CAV JUDGMENT : Petitioner is one of the bidders. 2. This writ application is seeking to challenge the decision of the respondent no.1 to 3 (hereinafter referred to as ‘the employer’ or ‘the respondent no.1 Company’) whereby the respondent no.1 Company has extended the prescribed date and time for submission of bids as mentioned in the Invitation for Bidders (in short ‘IFB’). The application goes on to say that if the respondent no.4 could not submit its bids by prescribed time in the IFB read with clause 6.1 of the Instruction to Bidders (‘ITB’) and the time lapsed, the respondent nos.1 Company could not have extended the time and the extension is nothing but a favour shown to accommodate the respondent no.4. The legality and validity of Amendment No. ‘24’ and Amendment No. ‘25’ as contained in Annexure- ‘5’ and ‘6’ respectively to the writ application have been questioned even before opening of the technical bid. 3. Learned senior counsel for the parties have argued the matter at length and this Court acknowledges their assistance rendered to this Court. Brief facts of the case 4. The respondent no.1 is a wholly owned subsidiary of SJVN Ltd. which in turn is a joint venture of the Government of India and Government of Himachal Pradesh. The respondent no.1- Company came out with an Invitation for Bid (IFB) No.STPL/BTPP/P&C/EPC-01/2018-878 dated 22.08.2018 for Engineering Procurement and Construction (EPC) Package for Buxar Thermal Power Project (2x660 MW). Initially as per the bid documents the date fixed for submission/uploading the bid documents was 10.10.2018 at 14.00 Hrs.(2.00 PM). The bid document, the relevant part of which has been brought on record with the supplementary affidavit of the petitioner as Annexure-11, would show that it is contained in seven volumes. Volume-I deals with Conditions of Contract (Commercial and General). Volume-I consists of six Sections. Section I is called Invitation for Bids (IFB), Section II is the Instructions to Bidders (ITB), Section III is the Bid Data Sheet (BDS), Section IV lays down the General Conditions of Contract (GCC), Section V provides Special Conditions of Contract (SCC) and Section VI prescribes the Forms and Procedures (FP). 5. In terms of Clause 6.1 of the ITB, respondent no.1- Company amended the original date of submission of bid on various occasions. 5. In terms of Clause 6.1 of the ITB, respondent no.1- Company amended the original date of submission of bid on various occasions. It is an admitted position that all those amendments prior to impugned amendments were effected before expiry of the time prescribed in the original bid document as also before expiry of time fixed in the subsequent amendments. It is also an admitted position that so far Annexure- ‘5’ and ‘6’ which are the two amendments under challenge by which the time for submission of bid on 05.03.2019 at 13.00 Hrs. was extended to 17.00 Hrs. (IST) on 05.03.2019 and then the date and time for submission of the bids were further extended from 05.03.2019 to 08.03.2019 at 13.00 Hrs. (IST). These extensions were done after expiry of prescribed time i.e. 05.03.2019 at 13.00 Hrs. 6. The petitioner had raised its objection to the extension of time after expiry of the last amended time. Annexure-8 series are copies of the letters written by the petitioner to respondent no.1-Company raising it’s protest on the ground that any extension of time after closure of scheduled bids time violates the tender norms and is against the tender provisions specified in Clause 16.4 of the ITB. 7. It is also on record that pursuant to the extension of time the Bharat Heavy Electrical Limited, a Public Sector Undertaking (respondent no.4) has submitted its bids. The participation of respondent no.4 in the given manner is not acceptable to the petitioner, hence the present writ application. 8. In order to appreciate the rival submissions, this Court, while hearing the writ application on 02.04.2019, thought it just and proper to implead the service provider in the case i.e. M/s E-Procurement Technologies Limited as party respondent no.5. The background in which the respondent no.5 was added and a report was called for would be duly reflected in the order dated 02.04.2019 which I quote hereunder for a ready reference:- “This Court has benefit of hearing Mr.Amrendra Saran, learned Senior Advocate and Mr. S.B.Upadhayay the another learned Senior Advocate in this case. Mr. P.K.Shahi, the learned Senior Advocate has also addressed this Court and has taken-up certain issues on behalf of respondent no.4. The matter has been heard at length. S.B.Upadhayay the another learned Senior Advocate in this case. Mr. P.K.Shahi, the learned Senior Advocate has also addressed this Court and has taken-up certain issues on behalf of respondent no.4. The matter has been heard at length. Apart from his contention that the employer in this case, i.e. respondent nos.1 to 3 would have no power to extend the time for submission of bid after expiry of the prescribed time by way of amendment, Mr.Amrendra Saran, learned Senior Advocate representing the petitioner has also submitted to this Court that what has been stated in amendment 24 and amendment 25 as contained in Annexure ‘5’ and ‘6’ respectively to the writ application that the extension is being granted because the bidders were facing some technical issues are not correct and it was only to favour the respondent no.4, this Court thinks it just and proper as also in tune with some of the judicial pronouncements cited at the Bar to find out the correct position with regard to the technical issues prevailing at the relevant time i.e., on 05.03.2019 before 01:00 P.M. which was the time prescribed for uploading the tendered documents. It is the contention of Mr. Shahi, learned Senior Advocate representing respondent no.4 that in fact the respondent no.4 had registered itself well within the time prescribed in the tender document but was facing certain technical glitches in uploading the documents since 04th March itself which were brought to the notice of the service provider. This Court has also been informed by Mr. S.B.Upadhayay, learned Senior Advocate representing respondent nos.1 to 3 that in fact on 04th March, 2019 the petitioner had also requested respondent nos.1 to 3 to extend the time for submission of the bid for a period of two weeks because they were unable to upload the documents immediately after noticing the amendment effected on 1st March, 2019. It is also contended on behalf of respondent nos.1 to 3 that infact after extension of time the petitioner had visited at least 11 times on the portal and thereby the petitioner had utilized the opportunity granted to all the intending bidders including the petitioner by virtue of the extension of time for submission of bids. Mr. It is also contended on behalf of respondent nos.1 to 3 that infact after extension of time the petitioner had visited at least 11 times on the portal and thereby the petitioner had utilized the opportunity granted to all the intending bidders including the petitioner by virtue of the extension of time for submission of bids. Mr. Upadhyay has also relied upon the Judgments of the Hon’ble Supreme Court reported in (2012) 8 SCC 216 (Paragraph 24), (2000) 2 SCC 617 , (2016) 16 SCC 818 and (2014) 3 SCC 760 (Paragraph 8 to 12). Mr. Sahi, learned Senior counsel, has, at this stage, placed before this Court a Division Judgment of the Hon’ble Delhi High Court in the case of Larsen and Turbo Hydrocarbon Engineering Limited vs. Oil and Natural Gas Corporation Limited and Another to submit that the Judgment would cover the issues raised in the present writ application. Mr. Amrendra Saran, learned Senior Advocate has with all humility to the submissions made by his learned colleague submits that the petitioner does not admit the submission of Mr. Upadhyay, learned Senior counsel for the respondent nos.1 to 3 regarding the ‘visiting’ of portal by the petitioner during extended time because the fact is that at any point of time any of its officer had altered any of the contents of the tendered document. Learned Senior Counsel submits that the word ‘visiting’ has to be understood in the context in which it has been provided and unless it is found that the petitioner has altered any of the terms and conditions of the tender document it cannot be allowed to be argued that the petitioner has utilized the extension of time for submission of the bid. It is submitted that on the very next day the petitioner had protested the extension of time granted by respondent nos.1 to 3. In course of argument, various submissions have been made by the learned Senior Counsel for the parties. While, it is the submission of Mr.Saran, learned Senior Counsel that there are possibilities of interfering with the information furnished by the petitioner in its financial bid and the respondents may come to know about the price disclosed in the financial bid, it is the submission of Mr.Upadhyay and Mr.Sahi, learned Senior Advocates at the Bar that the ‘E-Portal’ is security compliant. Reference has also been made to certain frequently asked questions to show that the documents uploaded on the web-site are in encrypted form and unless those are de-crypted and made in readable form after opening of the technical bid, nobody can read it and come to know about its contents thereof. It is also pointed out that the moment anybody would open the bid document of the petitioner, the system will automatically generate an information which will first go to the petitioner showing that his bid document has been seen by somebody. There is no such allegation in the writ petition according to learned Senior Advocate for the respondents. Mr. Saran, learned Senior Advocate has in course of argument relied upon the Judgment of the Hon’ble Bombay High Court in case of G.K. Transport Company vs. Western Coalfield Limited to submit that there was an identical Clause in the bid document in the said case whereunder the employer could have modified the bid document by issuing addenda before the deadline of the submission of the bid but when the employer extended the time after the deadline for submission of bids the Hon’ble Bombay High Court did not approve the same. The learned Senior Counsel has also relied upon the Judgment of the Hon’ble Supreme Court in the case of Maharashtra Housing Development Authority vs. Shapoorji Pallonji & Company Private Limited and Ors. reported in 2018 (3) SCC Page 13 to submit that in the said case the time for submission of bid was extended by the employer which was permitted by the Hon’ble High Court but when the Judgment of the Hon’ble High Court was challenged before the Hon’ble Supreme Court the Hon’ble Supreme Court after obtaining a report from the service provider i.e. NIC found that there was no technical glitch in the system and for that reason the Hon’ble Supreme Court took a view that in absence of any technical glitch in the system if the time was extended by the employer contrary to the terms and conditions of the tender then such extension cannot be approved and the Judgment of the Hon’ble High Court was setaside. After going through the Judgment of the Hon’ble Supreme Court in the case of Maharashtra Housing Development Authority (Supra), this Court is of the considered opinion that in order to take a view on the correctness of the reasons provided in the amendment as contained in Annexure ‘5’ and ‘6’ to the writ application it would be appropriate to call upon the service provider in this case i.e. M/s EProcurement Technologies Limited, B-704-705, Wall Street II, Opp. Orient Club, Nr. Gujarat College, Ahmedabad-380006 to be added as party respondent no.5 in course of the day. Let the service provider submit a report to this Court within one week from today as to the prevailing technical conditions on 05.03.2019 before 01:00 P.M. The service provider must inform as to whether the reasons shown by respondent nos. 1 to 3 for extension of time by way of amendment 24 and amendment 25 are based on any such technical glitch found on the portal of the employer provided by the service provider. The report shall be submitted in a sealed cover. Mr. Saran, learned Senior Advocate submits that any report submitted by the service provider be kept open to such submissions which may be made by the parties. This Court leaves it open for the parties to take all such pleas which may be available to them in respect of the report submitted by the service provider. Mr. Saran has also submitted that even if the report supports the reasons shown in Annexure ‘5’ and ‘6’ the submission of the petitioner remains that in no case the employer could have extended the time for submission of the bid. Further submission of the parties shall be heard on next date. Let a certified copy of this order be served upon the service provider by respondent nos.1 to 3 by day after tomorrow. The Registry shall issue “Dasti Notice” to respondent no.5 requisites for which shall be filed by the learned counsel for the respondent nos.1 to 3 by tomorrow and the “Dasti Notice” shall be made available to the learned Advocate representing the respondent nos. 1 to 3, his junior colleague or the registered clerk by tomorrow evening. As prayed, list this case under the same heading on 15th April, 2019 at the top.” 9. 1 to 3, his junior colleague or the registered clerk by tomorrow evening. As prayed, list this case under the same heading on 15th April, 2019 at the top.” 9. Pursuant to the aforesaid order, the respondent no.5 sent a report enclosed with their affidavit, but then because nobody was appearing on behalf of the respondent no.5, this Court passed order dated 15.04.2019 directing the respondent no.5 to send a competent officer to explain the matter in course of hearing. Pursuant to the said order one Mr. Tejas Parikh who is also deponent of the affidavit of respondent no.5 and is a senior manager in the company appeared and assisted this Court in understanding some of the technical issues. Submissions on behalf of the petitioner 10. Mr. Ranjit Kumar, learned senior counsel representing the petitioner has went on elaborating the submissions earlier made by Mr. Amrendra Sharan learned senior counsel. Mr. Kumar has emphatically submitted that the respondent no.1- Company could not have extended the deadline for submission of the bids. 11. Learned senior counsel has put emphasis on the words ‘extension’ and ‘deadline’. It is his submission that the word ‘extension’ presupposes existence of something. In this case since the prescribed time of 13.00 Hrs. on 05.03.2019 had expired and the deadline was crossed, thereafter the employer i.e. the respondent no.1-Company could not have extended the time by issuing Amendment ‘24’ dated 05.03.2019 at 13.54.33 Hrs. and the subsequent amendment extending the date and time to 08.03.2019 at 13.00 Hrs. (IST). According to learned senior counsel it would amount to committing violence with the terms and conditions of the tender document and shall take away the sanctity of tender. He has heavily relied upon the conditions prescribed in the IFB under clause 4.0, one of which is prescribing the time and date for opening of Techno-commercial Bids. Relying upon a judgment of the Hon’ble Supreme Court in the case of Provash Chandra Dalui and another Vs. Biswanath Banerjee reported in (1989) 1 SCC 487 it is submitted that in the said case the Hon’ble Supreme Court had considered and held that the word ‘extension’ means to enlarge, expand, lengthen, prolong, to carry out further than its original limit. Thus, extension ordinarily implies the continued existence of something to be extended. 12. He has referred Clause 4.2.1 of the IFB which prescribes the registration for E-tendering and method of applying. Thus, extension ordinarily implies the continued existence of something to be extended. 12. He has referred Clause 4.2.1 of the IFB which prescribes the registration for E-tendering and method of applying. Learned senior counsel has pointed out from the relevant conditions under the heading Contact Details that the vendors were given the name and mobile numer of the officials who could have been contacted in case of any assistance required with respect to accessing of e-Tendering portal and bid submission, but at the same time there was also a clear caution provided in the IFB saying that all the bidders should get themselves registered well in advance and no extra time will be considered for the delay in online vendor registration. The conditions further prescribes that in case the bidders wait till the last moment for registration/uploading of bids, and if any technical problem is encountered at that time and the closing time may elapse, respondent no.1-Company shall not be responsible in any manner for such delay and any other reason thereof. 13. Learned senior counsel has further pointed out from IFB (running page 92 of the brief) that the respondent no.1- Company may modify/amend the tender document and extend the last date of submission/opening of the bid at any time before the submission of the bids. It is thus his submission that after expiry of the time at 13.00 Hrs. the impugned amendments could not have been brought. 14. Thereafter, learned senior counsel has taken this Court through the various clauses of the ITB. It is submitted that Clause 5.1 which prescribes the manner in which a prospective bidder may look for a clarification to the bidding documents, is to be read with Clause 6 of the ITB. Clauses 6.1, 6.2 and 6.3, according to learned senior counsel for the petitioner are prescribing procedures in the matter of issuance of any addendum/amendment and communication thereof through the portal of respondent no.1-Company and the service provider for viewing by the bidders. Under Clause 6.2 the bidders were advised to regularly check e-tender portal regarding posting of amendments if any. Much emphasis has been given on Clause 6.3 and 16 of the ITB. It is submitted that Clause 6.3 is to read with Clause 16 with special emphasis that Clause 16.0 has its heading “Deadline for Submission of Bids”. Under Clause 6.2 the bidders were advised to regularly check e-tender portal regarding posting of amendments if any. Much emphasis has been given on Clause 6.3 and 16 of the ITB. It is submitted that Clause 6.3 is to read with Clause 16 with special emphasis that Clause 16.0 has its heading “Deadline for Submission of Bids”. Learned senior counsel submits that Clause 16.2 talks of extension of deadline for submission of bids by amending the bidding documents in accordance with ITB Sub-Clause 6.3, meaning thereby that the deadline for submission of the bids could be extended only when an amendment is brought any time prior to the deadline for submission of the bids. Reference has also been made to Clause 16.4 of the ITB to submit that Clause 16.4 clearly prohibits online submission of bid after expiry of submission time and in such a case the uploaded online bid on the portal shall be considered as non-responsive and shall not be processed further. 15. It is further submitted that according to Clause 16.1 of ITB Techno-Commercial bids must be submitted online no later than the time and date stated in the Bid Data Sheets. It is not in dispute that in terms of the tender conditions, in case of any conflict between the conditions prescribed in the ITB and the Bid Data Sheet, it is the Bid Data Sheets which is to be given effect to. Learned senior counsel thus submits that when the submission is that when the bids column in the Bid Data Sheets (BDS) clearly provides the deadline for bid submission date and time as stated in the IFB, there cannot be any argument that the date and time prescribed in the ‘IFB’ may be changed after expiry of time. 16. Learned senior counsel has argued that the sanctity of the tender document is of paramount importance and the same should not be allowed to be tinkered with as has been done in the present with sole intention to help the respondent no.4. 17. Learned senior counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Ramana Dayaram Shetty Vs. 17. Learned senior counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Ramana Dayaram Shetty Vs. International Airport Authority of India and others reported in (1979) 3 SCC 489 to submit that every word of a tender document should be given its meaning and the entire tender document has to be read together so that no condition stipulated is rendered otiose. 18. Learned senior counsel has further relied upon a judgment of the Hon’ble Supreme Court in the case of Nabha Power Limited (NPL) Vs. Punjab State Power Corporation Limited (PSPCL) and another reported in (2018) 11 SCC 508 to submit that the principle of business efficacy should be applied while interpreting the relevant clauses of the tender documents. He has also relied upon G.K. Transport Company Vs. Western Coalfield Ltd. (2014) SCC Online Bom. 1030 and Maharashtra Housing Development Authority Vs. Shapoorji Pallonji & Co. Pvt. Ltd. (2018) 3 SCC 13 (para 9)= AIR 2018 SC 945 to submit that the technical glitches in the system of R-4 cannot be a ground to extend the deadline. 19. Learned senior counsel has also relied upon a judgment of the Hon’ble Karnataka High Court in the case of Mahindra Sanyo Special Steel Private Limited Vs. Union of India and Anr. decided on 15th November, 2018 in which relying upon the judgment of the Hon’ble Supreme Court in the case of Maharashtra Housing Development Authority (supra) the Hon’ble Division Bench of the Karnataka High Court held that the propositions laid down by the Hon’ble Supreme Court would cover the said case and since the appellant in the said case had not submitted a valid bid by clicking the “freeze button” at 13.45 hrs on 02.04.2018, no grounds for interference was made out. The Hon’ble Division Bench of the Karnataka High Court took note of the scope of judicial review under Article 226 of the Constitution of India as enumerated in the judgment of the Hon’ble Supreme Court in the case of Tata Cellular Limited Vs. Union of India ( AIR 1996 SC 11 ) and Sterling Computers Vs. M& N Publications Limited and others ( AIR 1996 SC 51 ). 20. A number of judgments on the scope of judicial review have been cited which this Court would discuss in the later part of it’s judgment. 21. Union of India ( AIR 1996 SC 11 ) and Sterling Computers Vs. M& N Publications Limited and others ( AIR 1996 SC 51 ). 20. A number of judgments on the scope of judicial review have been cited which this Court would discuss in the later part of it’s judgment. 21. Learned senior counsel further submits that now from the report of the service provider, it is evident that there was no technical glitch on the portal of the respondent no.1-Company before 1.00 PM on 05.03.2019, the technical issues which have been made ground for amendments ‘24’ and ‘25’ is a mere pretext and it was only with intention to help respondent no.4. 22. To buttress his points, learned senior counsel submits that no public interest may be found in the impugned action of the respondent no.1 and only because project in question is of worth Rs. 10 thousand crore does not mean that in the name of public interest the respondents may be allowed to play a trick by violating the tender conditions. Learned senior counsel has gone on to argue that it may be a case of collusion between the respondent no.1 and the respondent no.4 and that nobody knows what are the reasons behind it. 23. Relying upon the judgment of the Hon’ble Supreme Court in the case of Maharashtra Housing Development Authority (supra), learned senior counsel submits that in the said case the Hon’ble Bombay High Court had issued directions in favour of the first respondent giving him a second opportunity to submit his bid accepting the case of the petitioner that he had faced technical glitch in submission of bid one time. The Hon’ble Supreme Court called for a report from the NIC after framing two issues. The first issue was whether the bid document uploaded by the first respondent can be retrieved or is irretrievably lost. The NIC filed its affidavit in which it was stated that bid documents cannot be retrieved at this time as the bid opening event has already been concluded. The first issue was whether the bid document uploaded by the first respondent can be retrieved or is irretrievably lost. The NIC filed its affidavit in which it was stated that bid documents cannot be retrieved at this time as the bid opening event has already been concluded. The Hon’ble Supreme Court held that the Hon’ble Bombay High Court was not justified in giving second opportunity to the first respondent because the documents are not retrievable and apart from that lack of any timely response of the first respondent when the system had failed to generate an acknowledgment of the bid documents, in absence of any glitch in the technology would strongly indicate that the bid submitted by the first respondent was not a valid bid. It is submitted that this case would cover the case of the petitioner as in this case also the respondent no.5 had failed to upload the bid and they could not press the submission button within time. 24. Learned senior counsel has further argued on the strength of the judgment of the Hon’ble Supreme Court in the case of Reliance Energy Ltd. & Anr. Vs. Maharashtra State Road Development Corporation Ltd. And Ors. reported in (2007) 8 SCC 1 that by the impugned amendments the respondents have altered the level playing field which has caused prejudice to the petitioner inasmuch as the petitioner has been made to wait for finalization of tender. 25. Learned senior counsel has also referred the guidelines of the CVC and various paragraphs of the writ application alleging that the petitioner has pleaded malice in law if not in fact. It is submitted that no transparency has been maintained in the matter of extension of time and it is evident from the report of respondent no.5 that there was no technical glitch at the portal of SJVN. 26. Learned senior counsel for the petitioner has also submitted that the sanctity of the tender conditions must be maintained and the negligent approach on the part of the respondent no.4 in not submitting the tender within the time prescribed is liable to be deprecated. He has relied upon a judgment of the Hon’ble Supreme Court in the case of Sorath Builders Vs. Shreejikrupa Buildcon Limited and Anr. He has relied upon a judgment of the Hon’ble Supreme Court in the case of Sorath Builders Vs. Shreejikrupa Buildcon Limited and Anr. reported in (2009) 11 SCC 9 in which after referring to the earlier judgment of the Hon’ble Supreme Court in the case of W.B. SEB Vs. Patel Engineering Company Ltd. (2001) 2 SCC 451 their Lordships held that it is equally in public interest to adhere to the rules and conditions subject to which bids are invited. Submission of Respondent no.1 Company 27. Mr. S.B. Upadhayay, learned senior counsel representing the respondent nos.1 Company submits at the outset that it is nowhere the case of the respondent no.1 Company that there was any technical glitch on it’s portal. He has taken this Court through Annexure- ‘5’ and ‘6’ to the writ application to submit that in these two Annexures the respondent no.1-Company has only referred to technical issues being faced by the bidders in submission/uploading of bid on SJVN’s e-tender Portal. It is submitted that from the report of the respondent no. ‘5’ it is evident that the technical issues were in fact being faced by the respondent no.4, the respondent no.4 had registered itself well in time on 4th March, 2019 itself and had also uploaded all the documents before 13.00 hrs. on 05.03.2019 but when the respondent no.4 did not find the submission button and was facing technical issues, he contacted the respondent no.5 i.e. the service provider and the service provider tried to resolve the difficulties being faced by the respondent no.4. It however could not become possible before 13.00 hrs. therefore, the respondent no.4 contacted the respondent no.1-Company for extension of time. It is submitted that it is also not in dispute that on 04.03.2019 the petitioner had also submitted a request with the respondent no.1-Company to extend the time for submission of the bids. 28. Learned senior counsel has brought on record Annexure-R-4/5 which is a copy of the request made by the respondent no.4 to respondent no.1-Company at 12.59 PM i.e. one minute before final time for submission of the bid. It is stated in Annexure-R-4/5 that “there was a system problem due to which we are not able to submit bid though we have uploaded all the documents”. At 1.10 PM on 05.03.2019 again a communication was received from respondent no.4 enclosing the upload status report. It is stated in Annexure-R-4/5 that “there was a system problem due to which we are not able to submit bid though we have uploaded all the documents”. At 1.10 PM on 05.03.2019 again a communication was received from respondent no.4 enclosing the upload status report. It was informed that “despite continuous interaction with your ABCPROCURE team for more than a hour prior to closing time of bid submission, bid could not be submitted though it has been fully uploaded”. At 1.54.33 hrs. on 05.03.2019 the extension of time was notified by respondent no.1-Company till 17.00 Hrs (IST) and thereafter at 16.43.03 hrs. (IST) on 05.03.2019 itself the respondent no.4 was able to submit the bid successfully. 29. The respondent no.1-Company has also brought on record a true copy of the log-sheet/event management list appearing on the portal SJVN.ABCPROCURE.COM which shows that the respondent no.4 was successful in final submission of bid on 05.03.2019 at 16.43.03 hrs. (IST). 30. Learned senior counsel submits that the respondent no.1 engaged M/se-Procurement Technologies Ltd. as a service provider for e-tendering and invited online bids on International Competitive Bidding from eligible bidders in single stage two part (i.e. part 1: techno-commercial bid and part 2 price bid) for EPC Package for Buxar Thermal Power Project (2x660 MW) at Chausa. The project is to be completed with an investment of approximately Rs.10,439.0 crore including interest during construction of Rs.1146.50 crore and financing charges of Rs.36.50 crore at January 2018 place level. The project is to be completed within a period of 52 months for first unit of 660 MW. As per the extant instructions of the Ministry of Power and CVC regarding e-tendering the bids were required to be routed through E-Procurement Technologies Ltd., a service provider accredited by the Central Vigilance Commission. 31. It is the submission of Mr. Upadhayay, learned senior counsel that ITB read with BDS empowers, in the given circumstances, the respondent Company to extend the deadline for submission of bids as envisaged in Clause 6.3 and 16.2 of the ITB. He has defended the extension of time vide Amendment ‘24’ and Amendment ‘25’ issued on 05.03.2019 in the given facts and circumstances of the case. It is submitted that the attempt of the petitioner is to avoid fair competition by larger participation of intending bidders which is one of the requirement of the CVC guidelines. 32. He has defended the extension of time vide Amendment ‘24’ and Amendment ‘25’ issued on 05.03.2019 in the given facts and circumstances of the case. It is submitted that the attempt of the petitioner is to avoid fair competition by larger participation of intending bidders which is one of the requirement of the CVC guidelines. 32. Learned senior counsel submits that the respondent no.1-Company seriously contests the allegations of discrimination or any oblique motive in extending the timeline for submission of the bids. It is submitted that the allegations of there being any oblique motive is totally unfounded and there is no reason to consider the same. Learned senior counsel submits that action of respondent no.1-Company were actuated with bonafide reasons. It is also pointed out that during the extended period of time the petitioner had also revisited its bid on at least 11 occasions, therefore the petitioner had also utilized the extended time to revisit its tender. It is submitted that only because the petitioner did not carry any change in the uploaded tender would not mean that the petitioner had not utilized the extended period for revisiting their tender conditions. 33. Learned senior counsel further submits that there is no requirement in the CVC guidelines that timeline for submission of the bids before the opening time cannot be extended. It is his submission that the respondent no.1-Company has given the level playing field to all the prospective tenderers by notifying the extension to all the bidders sufficiently in advance in order to enable them to purchase tender document and submit their respective bids. The opportunity was provided to all including the petitioner and it was not confined to one bidder. 34. Learned senior counsel further submits that the petitioner is unable to show that any prejudice has been caused to him only because the time for submission of bid has been extended. As regards the apprehension of the petitioner that the price bid was likely to be seen and known since there was no protective password it is stated in the counter affidavit that there is full proof E-tendering mechanism which makes it impossible to know the particulars of any bid submitted in advance before the date of its opening arrives. As regards the apprehension of the petitioner that the price bid was likely to be seen and known since there was no protective password it is stated in the counter affidavit that there is full proof E-tendering mechanism which makes it impossible to know the particulars of any bid submitted in advance before the date of its opening arrives. In this particular project, according to the respondent no.1-Company, there were two stages of opening the bids, the first was techno-commercial bid and only after the techno-commercial bid is opened, evaluated and after evaluation found responsive, then there is a provision for opening of their price bid. In this regard Clause 19 of the ITB provides for opening and evaluation of the bids. Learned senior counsel has pointed out from clauses 4.4 and 4.5 that the e-procurement system is based on PKI (Public Key Infrastructure) technology for encryption and cyber security. Any interference with the bid already submitted would be known immediately to both the bidders and the service provider if at all any such incident takes place. In the instant case no such incident takes place and therefore the apprehension has got no basis. 35. Learned senior counsel further submits that even though the amendment ‘24’ and ‘25’ do not mention the word ‘public interest’, it is always for the Court sitting under Article 226 of the Constitution of India to look into the public interest element present in the decision making process of respondent no.1 Company. Learned senior counsel has relied upon a judgment of the Hon’ble Supreme Court in the case of Air India Ltd. (supra) to submit that in the matter of award of contract, the Court has limited scope of judicial scrutiny and it is only when the decision making process is found vitiated by malafide, unreasonableness and arbitrariness, the same may be interfered with by way of judicial review. It is submitted that in the case of Jagdish Mandal v. State of Orissa, reported in (2007) 14 SCC 517 the Hon’ble Supreme Court has laid down the importance of public interest in commercial contracts and held that the government must have a free hand in setting the terms of the tender and it is as a necessary concomitant for administrative body in an administrative sphere. 36. Mr. 36. Mr. Upadhayay, learned senior counsel has submitted that the time was extended before opening time of bids without committing any violence to the terms of the tender. Referring to a judgment of the Hon’ble Supreme Court in the case of Michigan Rubber (India) Limited Vs. State of Karnataka and others reported in (2012) 8 SCC 216 , learned senior counsel submits that the learned counsel for the petitioner has not placed paragraph 24 of the judgment wherein the Hon’ble Supreme Court has opined that a court before interfering in tender or contractual matters in exercise of its power under Article 226 of the Constitution of India should pose to itself two questions namely; (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 that 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? 37. Thus, learned senior counsel submits that it is open to the court exercising power of judicial review under Article 226 of the Constitution of India to consider the issue of public interest before interfering with the decision taken by the employer. 38. Learned senior counsel for the respondent no.1- Company has drawn the attention of this Court towards the facts of the case of Nabha Power Limited (supra) and submits that it is only when in the facts of the case five conditions test set out in B.P. Refinery (Westernport) proprietary Ltd. V. Shire of Hastings 1977 UKPC 13: (1977) 180 CLR 266 (Aus) are fully satisfied that the implied conditions are to be read in to contract. Learned senior counsel has drawn the attention of this Court towards paragraph 72 of the judgment of the Hon’ble Apex Court in Nabha Power Ltd. (supra) to submit that the Hon’ble Apex Court has extended the word of caution by saying that it should certainly not be an endeavour of commercial courts to look to implied terms of contract. Normally a contract should be read as it reads as per its express terms. The implied terms is a concept, which is necessitated only when the Penta test comes into play. 39. Normally a contract should be read as it reads as per its express terms. The implied terms is a concept, which is necessitated only when the Penta test comes into play. 39. Learned senior counsel has tried to distinguish the case of Nabha Power Ltd. Saying that in the said case a dispute with regard to deductions of certain amount from the amount due and payable under the invoices to the appellant led to a cause for the appellant to raise a dispute. In the present case, it is pointed out that till date no contract has been concluded between the petitioner and the respondent no.1-Company and merely by participating in the tender, the petitioner has not acquired any vested right to challenge the decision of the respondent no.1-Company to extend the deadline for submission of bid. It is submitted that the litigation brought by the petitioner is only against the public interest as it is delaying the decision mzaking process. 40. Learned senior counsel has also relied upon a judgment of the Hon’ble Supreme Court in the case of Caretel Infotech Ltd. Vs. HPCL and others reported in 2019 SCC Online SC 494. The attention of this Court has been drawn towards the views of the Hon’ble Supreme Court that the court should not endeavour to give their own interpretation to contracts, more specifically tender terms, at the behest of a third party competing for the tender, rather than what is propounded by a party framing the tender. 41. Learned senior counsel submits that the essentiality of a condition in the tender document be left to the wisdom of the employer and it cannot be allowed to be questioned by way of a writ petition. On these grounds, Mr. Upadhayay, learned senior counsel submits that the writ application is fit to be dismissed as no case for interference with the action of the respondent no.1- Company is made out in the facts of the present case. Patna High Court CWJC No.4681 of 2019 dt. 30-04-2019 29/91 Submissions on behalf of R-4 42. Mr. Parag P. Tripathi, learned senior counsel representing the respondent no.4 has picked-up from where Mr. S.B. Upadhyay, learned senior counsel left. Learned senior counsel submits that Clause 6.1 and 16 of the ITB are to be interpreted by giving full effect to each and every word contained therein. 30-04-2019 29/91 Submissions on behalf of R-4 42. Mr. Parag P. Tripathi, learned senior counsel representing the respondent no.4 has picked-up from where Mr. S.B. Upadhyay, learned senior counsel left. Learned senior counsel submits that Clause 6.1 and 16 of the ITB are to be interpreted by giving full effect to each and every word contained therein. It is submitted that the ratio of the judgment of Ramanna Dayaram Shetty (supra) which has been cited on behalf of the petitioner would rather help respondent no.4. In his submissions a careful reading of the clause 6.1 of the ITB would go long way to show that clause 6.1 envisages a situation where prior to deadline for submission of the bid, the employer may, for any reason, whether at its own initiative or in response to a clarification requested by a prospective bidder, amend the bid documents. Then Clause 6.3, according to learned senior counsel is providing the procedure to be followed once the employer takes decision in terms of clause 6.1 to amend the bidding documents. It is submitted that clause 6.3 has purposely not incorporated the words ‘At any time prior to the deadline for submission of Bid’ as occurring in clause 6.1. According to him clause 6.3 in the first part talks of a wide discretion on the part of the employer to extend the deadline for submission of bids in accordance with clause 16 and in order to give a level playing field to all the bidders such extension is to be notified on the portal where all prospective bidders may see the extended time. 43. Learned senior counsel further submits that clause 16.1 Part I (Techno-Commercial) provides that the bids must be submitted online no later than the time and date stated in the Bid Data Sheets. Further clause 16.2 confers wide powers upon the employer to extend the deadline by amending the bid documents in accordance with clause 6.3. Clause 16.2 nowhere restricts the power of the employer in the matter of extension of deadline. There is nothing like clause 6.1. Further clause 16.2 confers wide powers upon the employer to extend the deadline by amending the bid documents in accordance with clause 6.3. Clause 16.2 nowhere restricts the power of the employer in the matter of extension of deadline. There is nothing like clause 6.1. It is submitted that had it been intention of the employer not to provide for any opportunity to extend the deadline for submission of the bids after expiry of the deadline, there was no reason as to why clause 16.2 of the ITB would not prescribe clearly the words ‘At any time prior to the deadline’. It is submitted that clause 16.2 confers a discretion on the employer to extend the deadline for submission of the bids by amending the bid documents in accordance with the ITB subclause 6.3 and in such case all rights and obligations of employer and bidders will thereafter be subject to the deadline as extended. It is submitted that in clause 6.3 and 16 leave no scope to entertain any doubt that there are no fetters on Employer’s discretion to extend the deadline after expiry of time notified for submission of bid, i.e. 05.03.2019, 13.00 hrs. It is further stand of the R-4 that the petitioner is unnecessarily referring to clause 6.1 which does not deal with question of extension of time for submission of bid, rather it deals with Amendment and Addendum to the bidding documents whereas clause 6.3 and 16 specifically deal with time for submission of bid. 44. Learned senior counsel has further submitted that the emphasis of learned senior counsel representing the petitioner saying that in the counter affidavit the respondent no.1-Company has made a vague statement in paragraph 2.6 that the primary reason for 24th and 25th amendment was the technical glitches/issues being faced by the certain bidders but who were those certain bidders have not been disclosed, has no significance in the context of the present case. It is submitted that the Court sitting under Article 226 of the Constitution of India is not going to be a fact finding court and unless malafide writs large in the decision making process of respondent no.1-Company no interference would be required.