ORDER/JUDGMENT – Shri Siddharth Sharma, Counsel for the petitioner. Shri P. S. Raghuvanshi, Government Advocate for the respondent No. 1/State. Shri Ravindra Dixit, Counsel for the respondent No. 2. This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs : i. The order impugned annexure P/1 may kindly be quashed. ii. Respondents may kindly be directed to adhere to the condition which has been laid down in the direction dated 14-11-2017 and after making the tender document in consonance with the said document, invite fresh bid. Any other relief which this Hon’ble Court deems fit in the facts and circumstances of the case may also kindly be granted. 2. It is submitted by the counsel for the petitioner that for the maintenance of the different residential buildings, an advertisement was issued in which the earnest money was also disclosed. However, when the tender documents were supplied, it was found that there is a substantial difference between the earnest money as shown in the advertisement and the earnest money shown in the tender documents. Further, as per clause 15.3 of the tender document, the bidders are required to quote rates inclusive of all duties, taxes, royalties and other levies; and the Employer shall not be liable for the same. However, the said condition is contrary to the circular dated 14-11-2017 Directorate, Urban Administration and Development, M. P., Bhopal by which it was directed that the financial proposal for the work contract should be submitted excluding the GST and thus it is submitted that the tender document is contrary to the departmental circular dated 14-11-2017. 3. Heard the learned counsel for the petitioner. 4. The Supreme Court in the case of ICOMM Tele Limited vs. Punjab State Water Supply and Sewerage Board and another, reported in (2019) 4 SCC 401 has held as under : – 9. It is well settled that the terms of an invitation to tender are not open to judicial scrutiny, as they are in the realm of contract, unless they are arbitrary, discriminatory, or actuated by malice. Thus, in Directorate of Education vs. Educomp Datamatics Ltd., this Court held : (SCC pp. 23 and 24, paras 9 and 12) “9. It is well settled that the terms of an invitation to tender are not open to judicial scrutiny, as they are in the realm of contract, unless they are arbitrary, discriminatory, or actuated by malice. Thus, in Directorate of Education vs. Educomp Datamatics Ltd., this Court held : (SCC pp. 23 and 24, paras 9 and 12) “9. It is well settled now that the Courts can scrutinise the award of the contracts by the Government or its agencies in exercise of their powers of judicial review to prevent arbitrariness or favouritism. However, there are inherent limitations in the exercise of the power of judicial review in such matters. The point as to the extent of judicial review permissible in contractual matters while inviting bids by issuing tenders has been examined in depth by this Court in Tata Cellular vs. Union of India. After examining the entire case law the following principles have been deduced : (SCC pp. 687-88, para 94) ‘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.’ * * * 12. 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.’ * * * 12. It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The Courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The Courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide.” 10. To similar effect is the decision in Global Energy Ltd. vs. Adani Exports Ltd., where this Court held: (SCC p. 441, para 10) “10. The principle is, therefore, well settled that the terms of the invitation to tender are not open to judicial scrutiny and the Courts cannot whittle down the terms of the tender as they are in the realm of contract unless they are wholly arbitrary, discriminatory or actuated by malice. This being the position of law, settled by a catena of decisions of this Court, it is rather surprising that the learned Single Judge passed an interim direction on the very first day of admission hearing of the writ petition and allowed the appellants to deposit the earnest money by furnishing a bank guarantee or a bankers’ cheque till three days after the actual date of opening of the tender. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench.” 5. The order of the learned Single Judge being wholly illegal, was, therefore, rightly set aside by the Division Bench.” 5. If the facts of the present case are considered, then the tender document cannot be quashed merely on the ground that there is a difference in the earnest money shown in the advertisement and in the tender document. The earnest money shown in the tender document should have been deposited by the petitioner. However, it is the case of the petitioner that because of this material variation he could not submit the tender document. 6. The counsel for the petitioner could not point out as to how a principle of estoppel would apply against the respondents, on the basis of the advertisement issued on 22-8-2019. The tender document is nothing but it is merely a notice inviting E-tender and in case if the tender is submitted, then it would amount to invitation. Unless and until there is concluded contract between the parties, no right is created in favour of the bidders/intending bidders. As the petitioner has failed to point out the violation of his fundamental right due to difference between the earnest money shown in the advertisement and in the tender document, this Court is of the considered opinion that notice inviting e-tender cannot be quashed on this ground. 7. So far as the submissions with regard to the violation of the departmental circular dated 14-11-2017 is concerned, the counsel for the petitioner could not point out as to how the notice inviting tender would be bad even it is in violation of circular dated 14-11-2017. 8. Accordingly, this petition is dismissed being devoid of merits.