JUDGMENT : The present writ petition has been filed for quashing the letter no. 625 dated 10.03.2018 issued by the respondent no. 4 – the Chief Engineer, Jharkhand Industrial Infrastructure Development Corporation Ltd. (JIIDCO), whereby the letter of intent has been issued in favour of the private respondent (the respondent no. 5) for execution of the work relating to construction of road, drain, culvert for development of Infrastructure at 7th Phase, Adityapur Industrial Area (AIADA) vide NIT No. JIIDCO/SBD/11/2017-18 dated 01.12.2017 (hereinafter referred to as “the said work”). A further prayer has been made for issuance of direction upon the respondent- JIIDCO to award the said work in favour of the petitioner being the lowest bidder. 2. The factual background of the case as stated in the writ petition is that the respondent-JIIDCO published a Notice Inviting Tender for the said work having the estimated value of Rs.35,67,46,000/-. The petitioner, the respondent no. 5– M/s Lords Infracon Private Limited, Jamshedpur and others, participated in the said tender. After getting qualified in the technical bid, the financial bid of the petitioner and other successful bidders were opened on 05.03.2018 by the tender committee and it was found that the petitioner had quoted Rs. 32,10,71,400/-, whereas the respondent no. 5 had quoted Rs. 32,10,72,021/-. The result of the opening of the financial bid was, however, not uploaded in the official website and as such, the petitioner vide letter dated 13.03.2018 asked the said result from the respondent- JIIDCO. The representative of the petitioner also visited the concerned office, whereafter the petitioner come to know that the said work has been awarded to the respondent no. 5. The petitioner vide letters dated 21.03.2018 and 26.03.2018 raised protest before the respondent- JIIDCO asking inter alia that it being the lowest bidder had the preferential right for the award of the said work. Subsequently, the petitioner received an e-mail through which it came to know that its financial bid was rejected by the tender committee. Hence, the present writ petition. 3. The learned counsel for the petitioner submits that while rejecting the financial bid of the petitioner, the tender committee of the respondent- JIIDCO has acted arbitrarily and with an intention to favour the respondent no. 5. Hence, the present writ petition. 3. The learned counsel for the petitioner submits that while rejecting the financial bid of the petitioner, the tender committee of the respondent- JIIDCO has acted arbitrarily and with an intention to favour the respondent no. 5. It is further submitted that the respondent-JIIDCO did not act in a transparent manner since the result of evaluation of the financial bids was not uploaded in the website. Moreover, the tender committee of the respondent- JIIDCO arbitrarily changed the estimated value of the tender from Rs. 35,67,46,000/- to Rs. 35,67,46,690/- and thereby rejected the financial bid of the petitioner on the ground that the same was found below 10% of the tender value. In fact, an amount of Rs. 35,67,46,000/- was shown to be the estimated value in the NIT as well as in the bid document, however, the tender committee of the respondent- JIIDCO, with an intention to favour and to give undue benefit to the respondent no. 5, modified the estimated tender value in the meeting of the tender committee. It is also submitted that though the tender committee of the respondent- JIIDCO in its discretion can ignore the lowest bidder while awarding the work, yet the said discretion should not be exercised arbitrarily, discriminately and with malafide motive. A tender committee has also erroneously relied upon two earlier tenders in its decision dated 07.03.2018 which had no bearing in award of the work in question. The learned counsel for the petitioner further submits that raising of the estimated tender value by Rs.690/- has a serious bearing on the decision making process. Due to the said enhancement, not only the petitioner got disqualified being below 10% of the estimated tender value, but simultaneously the respondent no. 5 got qualified being exactly at 10% below the estimated tender value. As such, the enhancement of the estimated tender value cannot be treated lightly on the pretext of the practice being usually followed in different departments of the State Government. Once the petitioner was declared to be technically qualified and its financial bid vis-a-vis the financial bid of the respondent no. 5 was decided to be opened, it was not permissible for the tender committee to make a comparison between the petitioner and the respondent no. 5 de novo on the technical issues. Moreover, the question of comparison between the petitioner and the respondent no. 5 was decided to be opened, it was not permissible for the tender committee to make a comparison between the petitioner and the respondent no. 5 de novo on the technical issues. Moreover, the question of comparison between the petitioner and the respondent no. 5 arises only when their financial bid are found to be the same. The petitioner admittedly being the lowest bidder, cannot be put to comparison with the respondent no. 5 as has been done by the tender committee taking note of the office order dated 27.11.2015 issued by the Rural Development Department, Government of Jharkhand. 4. In support of the contention, the learned counsel for the petitioner puts reliance on the judgment rendered by the Hon’ble Supreme Court in the case of “Central Coalfields Limited & Anr. Vs. SLL-SML (Joint Venture Consortium) & Ors.” and its analogous case reported in (2016) 8 SCC 622 . 5. Per contra, the learned Senior Counsel for the respondent-JIIDCO submits that tender committee took note of the fact that the amount quoted by the petitioner was below 10% of the estimated contract value and thus, in view of the Clause 163(a) of the Jharkhand PWD Code, 2012 (hereinafter referred to as “PWD Code, 2012”), the financial bid of the petitioner was rejected and the work in question was awarded to the respondent no. 5 who had quoted Rs. 621/- higher than the petitioner. It is further submitted that in view of paragraph no. 4 of the Office Order No. 176 dated 27.11.2015 issued on behalf of the Government of Jharkhand, the preference is required to be given to a local contractor in case the contract bids are found to be equal. The tender committee also took note of the fact that the performance of the petitioner was not found satisfactory in the earlier works awarded to it. Moreover, the work experience, the nature of the work executed by the respondent no. 5 as well as the technical bid capability of the respondent no. 5 was found better than that of the petitioner. Moreover, the work experience, the nature of the work executed by the respondent no. 5 as well as the technical bid capability of the respondent no. 5 was found better than that of the petitioner. It is also submitted that the tender committee has acted in pursuance of the provisions of the PWD Code, 2012 and in view of the Clause 163(b) of the same, the acceptance or rejection of the tender is entirely in the discretion of the tender committee and no explanation can be sought from the tender committee with regard to the cause of rejection of the bid of a particular tenderer. The work in question has rightly been awarded to the respondent no. 5 and, therefore, the impugned letter dated 10.03.2018 does not warrant any interference. 6. The learned counsel for the respondent no. 5 submits that the tender quoted by the petitioner was found below 10% of the contract value and as such, the same was rightly rejected by the tender committee under the provisions of the PWD Code, 2012. It is further submitted that the respondent no. 5 has the good experience of executing the work of similar nature and has completed the three different works in recent past. The tender committee after considering the capability and the conduct of the respondent no. 5 has decided to allot the work in question to it and, therefore, the grounds raised by the petitioner in challenging the decision of the tender committee as well as the issuance of letter dated 10.03.2018 by the respondent no. 4 has no basis. 7. Heard the learned counsel for the parties and perused the materials available on record. The main contention of the learned counsel for the petitioner is that though the petitioner was found to be the lowest bidder by the tender committee, its financial bid has been arbitrarily rejected and the work in question has been awarded to the respondent no. 5. 8. In the case of “B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Services Ltd. & Ors.” reported in (2006) 11 SCC 548 , it is held as under: 56. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. It may be true that a contract need not be given to the lowest tenderer but it is equally true that the employer is the best judge therefor; the same ordinarily being within its domain, court's interference in such matter should be minimal. The High Court's jurisdiction in such matters being limited in a case of this nature, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record. 68. The employer concededly is not bound to accept a bid only because it is the lowest. It must take into consideration not only the viability but also the fact that the contractor would be able to discharge its contractual obligations. It must not forget the ground realities. mahagenco considered all aspects of the matter while accepting the appellant's offer. In its counter-affidavit, it categorically stated that the appellant would be able to perform the contractual undertaking even at such a low rate. 9. In the aforesaid case, the Hon’ble Apex Court has held that the lowest tenderer has no right to be awarded the work, however, the interference of the writ court is permissible if the decision making process undertaken by the State authorities/its instrumentalities is found to be arbitrary and discriminatory. 10. In the case of “Central Coalfields Ltd.” (supra), the Hon’ble Apex Court has held as under: 43. Continuing in the vein of accepting the inherent authority of an employer to deviate from the terms and conditions of an NIT, and reintroducing the privilege-of-participation principle and the level playing field concept, this Court laid emphasis on the decision-making process, particularly in respect of a commercial contract. One of the more significant cases on the subject is the three-Judge decision in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] which gave importance to the lawfulness of a decision and not its soundness. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the courts will not judicially review the decision taken. Similarly, the courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. If an administrative decision, such as a deviation in the terms of NIT is not arbitrary, irrational, unreasonable, mala fide or biased, the courts will not judicially review the decision taken. Similarly, the courts will not countenance interference with the decision at the behest of an unsuccessful bidder in respect of a technical or procedural violation. This was quite clearly stated by this Court (following Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] ) in Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] in the following words: (SCC p. 531, para 22) “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. 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.” This Court then laid down the questions that ought to be asked in such a situation. It was said: (Jagdish Mandal case [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ], SCC p. 531, para 22) “22. It was said: (Jagdish Mandal case [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ], SCC p. 531, para 22) “22. … 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.” 11. In the aforesaid case, the Hon’ble Supreme Court has held that a contract is a commercial transaction and the principles of equity and natural justice stay at a distance. However, the judicial review of the decision making process by the writ court is intended to prevent arbitrariness, irrationality, unreasonableness, biasness and mala fide. 12. On perusal of the record, it appears that both, in the NIT and in the bid document, the estimated contract value was provided as Rs. 35,67,46,000/- and the petitioner had quoted Rs. 32,10,71,400/- which is within 10% of the estimated value of contract. However, the tender committee while examining the financial bid of the petitioner treated the contract value to be Rs. 35,67,46,690.00 and thereby found the financial bid of the petitioner below 10% of the same, which was contrary to Clause 163(a) of the PWD Code, 2012. The respondent-JIIDCO has failed to explain as to how the figure of Rs. 35,67,46,690.00 was arrived at by the tender committee in departure with the estimated contract value mentioned in NIT and the bid documents. Thus, the said ground of rejection of the petitioner’s financial bid is fit to be rejected being arbitrary and unreasonable. 13. That apart, the tender committee while rejecting the petitioner’s bid also took note of several other factors like experience of the petitioner vis-a-vis the respondent no. 5 and also the fact that in the earlier contract, the performance of the petitioner was not found to be satisfactory. 13. That apart, the tender committee while rejecting the petitioner’s bid also took note of several other factors like experience of the petitioner vis-a-vis the respondent no. 5 and also the fact that in the earlier contract, the performance of the petitioner was not found to be satisfactory. It has also been noted by the tender committee that in another work i.e., construction of road and drainage and sewarage work under Phase 7th of Adityapur Industrial Area, the proportionate progress of the work was not found satisfactory in three months. It has also been observed by the tender committee that the petitioner has been awarded another work of Barhi Industrial Area and thus, the present work has been awarded to the respondent no. 5 as it has not been awarded any work by the JIIDCO earlier. The tender committee has also recorded that the respondent no. 5 is a local contractor and thus, the preference for awarding the work in question should be given to it. 14. I have perused Clause 163(a) of the PWD Code, 2012 which reads as under: 163(a) Tenders quoted below 10(ten)% of the amount mentioned in Bill of Quantity shall be rejected ab initio. (b) Usually, the lowest tender should be accepted unless there is some objection to the capability of the contractor, the security offered by him or his execution of former work. Whenever the lowest tender for projects costing Rs. 50000/- and above is not accepted by the authority accepting the tender, he should immediately communicate the reasons for not accepting the same to his immediate superior authority confidentially for approval. At the same time, the acceptance or rejection of tenders is left entirely to the discretion of the officer to whom the duty is entrusted and no explanation can be demanded of the cause of rejection of his offer by any person making a tender. 15. On perusal of the aforesaid provision, it would appear that usually the bid of the lowest tenderer should be accepted. However, the same may be rejected on the ground of capability of the contractor and its performance in execution of an earlier work. 15. On perusal of the aforesaid provision, it would appear that usually the bid of the lowest tenderer should be accepted. However, the same may be rejected on the ground of capability of the contractor and its performance in execution of an earlier work. The petitioner in its rejoinder affidavit has highlighted the infirmity in the decision making of the tender committee stating that the tender committee has wrongly appreciated that the performance of the petitioner has been found unsatisfactory in a period of three months in executing the work of Phase 7th of Adityapur Industrial Area, rather the period of three months had not yet expired and the same was going to be completed on 12.03.2018 and, therefore, the tender committee in its decision dated 05.03.2018 made the said adverse observation against the petitioner prematurely just to deprive it from getting the work in question. 16. The other limb of the argument of the learned counsel for the petitioner is that the tender committee has wrongly treated the bid value of the petitioner to be equal to the respondent no. 5. In my considered opinion, if the stand of the respondent- JIIDCO that the financial bids submitted by the petitioner is treated to be practically equal to that of the respondent no. 5, I am afraid that in no case a lowest bidder can be declared at all. In a competitive bid process, even a marginal difference in the bid amount will put a tenderer to an advantageous position vis-à-vis the others. On perusal of office order dated 27.11.2015 which has been relied by the learned Senior Counsel for the respondent- JIIDCO, it would be evident that the said stipulation would be applicable only in the case where the bid value of the two tenderers are found to be the same/equal. However, in the present case, the bid value quoted by the petitioner is less than that of the respondent no. 5 and thus, the condition/stipulation mentioned in the office order dated 27.11.2015 would not apply in the fact situation of the present case. 17. The respondent-JIIDCO has also put reliance on the decision of the tender committee dated 23.11.2017 in relation to some other work and has contended that in similar circumstance, the petitioner has been awarded the work with a difference of only 0.35 paisa. 17. The respondent-JIIDCO has also put reliance on the decision of the tender committee dated 23.11.2017 in relation to some other work and has contended that in similar circumstance, the petitioner has been awarded the work with a difference of only 0.35 paisa. The petitioner has, however, stated that the said tender cannot be equated with the present one as the other case was not such in which the estimated contract value was changed by the tender committee to the disadvantage of any tenderer. Even if some wrong was committed by the tender committee in the other case, the same cannot be taken note of for justifying the infirmities committed by the tender committee in the present case. 18. In view of the aforesaid discussion, I am of the considered view that the tender committee of the respondent- JIIDCO while rejecting the financial bid of the petitioner has committed material irregularity apparent on the face of the record. The impugned letter no. 625 dated 10.03.2018 issued by the respondent no. 4 is accordingly quashed and set-aside. The respondent- JIIDCO is directed to take a decision forthwith for awarding the work in question to the petitioner being the lowest bidder. 19. The writ petition is accordingly allowed with aforesaid observation and direction.