOD OF COMPUTATION AS PER TENDER BID OF MS R.K. & CO. (a) Rate of 15.75 per MT per KM (b) Quantity of fertilizer to be transported ---- 15,000 MT Now result of financial tender BID i.e., Rs. 15.75 x 15,000 MT = Rs. 2,36,250/-. The result is coming out for 15000 MT for 1 (one) Km. 6. M/S K.D.S. GROUP METHOD OF COMPUTATION AS PER TENDER BID OF M/S K.D.S. GROUP (a) Rate Rs. 16.85 per MT per KM (b) Quantity of fertilizer to be transported --- 15,000 MT Now result of financial tender BID i.e., Rs. 16.85 x 15,000 MT = Rs. 2,52,750/-. The result is coming out for 15000 MT for 1 (one) Km.” On perusal of the said computation, it is clearly seen that the rate quoted by the petitioner is highly exorbitant as compared with that of the private respondent and the rate quoted by him is Rs. 4500/- per MT per KM while that of the private respondent is Rs. 14.75 per MT per KM. There is a gulf of difference between the rates quoted by them, in the sense that the difference is in terms of few thousands rupees and not in terms of few rupees. In any case, the rate quoted by the private respondent is found to be the lowest and accordingly, he has been declared as L1. As has been held by the Hon'ble Supreme Court, the judicial review by the High Court under Article 226 of the Constitution in matters relating to tender, is very limited and in the absence of any allegation of malafide or procedural lapse, the High Court ought to be slow in interfering with the process of tender. In view of the above, this Court is of the opinion that the instant writ petition is devoid of any merit and needs no interference by this Court. 9. There is one aspect which needs to be considered by this Court. It has been submitted by the learned counsel appearing for the petitioner that the rate quoted by the private respondent is highly unreasonable and unworkable. 9. There is one aspect which needs to be considered by this Court. It has been submitted by the learned counsel appearing for the petitioner that the rate quoted by the private respondent is highly unreasonable and unworkable. It is undeniable fact that since the tender being floated by the State Government, public interest is involved and therefore, the State Government is duty bound to take appropriate action to ensure that the interest of the public is taken care of. Therefore, the Tender Committee shall not accept the rate quoted by the private respondent blindly and before doing that, it shall take into account various factors like feasibility, capability of the contractor to supply adequate trucks etc. In this regard, it may be noted that the State Government has, in its affidavit, stated that it is for it to decide which one should be chosen in order to save public money. Moreover, Shri N. Jotendra, the learned senior counsel appearing for the private respondent has fairly submitted that his client has no objection to any decision being taken by the State Government after considering various factors as aforesaid. 10. In view of the above, the instant writ petition is dismissed with the direction that before accepting the rate quoted by the private respondent, the Tender Committee shall examine it minutely considering various factors and record its reasons thereof.