ORDER : S.C. Sharma, J. 1. The petitioner before this Court, a Company registered under the Companies Act, 1956 having its office at Indore, has filed this present petition being aggrieved by Notice Inviting Tender No. TS-1444 dated 28/07/2020 issued by Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Ltd. 2. The petitioner's contention is that the petitioner Company is engaged in the business of supplying manpower and is having vast experience and expertise in providing technical/non-technical manpower to various Institutions/Central Government and State Government Undertakings/Power Distribution Companies/Banks, etc. It has also been stated that the petitioner has successfully in past provided manpower to Madhya Pradesh Madhya Kshetra Vidyut Vitaran Company Ltd., Bhopal, Sehore Circle, Sheopur Circle, Rajgarh Circle, Hoshangabad Circle, Vidisha Circle and other places. 3. The Company has worked from 2015 till date and as stated in the writ petition has obtained works worth Rs. 201 Crores. The petitioner has furnished details of work experience. It has been further stated that in the year 2019, an NIT was issued by Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Ltd. as well as other electricity Companies. Three NITs were issued and the total value of three tender was over Rs. 900 Crores. 4. Various writ petitions were preferred before this Court i.e. Writ Petition No. 7834/2020 and 7884/2020 and during the pendency of the writ petitions, the NIT was withdrawn and the petitions were disposed of as infructuous. The petitioner's contention is that again an NIT has been issued on 28/07/2020 by the sole respondent for a value of work of Rs. 453.31 Crores and the petitioner is aggrieved by the alleged arbitrary conditions i.e. Clause 3.3.3, Section-II and Clause 39.1(2) of Section-III of the Instructions to Bidder. 5. The petitioner's contention is that work experience required for participant Companies is only in respect of Central or State Departments/Undertakings/Public Sector Undertakings. There is no provision for work experience from private sector. It has been stated that in the past the work experience of work in private sector was also included and therefore, the aforesaid condition is illegal and unreasonable. 6. The another ground has been raised by the petitioner stating that there is no clause for providing work experience in respect of similar works done by the tenderer and the respondent Company has violated the circular issued by the Central Vigilance Commission dated 17/12/2002. 6. The another ground has been raised by the petitioner stating that there is no clause for providing work experience in respect of similar works done by the tenderer and the respondent Company has violated the circular issued by the Central Vigilance Commission dated 17/12/2002. It has been stated that there should have been a clause of work experience of similar nature. 7. The third ground raised in the writ petition is that there is a clause in respect of tie-breaking i.e. Clause No. 39.1.2. It has been stated that the tie-breaking is invoked in rare circumstances and the tie-breaking clause is also unreasonable. 8. The other ground raised by the petitioner is that there is relaxation clause to obtain Electrical Contractor Licence to successful bidder and the same provides that successful bidder will be granted 45 days time i.e. Clause 1(12), Section-II to obtain Electrical licence. 9. Learned counsel Shri Rishi Tiwari has vehemently argued before this Court that the aforesaid conditions are completely arbitrary and violative of Article 14 and 19 of the Constitution of India. Learned counsel has also argued before this Court that tender conditions have been tailor made with a view to exclude large number of Companies/tenderers and therefore, the action of the respondent in incorporating unreasonable tender conditions smacks of malice and discrimination, which is impermissible in law. 10. The another ground has been raised by the petitioner is that preferential treatment should have been given to the petitioner by incorporating tender conditions, however, no such preference has been given to the participants who have already done similar nature of work in past. The another ground raised by the petitioner is that requirement of work experience in Government Department/Public Sector Undertaking is arbitrary and illegal and deserves to be struck down as there is no difference in respect of experience in Government Department or in Public Sector as compared with private sector. 11. It has also been contended that the respondents have deviated from the earlier tender conditions, which were in existence in the year 2014, 2015, 2016 and 2017 in respect of similar nature of work and therefore, the impugned tender deserves to be quashed and the respondent deserves to be a command to issue a fresh tender. 12. 11. It has also been contended that the respondents have deviated from the earlier tender conditions, which were in existence in the year 2014, 2015, 2016 and 2017 in respect of similar nature of work and therefore, the impugned tender deserves to be quashed and the respondent deserves to be a command to issue a fresh tender. 12. The another ground raised by the petitioner in respect of CVC guidelines, and his contention is that they are mandatory and they should have been followed by the respondent. The petitioner's contention is that tender issued by the respondent contains unreasonable conditions and therefore, the entire tender deserves to be scrapped. 13. A rejoinder has also been filed in the matter and it has been reiterated that tender conditions have been framed to oust certain persons like the petitioner. The eligibility condition of the earlier NITs should have been taken into account, the work experience of similar nature should have been taken into account and the tender conditions of the year 2014 to 2017 should have been incorporated in the NIT and a prayer has been made for quashing the tender. The petitioner has prayed for the following reliefs:- (i) To set aside serial 1, 2, 3 and 4 of Clause 3.3.3 of Section II of Instructions to bidders of the NIT (Annexure P/1); (ii) To set aside the impugned conditions No. 1 and 2 in Clause 39.1 of Section III of Instructions to Bidder of the NIT (Annexure P/1); (iii) To direct the respondent to modify Clause 1.12 of Sec II of the NIT (Annexure P/1) making it mandatory for the bidder to possess the Class 'A' Electrical Contractor License as on the date of submission of the bid; (iv) To direct the respondent to consider the bid of the petitioner and not to treat the petitioner as disqualified in any manner; (v) Grant any other relief that this Honorable Court deems fit and just in the facts and circumstances of the case. 14. A reply has been filed in the matter and in the reply it has been stated that tender conditions have been framed in order to secure the best manpower and the clause relating to work experience with Government undertakings has rightly been introduced as the successful bidder has to work for Government undertakings and the successful bidder is not supposed to work for private sector. 15. 15. The tender condition in respect of work experience with Government departments is for all the participants and not exclusively for the petitioner. It has been stated that guidelines issued by the Central Vigilance Commission are directory in nature and they are not binding upon State of Madhya Pradesh. In respect of tie-breaking clause it has been stated that tie-breaking clause has rightly been introduced keeping in view the fact that two bidders may quote similar rates and in respect of a tie-breaking, the respondents are required to introduced some formula to select a final bidder. 16. In respect of Class 'A' Electrical Contractor Licence, it has been stated that the requirement of valid licence is necessary to the judge the bidders capacity and experience to provide required manpower and therefore, it has been made mandatory and the requirement of Class 'A' Electrical Contractor Licence is necessary for statutory compliance relating to technical manpower and therefore, 45 days has been granted to obtain a licence as it is necessary for electrical lines and substations supply and installation. No irregularity of any kind is made out in granting 45 days to successful bidder to obtain Class 'A' Electrical Contractor Licence. 17. It has also been stated that the NIT has been floated on NIC portal and as it has been floated on NIC portal, it is not in violation of GeM policy of Government of India. The respondents have stated that interference by this Court in tender conditions, as they are not arbitrary, irrational, unreasonable, is unwarranted keeping in view the judgment delivered in the case of Bharat Coking Coal Ltd. and Others Vs. AMR Dev Prabha and Others. 18. Shri Purushaindra Kaurav, learned Senior Counsel has read out the tender conditions which are subject matter of challenge and has successfully demonstrated before this Court that none of the tender condition is arbitrary. He has also argued that validity of the same tender was subjected to judicial scrutiny in Writ Petition No. 11862/2020 and this Court has dismissed the writ petition involving challenge to the same NIT. 19. Heard learned counsel for the parties length and perused the record. 20. Undisputedly, the NIT in question was unsuccessfully challenged by one Mahesh Garg in Writ Petition No. 11862/2020 and this Court vide judgment dated 02/11/2020 has dismissed the writ petition. 19. Heard learned counsel for the parties length and perused the record. 20. Undisputedly, the NIT in question was unsuccessfully challenged by one Mahesh Garg in Writ Petition No. 11862/2020 and this Court vide judgment dated 02/11/2020 has dismissed the writ petition. By the present petition, the petitioner has taken various other grounds and his contention is that the requirement of work experience in respect of public sector and Government undertaking with exclusion to private sector is arbitrary. 21. In the considered opinion of this Court the respondent is the best judge to frame the tender conditions. Its a Government of Madhya Pradesh undertaking and there appears to be no arbitrariness involved in the matter by asking for a certificate of experience from government organization/public sector and undertakings. 22. Similarly in respect of tie-breaking clause, if two tenderers have quoted same rates, some formula has to be evolved for selecting the tenderer as L1 and the criteria evolved by the respondents is again not at all arbitrary and unreasonable. 23. The challenge to condition requiring 'A' Class Electrical Licence is again a condition which is for all the bidders and the contract in the present case is basically a contract to supply manpower, however, as there are certain technical installations, 'A' class Contractor Licence (Electrical) is mandatory condition in respect of technical installation as per the Electricity Act, 2003. Time has been given to successful bidder to obtain the same within 45 days and therefore, this Court does not find any reason to interfere on this count. Tender conditions can never said to be tailor made conditions. 24. The respondent has received large number of tenders and are at the verge of finalization of the work in question. Merely because the petitioner is apprehending that he will not be L1 has filed this present petition raising all frivolous grounds. So far as the CVC guidelines are concerned, no statutory provision has been brought to the notice of this Court which makes the CVC guidelines mandatory for the State of Madhya Pradesh. They are certainly directive in nature and the State of Madhya Pradesh has followed the CVC guidelines as far as possible and therefore, on this count also the challenge is repealed. 25. They are certainly directive in nature and the State of Madhya Pradesh has followed the CVC guidelines as far as possible and therefore, on this count also the challenge is repealed. 25. Learned counsel for the petitioner has also argued before this Court that no weightage has been given to those organization who have done similar work of similar nature in past. In the considered opinion of this Court, the respondent Organization is a best judge to frame the tender conditions. Weightage of past experience has not been given to anyone and therefore, the petitioner cannot claim the past experience as a matter of right. 26. The important aspect of the case is that same tender was subjected to judicial scrutiny before this Court Writ Petition No. 11862/2020 (Mahesh Garg Vs. State of M. P. and Others) and in Writ Petition No. 13744/2020 (Balaji Security Services Pvt. Ltd. Vs. Madhya Pradesh Paschim Kshetra Vidyut Vitaran Company Ltd. and Others) and this Court on 02/11/2020 in paragraphs No. 32 to 38 has held as under:- "32-The Hon'ble Supreme Court in the case of Bharat Coking Coal Ltd. (Supra) in paragraphs No. 29 to 42 and 54 has held as under:- "29. The scope of judicial review in tenders has been explored in-depth in a catena of cases. It is settled that constitutional courts are concerned only with lawfulness of a decision, and not its soundness. Phrased differently, Courts ought not to sit in appeal over decisions of executive authorities or instrumentalities. Plausible decisions need not be overturned, and latitude ought to be granted to the State in exercise of executive power so that the constitutional separation of powers is not encroached upon. 5 However, allegations of illegality, irrationality and procedural impropriety would be enough grounds for courts to assume jurisdiction and remedy such ills. This is especially true given our unique domestic circumstances, which have demonstrated the need for judicial intervention numerous times. Hence, it would only be the decision-making process which would be the subject of judicial enquiry, and not the end result (save as may be necessary to guide determination of the former). 30. This position of law has been succinctly summed up in Tata Cellular v. Union of India (supra), where it was famously opined that: "77.... Hence, it would only be the decision-making process which would be the subject of judicial enquiry, and not the end result (save as may be necessary to guide determination of the former). 30. This position of law has been succinctly summed up in Tata Cellular v. Union of India (supra), where it was famously opined that: "77.... Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: (i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. (ii) Irrationality, namely, Wednesbury unreasonableness, (iii) Procedural impropriety." 31. But merely because the accusations made are against the State or its instrumentalities doesn't mean that an aggrieved person can bypass established civil adjudicatory processes and directly seek writ relief. In determining whether to exercise their discretion, writ courts ought not only confine themselves to the identity of the opposite party but also to the nature of the dispute and of the relief prayed for. Thus, although every wrong has a remedy, depending upon the nature of the wrong there would be different forums for redress. 32. In cases where a constitutional right is infringed, writs would ordinarily be the appropriate remedy. In tender matters, such can be either when a party seeks to hold the State to its duty of treating all persons equally or prohibit it from acting arbitrarily; or when executive actions or legislative instruments are challenged for being in contravention to the freedom of carrying on trade and commerce. However, writs are impermissible when the allegation is solely with regard to violation of a contractual right or duty. Hence, the persons seeking writ relief must also actively satisfy the Court that the right it is seeking is one in public law, and not merely contractual. In doing so, a balance is maintained between the need for commercial freedom and the very real possibility of collusion, illegality and squandering of public resources. 33. Hence, the persons seeking writ relief must also actively satisfy the Court that the right it is seeking is one in public law, and not merely contractual. In doing so, a balance is maintained between the need for commercial freedom and the very real possibility of collusion, illegality and squandering of public resources. 33. Such a proposition has been noticed by this Court even earlier in Jagdish Mandal v. State of Orissa in the following words: "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." (emphasis supplied) 34. Such conscious restraint is also necessary because judicial intervention by itself has effects of time and money, which if unchecked would have problematic ramifications on the State's ability to enter into contracts and trade with private entities. Further, it is not desirable or practicable for courts to review the thousands of contracts entered into by executive authorities every day. Such conscious restraint is also necessary because judicial intervention by itself has effects of time and money, which if unchecked would have problematic ramifications on the State's ability to enter into contracts and trade with private entities. Further, it is not desirable or practicable for courts to review the thousands of contracts entered into by executive authorities every day. Courts also must be cognizant that often-a-times the private interest of a few can clash with public interest of the masses, and hence a requirement to demonstrate effect on 'public interest' has been evolved by this Court. 7 35. It is thus imperative that in addition to arbitrariness, illegality or discrimination under Article 14 or encroachment of freedom under Article 19(1)(g), public interest too is demonstrated before remedy is sought. Although the threshold for the latter need not be high, but it is nevertheless essential to prevent bypassing of civil courts and use of constitutional avenues for enforcement of contractual obligations. 36. In the present case, although it is clear that the Division Bench of the High Court was cognizant of these principles surrounding scope of judicial review, however, it failed to effectively evaluate whether larger public interest was being affected. On the contrary, we feel that the interest of Respondent No. 1 was purely private and monetary in nature. 37. First, AMR-Dev Prabha's initial prayer sought to nullify the award of contract, which if granted, would have increased the sums payable by the State instrumentality from Rs. 2,043/- crores to Rs. 2,345/- crores. Second, the conduct of Respondent No. 1 over the course of the present proceedings, as highlighted by the appellants, further bolsters the lack of public interest. Whereas initially the first respondent was seeking quashing of the LOA issued to Respondent No. 6 owing to arbitrariness on part of BCCL and on the ground that sanctity of the auction process had been violated; later, before the Division Bench, Respondent No. 1 sought to make a new offer of Rs. 1,950/- Crores. This shows how AMR-Dev Prabha's priority was only to secure the contract and not to uphold the law or protect larger public interest. 38. 1,950/- Crores. This shows how AMR-Dev Prabha's priority was only to secure the contract and not to uphold the law or protect larger public interest. 38. Even otherwise, granting such a prayer means that Respondent No. 1 would have gotten a special opportunity of negotiation, to the detriment of all other participants, which would probably be a more egregious violation of equality envisaged under Article 14 than the procedural adherence which they were initially seeking to protect. 39. Additionally, we are not impressed with the first respondent's argument that there is a certain public interest at stake whenever the public exchequer is involved. There are various factors in play, in addition to mere bidding price, like technical ability and timely completion which must be kept in mind. And adopting such interpretation would permanently blur the line between contractual disputes involving the State and those affecting public law. This has aptly been highlighted in Raunaq International Ltd. v. IVR Construction Ltd. "11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by court intervention, the proposed project may be considerably delayed thus escalating the cost far more than any saving which the court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the court should not intervene under Article 226 in disputes between two rival tenderers." (emphasis supplied) 40. Further, the first respondent has failed to demonstrate which public law right it was claiming. The main thrust of AMR-Dev Prabha's case has been on the fact that at 1:03 PM on 05.05.2015 it was declared the lowest bidder (or L1). Further, the first respondent has failed to demonstrate which public law right it was claiming. The main thrust of AMR-Dev Prabha's case has been on the fact that at 1:03 PM on 05.05.2015 it was declared the lowest bidder (or L1). However, being declared the L-1 bidder does not bestow upon any entity a public law entitlement to award of the contract, as noted in Maa Binda Express Carrier v. North-East Frontier Railway: "8. The scope of judicial review in matters relating to award of contracts by the State and its instrumentalities is settled by a long line of decisions of this Court. While these decisions clearly recognise that power exercised by the Government and its instrumentalities in regard to allotment of contract is subject to judicial review at the instance of an aggrieved party, submission of a tender in response to a notice inviting such tenders is no more than making an offer which the State or its agencies are under no obligation to accept. The bidders participating in the tender process cannot, therefore, insist that their tenders should be accepted simply because a given tender is the highest or lowest depending upon whether the contract is for sale of public property or for execution of works on behalf of the Government. All that participating bidders are entitled to is a fair, equal and non-discriminatory treatment in the matter of evaluation of their tenders. It is also fairly well settled that award of a contract is essentially a commercial transaction which must be determined on the basis of consideration that are relevant to such commercial decision. This implies that terms subject to which tenders are invited are not open to the judicial scrutiny unless it is found that the same have been tailor-made to benefit any particular tenderer or class of tenderers. So also, the authority inviting tenders can enter into negotiations or grant relaxation for bona fide and cogent reasons provided such relaxation is permissible under the terms governing the tender process." (emphasis supplied) 41. Instead, precedent laid down by this Court in Master Marine Services (P) Ltd. v. Metcalfe & Hodg Kinson (P) Ltd., illustrates that if a prayer for re-bidding is on account of a desire to get a better price, then involvement of Article 14 of the Constitution would not be made out. 42. Instead, precedent laid down by this Court in Master Marine Services (P) Ltd. v. Metcalfe & Hodg Kinson (P) Ltd., illustrates that if a prayer for re-bidding is on account of a desire to get a better price, then involvement of Article 14 of the Constitution would not be made out. 42. Further, regular recourse was made over the course of proceedings by learned senior counsel for the first respondent on terms of the NIT. Findings in the impugned order too were based upon disputed interpretation of such contractual terms. Thus, it is clear that there was neither any public law right of the first respondent which was affected, nor was there any public interest sought to be furthered. 54. In light of the above discussion, the appeal filed by Bharat Coking Coal Ltd., as well as connected appeals filed by M/s. RK Transport and M/s. C1 India Pvt. Ltd., are allowed. Resultantly, the appeal filed by AMR-Dev Prabha is dismissed. The Division Bench judgment of the High Court dated 12.04.2018 is set-aside and the writ petition filed by AMR-Dev Prabha is dismissed. No order as to costs." In light of the aforesaid judgment, it is a well settled preposition of law that scope of judicial review in tender matters is quite limited and the Courts are not the appellate Courts to sit over in appeal over the decision of executive authority or instrumentalities. 33. A similar view has been taken by the Hon'ble Supreme Court in the case of Municipal Corporation, Ujjain Vs. BVG India Ltd. (Supra). Paragraphs No. 9 to 11 of the aforesaid judgment reads as under:- "9. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by this Court in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ], wherein this Court observed 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, there are inherent limitations in exercise of that power of judicial review. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. However, there are inherent limitations in exercise of that power of judicial review. The 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. 10. The modern trend points to judicial restraint in administrative action. The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. 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. 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 a quasi-administrative sphere. However, the decision must not only be tested by the application of the Wednesbury [Associated Provincial Picture Houses v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] principle of reasonableness, but must also be free from arbitrariness and not affected by bias or actuated by mala fides. [See the judgment in Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138 ]] 11. In Sterling Computers Ltd. v. M & N Publications Ltd. [Sterling Computers Ltd. v. M & N Publications Ltd., (1993) 1 SCC 445 ], this Court held as under: (SCC p. 458, paras 18 & 19) "18. While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision-making process". While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision-making process". In this connection reference may be made to Chief Constable of the North Wales Police v. Evans [Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL)] where it was said that: (WLR p. 1161: All ER p. 144a) '... The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court.' By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. The courts have inherent limitations on the scope of any such enquiry. But at the same time as was said by the House of Lords in the aforesaid case, Chief Constable of the North Wales Police v. Evans [Chief Constable of the North Wales Police v. Evans, (1982) 1 WLR 1155 : (1982) 3 All ER 141 (HL)] the courts can certainly examine whether "decision-making process" was reasonable, rational, not arbitrary and violative of Article 14 of the Constitution. 19. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract. But, once the procedure adopted by an authority for purpose of entering into a contract is held to be against the mandate of Article 14 of the Constitution, the courts cannot ignore such action saying that the authorities concerned must have some latitude or liberty in contractual matters and any interference by court amounts to encroachment on the exclusive right of the executive to take such decision." In light of the aforesaid judgment, as in the present case no mala-fides are involved, the question of interference shall certainly amounts to encroachment on the exclusive right of the executive to take such decision. 33. In the case of Montecarlo Limited (Supra) the apex Court in paragraphs No. 19 to 25 has held as under:- "19. In Sterling Computers Ltd. v. M&N Publications Ltd. [Sterling Computers Ltd. v. M&N Publications Ltd., (1993) 1 SCC 445 ], the Court has held that under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. It has also been observed that by way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry. 20. In Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] a three-Judge Bench after referring to earlier decisions culled out certain principles, namely, (a) the modern trend points to judicial restraint in administrative action, (b) the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made, (c) 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, and (d) the Government must have freedom of contract and that permits a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. 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, and (d) the Government must have freedom of contract and that permits a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. Hence, the Court has laid down that the decision must not only be tested by the application of the Wednesbury principle [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 (CA)] of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. 21. In Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] the Court has held that: (SCC p. 531, para 22) "22. ... 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." 22. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. [Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd., (2005) 6 SCC 138 ], it has been ruled that (SCC p. 148, para 15) the State can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It has been further held that 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 powers 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. 23. Even when some defect is found in the decision-making process, the Court must exercise its discretionary powers 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. 23. In B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. [B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd., (2006) 11 SCC 548 ] a two-Judge Bench, after referring to series of judgments has culled out certain principles which include the one that where a decision has been taken purely on public interest, the Court ordinarily should apply judicial restraint. 24. In Michigan Rubber (India) Ltd. [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ] the Court referred to the earlier judgments and opined that before a court interferes in tender or contractual matters, in exercise of power of judicial review, it should pose to itself the question 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 judicial conscience cannot countenance. The emphasis was laid on the test, that is, whether award of contract is against public interest. 25. Recently in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 : (2016) 8 Scale 765 ] a two-Judge Bench eloquently exposited the test which is to the following effect: "We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given." The Hon'ble Supreme Court in the aforesaid case has held that a contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Evaluating tenders and awarding contracts are essentially commercial functions. If a decision relating to award is bona-fide and in public interest, Court will not exercise the power of judicial review. In the present case, the decision taken by the Company is a decision taken during the COVID-19 Pandemic keeping in view various factors and no mala-fides involved in the matter. In fact by issuing the fresh tender as argued by learned Senior Counsel, the State exchequer is being subjected to financial gain as the commission/concession which is being now paid is less then the commission/concession which was being paid earlier. 34. The Hon'ble Supreme Court in the case of Tamilnadu Generation and Distribution Corporation Ltd. (Supra) has again dealt with the scope of interference in contractual matters and has held that Courts should not sit in appeal over financial consultant's assessment. 35. In the case of JSW Infrastructure Limited (Supra), the apex Court in paragraph No. 8 to 10 has held as under:- "8. We may also add that the law is well settled that superior courts while exercising their power of judicial review must act with restraint while dealing with contractual matters. A three-Judge Bench of this Court in Tata Cellular v. Union of India [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] held that: (i) there should be judicial restraint in review of administrative action; (ii) the court should not act like court of appeal; it cannot review the decision but can only review the decision-making process; (iii) the court does not usually have the necessary expertise to correct such technical decisions; (iv) the employer must have play in the joints i.e. necessary freedom to take administrative decisions within certain boundaries. 9. In Jagdish Mandal v. State of Orissa [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] this Court held that evaluation of tenders and awarding contracts are essentially commercial functions and if the decision is bona fide and taken in the public interest the superior courts should refrain from exercising their power of judicial review. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer. 10. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] this Court held as follows: (SCC pp. In the present case there are no allegations of mala fides and the appellant consortium has offered better revenue sharing to the employer. 10. In Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd. [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] this Court held as follows: (SCC pp. 825-26, paras 13 & 15-16) "13. ... a mere disagreement with the decision-making process or the decision of the administrative authority is no reason for a constitutional court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional court interferes with the decision-making process or the decision. xxxxx 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given. 16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by Nmrcl to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by Nmrcl was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court." The view taken in Afcons [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. This was certainly not the case either before the High Court or before this Court." The view taken in Afcons [Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818 ] was followed in Montecarlo Ltd. v. NTPC Ltd. [Montecarlo Ltd. v. NTPC Ltd., (2016) 15 SCC 272 ] Thus it is apparent that in contractual matters, the writ courts should not interfere unless the decision taken is totally arbitrary, perverse or mala fide." In the aforesaid case, it has been held that writ Courts should not interfere unless the decision taken is totally arbitrary, preserve or mala-fide. In the case of AMI Art Creations and Offset Printers (Supra) a similar view has been taken. 36. The petitioners have not been able to point out any mala-fide. The Competent Authority was competent to annul the tender keeping in view the Clause-28.1. The same has been done in the larger public interest. The terms of the tender notice are not at all wholly arbitrary, discriminatory or actuated by malice. Hence, they cannot be subjected to judicial review. 37. This Court in the case of Indermani Mineral (India) Private Limited Vs. The State of Madhya Pradesh and Two Others (Writ Petition No. 25000/2019, decided on 06/02/2020), which was again a case relating to challenge to the tender conditions, in paragraphs No. 61 to 81 has held as under:- 61. The scope of judicial scrutiny has been considered by the Hon'ble Apex Court time and again. In the case of Afcons Infrastructure Limited v/s. Nagpur Metro Rail Corporation Limited reported in 2016 (16) SCC 818 , the Apex Court has held as under:- "We may add the owner or the employer of a project, having authored the tender documents, is the best persons to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there a malafide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner of employer of a project may give an interpretation to the tender documents that is no acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given". 62. It is possible that the owner of employer of a project may give an interpretation to the tender documents that is no acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given". 62. The Apex Court in the case of Reliance Telecom Limited & Others v/s. Union of India & Others reported in 2017 (4) SCC 269 has again dealt with scope of interference in respect of the tender. 63. In the case of Tata Cellular v/s. Union of India reported in 1994 (6) SCC 651 again the scope of judicial review has been looked into by the Hon'ble Apex Court. In the aforesaid case, it has been held that the terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract and the Government must be allowed to have a fair play in the joints as it is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. 64. The Apex Court in the case of Monarch Infrastructure (P) Limited v/s. Ulhasnagar Municipal Corporation & Others reported in 2000 (5) SCC 287 was again dealing with the N.I.T. And it has been held that it cannot say whether the conditions are better than what were prescribed earlier, for in such matters, the authority calling the tenders is the best judge. The Court declined to restore status quo ante. 65. In the case of Cellular Operator Association of India & Others v/s. Union of India & Others reported in 2003 (3) SCC 186 , the Apex Court has held that in respect of the matters affecting policy and those that require technical expertise, the Court should show deference to, and follow the recommendations of the Committee which is more qualified to address the issues. 66. The Apex in the case of Association of Registration Plates v/s. Union of India & Others reported in 2005 (1) SCC 679 has held that formulating conditions of a tender document and awarding a contract of the nature of those for supply of HSVRPs, greater latitude is required to be conceded to the state authorities. 67. In the case of Union of India v/s. Hindustan Development Corporation reported in 1993 (3) SCC 499 , again the scope of judicial interference has been dealt with. 68. 67. In the case of Union of India v/s. Hindustan Development Corporation reported in 1993 (3) SCC 499 , again the scope of judicial interference has been dealt with. 68. In the case of Tata Cellular v/s. Union of India reported in 1994 (6) SCC 651 , it has been held that mere power to choose cannot be termed arbitrary. The Government has an interest in selecting the best and use of such power for collateral purpose is interdicted by Article 14 of the Constitution of India. 69. In the case of Maa Binda Express Carrier & Another v/s. Northeast Frontier Railway & Others reported in 2014 (3) SCC 760 , it has been held that the bid/tender, in response to a NIT, is only an offer which State or its agencies are under no obligation to accept. It has been further held that bidders participating in the tender process cannot insist that their bids should be accepted simply because a bid is highest or lowest. 70. In the case of Municipal Corporation, Ujjain & Others v/s. BVG India Limited & Others reported in 2018 (5) SCC 287, it has been held that the terms of the tender are not open for judicial scrutiny as the invitation to tender is a matter of contract. 71. In the case of Monarch Infrastructure (P) Limited v/s. Commissioner, Ulhasnagar Municipal Corporation & Others reported in 2000 (5) SCC 287 , it has been held that the best judge to determine, whether the revised terms and conditions of the tender process were better than the earlier ones, is the authority who has invited the tender and not the Court. 72. In the case of Directorate of Education & Others v/s. Educomp Datamatics Limited & Others reported in 2004 (4) SCC 19 , it has been held that the terms of initiation to tender are not open to the judicial scrutiny the same being in the realm of contract. It has been further held that the Government must have a free hand in setting the terms of the tender. 73. In the case of Air India Limited v/s. Cochin International Airport Limited reported in (2000) 2 SCC 617 , it has been held that award of a contract, whether it is by a private party or by public body or the State, is essentially a commercial transaction. 73. In the case of Air India Limited v/s. Cochin International Airport Limited reported in (2000) 2 SCC 617 , it has been held that award of a contract, whether it is by a private party or by public body or the State, is essentially a commercial transaction. It has further been held that commercial decision considerations, which are paramount, are commercial considerations and 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. 74. In the case of Master Marine Services (P) Limited v/s. Metcalfe & Hodkinson (P) Limited & Another reported in (2005) 6 SCC 138 , it has been held that the State can choose its own method to arrive at a decision and the State and its instrumentalities have duty to be fair to all the concerned. It has been further held that even when some defect is found in decision making process, Court must exercise its extraordinary writ jurisdiction with great caution and that too in furtherance of public interest and larger public interest in passing an order of intervention is always a relevant consideration. 75. In the case of Haryana Urban Development Authority & Others v/s. Orchid Infrastructure Developers Private Limited reported in (2017) 4 SCC 243 , it has been held that if the State or its instrumentalities act reasonably, fairly and in public interest in awarding the contract, the interference by the Court is very restrictive since no person can claim Fundamental right to carry on business with the Government. 76. In the case of Reliance Telecom Limited & Another v/s. Union of India & Another reported in (2017) 4 SCC 269 , it has been held that in the matter relating to complex auction procedure having enormous financial ramification, the interference by the Courts based upon any perception, which is though to be wise or assumed to be fair, can lead to a situation which is not warrantable and may have unforeseen adverse impact. 77. 77. In the case of Meenakshi Mills Limited v/s. Union of India reported in (1974) 1 SCC 468 , it has been held whether there is any unfairness involved in determining, the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby the disproportion of the imposition, the prevailing condition at the relevant point of time, enter into judicial verdict. It has further been held that the unreasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade of business in question. 78. In the case of Lala Hari Chand Sarda v/s. Mizo District Council & Another reported in (1967) 1 SCR 1012 , it has been held that canalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. 79. In the case of Krishnan Kakkanth v/s. Government of Kerala & Others reported in (1997) 9 SCC 495 , it has been held that a citizen has no Fundamental Right to insist on Government or any other individual to do business with him and the Government is entitled to enter into business with any person or class of persons to the exclusion of others. 80. In the case of Global Energy Limited & Another v/s. Adani Exports Limited & Others reported in (2005) 4 SCC 435 , it has been held that unless terms of a tender notice are wholly arbitrary, discriminatory or actuated by malice, are not subject to judicial review. It has further been held that 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. 81. This Court does not find any reason to interfere with the tender in the peculiar facts and circumstances of the case. 81. This Court does not find any reason to interfere with the tender in the peculiar facts and circumstances of the case. The Governments and their undertakings do have free hand in setting terms of the tender and unless the terms and conditions are arbitrary, discriminatory, malafide or actuated by bias, the scope of interference by Courts does not arise as held in the case of Michigan Rubber (India) Limited (supra)" 38. In light of the aforesaid, as no illegality of any kind has been committed by the respondents in annulling the first tender, and thereafter, issuing a second tender notice, the terms and conditions are not arbitrary, discriminatory or actuated by malice, the question of interference by this Court in the peculiar facts and circumstances of the case does not arise. Accordingly, both the writ petitions are dismissed. No order as to costs." 27. This Court has dismissed two writ petitions by an order dated 02/11/2020 challenging the same tender and therefore, on the basis of grounds raised by the petitioner, this Court does not find any reason to interfere with the process of tender and to set aside the tender notice as prayed for by the petitioner. Resultantly, no case for interference is made out in the matter. The writ petition is accordingly dismissed. No order as to costs. Certified copy as per rules.