JUDGMENT : Parth Prateem Sahu, J. 1. Challenge in this writ petition is to the declaration of respondent No.6 to be eligible for participating and opening of price bid in tender proceeding bearing Notice Inviting Tender ('NIT') No.183/G/2020-21 dated 17.08.2020 (Tender No.67223) along with petitioner and one another, declaring respondent No.6 to be 'L-1 and not considering the representation submitted by petitioner and taking appropriate action on it against respondent No.6. 2. Case of the petitioner is that, 4th respondent had issued Tender Notice bearing NIT No.183/G/2020-21 dated 17.08.2020 (Tender No.67223) for the work of “W.M.M. & B.T. PATCH REPAIR, DRAIN AND SHOULDER REPAIR OF VARIOUS ROAD OF SUB-DIVISION NO.2 BILASPUR (HEAD QUARTER BILASPUR 1, 2 AND BELTARA SECTION) UNDER DIVISION NO.1 BILASPUR”. The bid submission start date as mentioned in the tender document was 17.08.2020. Bid submission due date (online) was 07.09.2020. Last date for physical submission (EMD and affidavit in Envelope A) by speed post or Registered post was 09.09.2020 and bid opening date was scheduled on 10.09.2020. Three bidders participated in the tender proceeding i.e. petitioner, respondent No.6 and Saurabh Mishra, submitted their documents as per terms and conditions mentioned in tender document. Bidding system was a two envelope system. The documents were to be submitted for techno-commercial in 'Envelope-A' and price bid in another envelope. After evaluation of techno-commercial bid, all the three bidders (petitioner, respondent No.6 and Saurabh Mishra) have been declared to be qualified. On 07.10.2020, price bids of all the three participants were opened, in which, respondent No.6 has been declared to be 'L-1'. Petitioner immediately submitted representation before the 4th respondent mentioning therein that details mentioned in document certified by Executive Engineer and submitted by respondent No.6 to be not correct. Respondent No.6 gave false information of having Hot Mix Plant since last two years as on 01.04.2020, as required under Clause 9 of the tender document along with other ground that under Annexure-1 & 2 bidders are required to submit certified copies of work order to be issued by Engineer In-charge not below the rank of Executive Engineer, but respondent No.6 has only submitted the certificate and not certified copy/copies of work order, but even then, respondent No.6 has been declared to be eligible and his price bid was opened. When no action was taken on representation dated 09.10.2020 by respondents, petitioner has filed instant writ petition initially with following reliefs : “10.1 That, this Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction and direct Respondents No.1 to 5 to disqualify the Respondent No.6 to participate in the bidding process of NIT No.183/G/2020-21 dated 17/08/2020 (Tender No.67223) [Annexure P/1]; 10.2 That, this Hon'ble Court may kindly be pleased to issue appropriate writ/order/direction for cancellation/ rejection of the technical bid of the Respondent No.6 for the Tender No.67223 and consequences thereof; 10.3 That, this Hon'ble Court may kindly be pleased to grant any other relief as it may deems fit and appropriate.” 3. During the pendency of writ petition, petitioner amended the grounds and relief clause of writ petition and further sought for following reliefs : “10.2.1 That, this Hon'ble Court may kindly be pleased to issue appropriate writ(s)/order(s)/direction(s) to declare petitioner successful bidder (L-1) and direct respondents to issue work order of the work in NIT dated 17/08/2020 to the petitioner; 10.2.2 That, this Hon'ble Court may kindly be pleased to issue appropriate writ(s)/order(s)/direction(s) to hold that the conduct of the Respondent No.5 suffers from malafide and was only done to only done to give illegal favoritism to the Respondent No.6; 10.2.3 That, this Hon'ble Court may kindly be pleased to issue appropriate writ(s)/order(s)/direction(s) to constitute an enquiry committee to enquire into conduct of the Respondent No.5 and 6.” 4. In the writ petition, petitioner has specifically pleaded that in the subject tender notification, requirement of Clause 9 to be mandatory. The list of plant and machinery certified and shown details with regard to for fulfillment of requirement under Clause 9 is false. Respondent No.6 does not have Hot Mix Plant. Respondent No.6 has also submitted his bid in another tender proceeding of similar work, in which, identical requirement was there. Respondent No.6 submitted the same documents as filed in present tender proceeding and Superintending Engineer (National Highway) upon suspicion, has conducted spot inspection of site and found that no Hot Mix Plant was available with respondent No.6 along with other discrepancies. Respondent No.6 was disqualified in the said tender proceeding vide order dated 07.10.2020 issued by Superintending Engineer (NH) (Annexure P/4). Respondent No.6 was disqualified in the said tender proceeding vide order dated 07.10.2020 issued by Superintending Engineer (NH) (Annexure P/4). The authorities while evaluating techno-commercial bid in present tender proceeding, have not considered the documents enclosed along with tender document particularly the list of plant and machinery certified by respondent No.5. List submitted by respondent No.6 and certified is undated and false. It is certified only to give illegal favour to respondent No.6. On the date of issuance of tender notification, respondent No.6 was not owning Hot Mix Plant. Availability of Hot Mix Plant by the means given under Clause 9 of tender document is mandatory. The certified copy of work order is also not attached with Annexure 1 and 2 but for the certificate issued by the officer. 5. The pleadings made by the petitioner were sought to be rebutted by respondent-State, pleading their in that condition of Hot Mix Plant would arise only after release of mobilization advance, which could be done only after bidder becoming successful and work order is issued in its name. Referring to Clause 7(d) of terms and conditions, it is pleaded that in this also, it is mentioned as “Procurement against mobilization advances”. That Annexure P/4 to be of different tender proceeding and further that, whenever the physical verification would be conducted and if all the contentions are taken to be correct, respondent No.6 would have been disqualified (as mentioned in para 8 of reply). 6. Respondent No.6 while denying the facts and grounds pleaded in the writ petition, further pleaded that requirement under Clause 9 is to furnish online certificate of availability of plant and machinery as mentioned therein. Requirement of Hot Mix Plant can be fulfilled up to the stage of release of mobilization advance and that stage is yet to come and contractor can make a request for advance within one month of work order. Respondent No.6 has already enclosed certificate issued by the Executive Engineer Shri K.R. Gangeshri, who is posted in Public Works Department ('PWD'), Division No.1, Bilaspur since 03.10.2019. The Executive Engineer has certified the plant and machinery and other details mentioned in the list of plant and equipments for building and road. As per requirement the certificate should not to be more than 24 months old which is also satisfied. The Executive Engineer has certified the plant and machinery and other details mentioned in the list of plant and equipments for building and road. As per requirement the certificate should not to be more than 24 months old which is also satisfied. It is further pleaded that Hot Mix Plant was purchased much prior to submission of bid and invoice of the same is filed with writ petition are dated 30.05.2020 and 06.06.2020. Megha Engineering from whom respondent No.6 purchased the Hot Mix Plant is altogether a different entity. Office of respondent No.6 and Megha Engineering are in the same accommodation owned by Shri Sandeep Sahu. The disqualification in other tender cannot be a ground for declaring respondent No.6 to be disqualified in subject tender proceeding. It is also pleaded that respondent No.6 has been wrongly disqualified vide Annexure P/4 (in another tender); as on today, Hot Mix Plant has been installed for execution of such work, as such, requirement of tender document stands fulfilled. Requirement of Annexure-2 & 3 is for assessing the bid capacity, there is no mandatory requirement for tenderer to attach certified copies of work order. The word used for the said requirement is “may” and not “shall”. After completion of bid opening proceeding i.e. price bid, respondent No.6 has been declared to be 'L-1'. The employer is the best person to evaluate the requirements of terms and conditions under tender document. As per settled law, Courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable and the Court should not sit like a Court of appeal. The pleadings made by the petitioner are against respondent-State, who are competent to justify their action. 7. Respondent-State subsequently filed additional reply pleading therein that objection is taken only after petitioner being declared 'L-2'. The difference of quote between L-1 and L-2 is of Rs.13,12,900/-. Referring to the case of Tata Cellular v. Union of India reported in (1994) 6 SCC 651 , it is pleaded that it is only the decision making process which has to be judged and there is no illegality in the decision making process. Requirement under Clause 9 of the NIT is that plant and machinery of the bidder/contractor to be certified by the Executive Engineer. Requirement under Clause 9 of the NIT is that plant and machinery of the bidder/contractor to be certified by the Executive Engineer. The Executive Engineer certified the list after due verification of the site, at which, plant and machinery was being in the process of installation and admitted that the list certified by Executive Engineer does not contain the date. The Executive Engineer who certified the list is posted in present place of posting since 14.10.2019, he himself visited the site and verified the position found plant and machinery to be available at the site, but was in the process of installation. Requirement under Clause 9 is only to adjudge the capacity of contractors participating. The ground raised with regard to disqualification for non-compliance of requirement under Clause 11(B) is not correct because mandatory condition is that Annexure-2 has to be certified by the Executive Engineer. The ground raised with regard to letter (Annexure P/4) dated 07.10.2020, it is pleaded that each and every tender has to be dealt separately. The Executive Engineer has visited the site himself and found Hot Mix Plant to be in the process of installation. It is further pleaded that list of plant and machinery were certified after visiting the site and verifying the invoices submitted by the contractor. 8. Shri Bharat Gulabani, learned counsel for the petitioner submits that as per Clause 9 of the tender document, contractor has to submit online list certified by competent authority of availability of computerized Hot Mix Plant with him (owned or lease or by procurement). The plant and machinery are to be certified by Executive Engineer or Equivalent Officer. The list of plant and machinery certified should not be older than 24 months. Requirements as mentioned in Clause 9 are mandatory. List of plant and machinery submitted by the petitioner along with Annexure P/5 certified by Executive Engineer is undated. In chart prepared for type of equipments and their maximum age as on 01.04.2020 Hot Mix Plant with Electronic Controls (Minimum 40/60 TPH Capacity) has been shown to be of maximum age of two years, owned by the petitioner. It was further mentioned that said plant is in use in some other work. Respondent No.6 has submitted invoice online towards fulfillment of Clause 9 wherein the date of invoice has been shown as 30.05.2020 and 06.06.2020. It was further mentioned that said plant is in use in some other work. Respondent No.6 has submitted invoice online towards fulfillment of Clause 9 wherein the date of invoice has been shown as 30.05.2020 and 06.06.2020. He submits that perusal of list certified by Executive Engineer (PWD) in the letter-head of Maa Bhagwati Construction is a false certificate issued by the Government Officer. As per details mentioned in the certificate, Hot Mix Plant is two years old as on 01.04.2020, but the invoice annexed with the document shows that respondent No.6 has purchased Hot Mix Plant only on 30.05.2020 and 06.06.2020. He pointed out that the address mentioned in the GST invoice available at page Nos.93 and 94 of the writ petition would show address of seller of Hot Mix Plant and respondent No.6 to be one and the same i.e. Shop GS-39, CLC Plaza, Mangla Chowk, Bilaspur. He submits that both the business cannot run in one shop or under one roof. It is argued that Megha Engineering is not dealing with Hot Mix Plant business. He further argued that National Highway Authority has issued tender notification for repair of roads after rainy season for Pondi-Pandariya-Mungeli-Takhatpur-Bilaspur road. The same document issued by Executive Engineer (PWD) was submitted. The Superintending Engineer found the entries made in the certified list of document to be suspicious. He visited the spot along with Executive Engineer (National Highway Authority) and contractor i.e. respondent No.6 on the address shown by him, they did not find Hot Mix Plant. The details shown in list of plant and machinery were incorrect and respondent No.6 does not fulfill the eligibility criteria. It is contended that from the documents submitted by respondent No.6, as well as letter issued by the Superintending Engineer (National Highway Authority) would show that respondent No.6 does not have Hot Mix Plant on the date of submission of bid, but false information was given by respondent No.6 along with his bid document for illegal gain. It is next contended that respondent No.6 does not fulfill the requirement under Clause 11(B) of tender document wherein the bidder has to submit Annexure-1 along with certified copies of work order and details of work mentioned therein to be certified by the Executive Engineer. The respondent No.6 has submitted only certificate and not the certified copies of work order. It is next contended that respondent No.6 does not fulfill the requirement under Clause 11(B) of tender document wherein the bidder has to submit Annexure-1 along with certified copies of work order and details of work mentioned therein to be certified by the Executive Engineer. The respondent No.6 has submitted only certificate and not the certified copies of work order. The respondent authorities have not evaluated techno-commercial bid of respondent No.6 strictly in accordance with terms and conditions of tender document and extended undue favour. Even the complaint/ application/representation made by the petitioner was not considered. The act of respondent-State is per se wrong, illegal and arbitrary. He lastly submitted that respondent No.6 be declared disqualified, declare the petitioner as 'L-1' and to further direct the respondent-State to issue work order in favour of the petitioner. 9. Per contra, Shri Vikram Sharma, learned Deputy Government Advocate for the State submits that in subject tender proceeding, three contractors participated and submitted their bids. Techno commercial bids submitted by the contractors were evaluated on 25.09.2020, in which, all the three bidders became successful. The price bids were opened on 07.10.2020 and respondent No.6 emerged as 'L-1'. He further submits that 24 months' mentioned in Clause 9 of tender document is with regard to life of certificate and not the age of concerned plant and machinery. The bid capacity is to be evaluated as per Annexure A-1 & A-2. Respondent No.6 has performed the work as prime contractor as shown in Annexure-1 and Annexure A-2 is the existing commitment of respondent No.6. He submitted that under the note of Annexure A-1 & A-2, there is specific mention that tenderer “may” attach certified copies of work order issued by Engineer in charge not below the rank of Executive Engineer. The submission of certified copy of work order is not mandatory. Respondent No.6 has submitted certificate issued from the Engineer concerned which is in conformity with the terms of the tender document. Referring to page No.24 of additional reply, it is argued that certificate issued by Executive Engineer showing the existing commitments and ongoing all classes of civil engineer construction work, which is dated 07.09.2020. It is further contended that document enclosed at page No.25 along with additional reply has been certified by the Executive Engineer after visiting the site. Referring to page No.24 of additional reply, it is argued that certificate issued by Executive Engineer showing the existing commitments and ongoing all classes of civil engineer construction work, which is dated 07.09.2020. It is further contended that document enclosed at page No.25 along with additional reply has been certified by the Executive Engineer after visiting the site. It is lastly contended that petitioner has not raised this objection that the information supplied by respondent No.6 is not correct at the time of techno-commercial evaluation, hence, petitioner is not entitled for any relief as sought for. 10. Shri Anand Dadariya, learned counsel for respondent No.6 while opposing the submissions made by learned counsel for the petitioner submits that as per terms and conditions of tender document, contractor can even purchase plant and machinery after getting mobilization advance. He pointed out that under the terms and conditions of tender document, there is provision for advances to contractors and submits that contractor can make an application for advance within one month of the order to commence the work. He accepted the submission of learned counsel for the petitioner that invoice of purchase of Hot Mix Plant is of May 2020 and June 2020, but it is argued that those documents are of prior to submission of the bid. It is contended that though the address shown in invoice of purchaser and seller is one and the same, but they are two different registered entities and the GST is also paid towards purchase of Hot Mix Plant, hence, submission made by the learned counsel for the petitioner could not be accepted. Executive Engineer after his joining in October 2019, has certified the list of plant and machinery, which was accepted. The employer and authority considering the documents submitted along with the bid, are the best judge and Courts cannot interfere while exercising powers of judicial review in tender matters. He further argued that even if prayer of petitioner has to be considered then, it is as per original relief claimed by him i.e. pre-amended relief wherein relief sought is only for disqualifying the 6th respondent. The relief sought for by him through amendment could not be considered as it is an afterthought, after filing of the reply. Upon comparison of financial bid of petitioner and respondent No.6, financial bid of the petitioner was found to be on higher side by Rs.13,12,900/-. The relief sought for by him through amendment could not be considered as it is an afterthought, after filing of the reply. Upon comparison of financial bid of petitioner and respondent No.6, financial bid of the petitioner was found to be on higher side by Rs.13,12,900/-. It is pointed out that Hot Mix Plant is a big machinery, delivered in small parts which requires assembling them on spot for its installation. The authorities as mentioned in Annexure P/4 stating them to have visited on spot, is not correct as they have visited some other spot i.e. premise of Megha Engineering, where they could not found plant and machinery owned by respondent No.6 there. Annexure P/4 could not be taken into consideration in the present tender proceeding. In support of his contention, he places reliance on the judgments passed by Hon'ble Supreme Court in case of State of Jharkhand and Others v. CWE-SOMA Consortium reported in (2016) 14 SCC 172 , Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited and Another reported in (2016) 16 SCC 818 , Silppi Constructions Contractors v. Union of India and Another reported in (2020) 16 SCC 489 and Bharat Coking Coal Limited and Others v. Amr Dev Prabha and Others reported in (2020) 16 SCC 759 . He lastly submits that respondent-State in support of their reply has filed photographs of Hot Mix Plant installed at site which clearly shows that the respondent No.6 is having Hot Mix Plant. 11. At this stage, Shri Vikram Sharma, learned Deputy Government Advocate representing the respondent-State submits that after declaring respondent No.6 to be 'L-1' till date work order is not issued in his favour. 12. We have heard learned counsel for the respective parties and perused the pleadings and documents placed on record. 13. The petitioner has raised two grounds in the writ petition; firstly, giving false information in the document submitted, for fulfillment of Clause 9, which is mandatory and secondly, non fulfillment of Clause 11(B). For better understanding the relevant Clauses, we find it appropriate to extract them as under : “9. Contractor shall submit online the certificate of availability with him (owned or leased or by procurement against mobilization advances regarding computerized hot mix plant. For better understanding the relevant Clauses, we find it appropriate to extract them as under : “9. Contractor shall submit online the certificate of availability with him (owned or leased or by procurement against mobilization advances regarding computerized hot mix plant. Sensor Paver/mechanical paver Vibratory roller, {for 50 mm or more thickness of B.M./D.B.M. (with M.S.S./S.D.B.C. & B.C.} and other plants and machineries duly certified by Executive Engineer or Equivalent Officer (certificate shall not older than 24 months) otherwise tender will be disqualified while opening.” “11(B) (For tender value from Rs.1 crore to Rs.5 crore) All the bidder shall have to submit the information of bid capacity (Appendix 1), information in annexure 2, 3 and affidavit (annexure 3). They will only be qualified if the available bid capacity is equal or more than the amount put to tender.” 14. Clause 11(B) talks about Appendix-1, hence, we find it appropriate to extract the note given in Appendix/Annexure-1, which reads as under : “Note:-(i) Enclose certificates from Engineer (s) in charge (Not below the rank of Executive Engineer or equivalent) for value of work remaining to be completed, value of work done, anticipated date of completion. (ii) Tenderer may attach certified copies of work order issued by Engineer in charge not below the rank of Executive Engineer.” 15. Perusal of Clause 9 would show that contractors have to mandatorily submit list of plant and machinery available with him including computerized Hot Mix Plant to be owned or leased or by procurement against mobilization advances. It further prescribes for the certificate issued by the Executive Engineer or Equivalent Officer shall not be older than 24 months and consequence of not submitting certificate as required is also mentioned that, 'otherwise tender will be disqualified while opening'. In the case at hand, it is not in dispute that all the three contractors participated in tender proceeding and submitted online document. Upon opening of Techno-commercial bid all the three bidders were declared qualified. 16. The ground raised by the petitioner is that details of plant and machinery submitted by respondent No.6 are false on its face upon considering it with the invoice of Hot Mix Plant. Upon opening of Techno-commercial bid all the three bidders were declared qualified. 16. The ground raised by the petitioner is that details of plant and machinery submitted by respondent No.6 are false on its face upon considering it with the invoice of Hot Mix Plant. To appreciate the submission made by learned counsel for the parties, we have perused the documents placed on record as Annexure P/5 including list of plant and equipments and list of key plant and equipments be deployed on contract work (building and road). The second list is on the letter head of respondent No.6 and certified by the Executive Engineer of PWD. No date is mentioned in the list nor under signature of Executive Engineer certifying the same. In the chart prepared by respondent No.6 to show availability of plant and equipments with him, there are columns of type of equipment, maximum age of equipment as on 01.04.2020, number of equipment available, condition and nature of possession of plant and equipment to be owned or leased or to be purchased and whether plant and machinery are being used in some work and some other details also to be provided. Hot Mix Plant is mentioned at Sl.No.16 in the chart prepared by respondent No.6 showing maximum age of same to be two years as on 01.04.2020, condition to be good, owned by respondent No.6 and being used in some other work. 17. Perusal of aforementioned description mentioned and shown by respondent No.6 at page No.92 of the writ petition would show that respondent No.6 was having Hot Mix Plant since last two years as on 01.04.2020 in his ownership and the same is being used in some work. Executive Engineer has certified the said details mentioned by respondent No.6. The details mentioned at page No.92 with regard to Hot Mix Plant do not reconcile with GST invoice at page Nos.93 and 94 of the writ petition, which is dated 30.05.2020 and 06.06.2020. 18. During the course of argument, learned counsel for respondent No.6 has admitted that Hot Mix Plant was purchased only in May 2020 and June 2020 and he further clarified that as Hot Mix Plant is very big machinery has been delivered through transportation in several parts, which is required to be installed by assembling them. 18. During the course of argument, learned counsel for respondent No.6 has admitted that Hot Mix Plant was purchased only in May 2020 and June 2020 and he further clarified that as Hot Mix Plant is very big machinery has been delivered through transportation in several parts, which is required to be installed by assembling them. He referred to Annexure R/4 i.e. photographs which is filed by the respondent-State to show that respondent No.6 is owing the Hot Mix Plant. When this Court specifically pointed out from the document at page No.92, list of key plant and equipments, certified by the Executive Engineer that age of Hot Mix Plant has been shown to be two years and to be owned, then how new purchase as argued can be accepted to which they could not able to answer the query raised by this Court satisfactorily. 19. From perusal of documents placed at page Nos.92 to 95 and submission made by learned counsel for respondent No.6 that Hot Mix Plant has been purchased and it was at the stage of installation by assembling, it appears that the Executive Engineer in collision with respondent No.6 had wrongly certified that respondent No.6 owned the Hot Mix Plant, which is two years old. As per the list certified by Executive Engineer, respondent No.6 purchased it two years back and further that, it is in use at some other work. If the case of respondent No.6 itself is that he purchased Hot Mix Plant only in the month of May 2020 and June 2020, how the age of Hot Mix Plant can be two years and to be used in some work. The most surprising fact is that the stand of State is that the Executive Engineer certified it after visiting the site. From the documents, pleadings and arguments made before this Court, it can be culled out that the list of plant and machinery submitted by respondent No.6 does not bear correct fact and false information is given along with tender document by respondent No.6. 20. The other aspect of the case is that Executive Engineer who issued the certificate is Shri K.R. Gangeshri as mentioned by respondent No.6. He himself filed reply on his affidavit dated 19.01.2021. 20. The other aspect of the case is that Executive Engineer who issued the certificate is Shri K.R. Gangeshri as mentioned by respondent No.6. He himself filed reply on his affidavit dated 19.01.2021. Perusal of reply would show that there is specific pleading that condition of Hot Mix Plant would arise only after release of mobilization advance, which could be done only after becoming successful and issuance of work order in its name. Referring to Clause 7(d) of terms and conditions of NIT, it is argued that as per terms of tender, purchase can be against the mobilization advance. The Executive Engineer in his affidavit has clearly mentioned that whenever physical verification would be conducted and found if all the contentions are not to be correct, respondent No.6 would be disqualified. Executive Engineer who certified the list while submitting reply, does not mention that he visited the site and found respondent No.6 owned Hot Mix Plant and was in use at particular place, but only mentions that requirement of Hot Mix Plant would arise after release of mobilization advance after becoming of the contractor successful. The conduct of Executive Engineer who certified the documents and submitted reply becomes more serious and grave after filing of additional reply wherein it is pleaded that Executive Engineer after visiting the site, found plant and machinery to be available and only thereafter, list was certified. Had this been the position, Executive Engineer could have very well taken a stand before this Court in the first reply filed in the month of January 2021. The stand taken by respondent-State under the affidavit of same Executive Engineer in additional reply dated 10.03.2021, is an attempt to somehow patch-up the wrong committed by him. Even in additional reply, Executive Engineer has not mentioned the date, on which, he visited the site. In additional reply, he stated that it is at the stage of installation. 21. Respondent No.6 submitted his reply on 11.02.2021, but respondent No.6 has not submitted photographs of Hot Mix Plant to show in a stage of installing at his site, but it is the respondent-State who filed photographs showing that it is at the stage of installation along with additional reply. 21. Respondent No.6 submitted his reply on 11.02.2021, but respondent No.6 has not submitted photographs of Hot Mix Plant to show in a stage of installing at his site, but it is the respondent-State who filed photographs showing that it is at the stage of installation along with additional reply. The stage of installation has been shown before the Court for the first time only in the month of March 2021, which clearly shows that plant and machinery certified by the Executive Engineer mentioning its age of two years as on 01.04.2020 cannot be said to be correct. Respondent No.6 has given false information. This fact and ground raised by the petitioner becomes more clear by going through Annexure P/4, which is the document issued by the Superintending Engineer of National Highway Authority, Division Bilaspur wherein it is specifically mentioned that Superintending Engineer, Executive Engineer and respondent No.6 visited the site shown by respondent No.6 in that tender proceeding and not found Hot Mix Plant available and thereafter, disqualified respondent No.6 for that tender proceeding, i.e. Tender No.4(2)/SA/2020-21/Bilaspur dated 08.09.2020. 22. 22. Relevant portion of letter dated 07.10.2020 (Annexure P/4) disqualifying respondent No.6 for giving wrong information and submitting false documents is extracted below for ready reference : ^^fo"k;karxZr mijksDr dk;Z gsrq bl dk;kZy; }kjk fufonk vkea=.k lwpuk dzekad 4¼2½@lk-@2020&21@fcykliqj] fnukad 08-09-2020 ¼f}rh; vkea=.k½ }kjk ¼Nk;kizfr layXu½ fnukad 18-09-2020 rd vkuykbZu fufonk vkeaf=r dh xbZ Fkh] ftlesa vkids }kjk Hkkx fy;k x;k gSA vkids }kjk ¼vkuykbu½ mDr fufonk vkea=.k lwpuk esa fufgr 'krZ esa dafMdk dzekad 07 (special condition) ds mi dafMdk dzekad 05 vuqlkj Mkej ds dk;Z gsrq [kqn ¼ekfydkuk½ dk gkV feDl IykaV gksuk vko';d gksus ds ifjis{; esa **Vh- ,.M ih- ¼QkeZ 2 ch½ esa gkWV feDl IykaV** laca/kh vfHkys[k vkuykbZu ¼Ldsu dkih½ viyksM fd;k x;k gS] vkids }kjk izLrqr vfHkys[kksa ¼vkuykbu izkIr½ dks tkap esa mDr vfHkys[k ds **lansgkLin** izrhr gksus ds QyLo:i v/kksgLrk{kjdrkZ] dk;Zikyu vfHk;ark ,oa vkids lkFk la;qDr :i ls vkea=.k ij crk;s x;s IykaV LFky ¼xzke & Hkjuh½ esa es?kk bathfu;fjax dsEil dk fujh{k.k fnukad 01-10-2020 dks izkr% 11-00 cts fd;k x;kA fujh{k.k mijkar ik;k x;k fd vkids }kjk vkuykbZu izLrqr vfHkys[kksa rFkk crk;s vuqlkj ekSds ij dksbZ Hkh IykaV@e'khujh LFkkfir ugha gSA rRi'pkr~ okafNr IykaV@e'khujh ds vHkko esa vkidks **vUgZ** ?kksf"kr fd;k x;kA 01- fufonkdkj ds mDr fufonk vkea=.k lwpuk esa fufgr 'krZ esa dafMdk dzekad 07 (special condition) ds mi dafMdk dzekad 05 vuqlkj Mkej ds dk;Z gsrq [kqn ¼ekfydkuk½ dk gkV feDl IykaV gksuk vko';d gksus dk Li"V mYys[k gSA mijksDr ds ifjis{; esa vkids }kjk **Vh- ,.M ih- ¼QkeZ 2 ch½ esa gkWV feDl IykaV** laca/kh vfHkys[k vkuykbZu ¼Ldsu dkih 02 ux Vh- ,.M ih- fyLV ,oa bZuokbZl e;½ viyksM fd;k x;k gS] fdUrq mDr Vh- ,.M ihfyLV esa ls izFke fyLV ¼Nk;kizfr layXu½ fnukad 10-05-2016 dks dk;Zikyu vfHk;ark] yks-fu-fo- ¼Hk@l½ eqaxsyh laHkkx] eaqxsyh }kjk tkjh fd;k x;k gS] tcfd fu;ekuqlkj mDr fyLV 24 efguksa ls iqjkuh ugha gksuk pkfg,A rFkk f}rh; fyLV ¼Nk;kizfr layXu½ dk;Zikyu vfHk;ark] yks-fu-fo- ¼Hk@l½ fcykliqj laHkkx dzekad 1] fcykliqj }kjk tkjh fd;k x;k gS] ftlesa tkjh fd;s tkus dk fnukad dk mYys[k ugha gS ,oa mDr fyLV ds ljy dzekad **16** ds dkWye dzekad **8** (in these are in the some work, mention the details) esa nf'kZr “ yes” gS] fdUrq ekSds ij mDr IykaV@e'khujh LFkkfir ugha gksus ij mi;ksx esa yk;k tkuk vFkok crk;k tkuk laHko gh ugha gSA blfy, mDr fyLV dh dksbZ oS|rk izrhr ugha gksus ds QyLo:i mDr fyLV dks vekU; fd;k tkrk gSA^^ 23. In that proceedings also, same list of plant and machinery was submitted by respondent No.6 and that has been found to be factually wrong. After issuance of letter dated 07.10.2020 (Annexure P/4), respondent No.6 wrote a letter mentioning that they have mentioned that they have submitted invoice of purchase of Hot Mix Plant. Perusal of letter at page No.73 along with application for taking document on record does not controvert the finding recorded by Superintending Engineer (NH) in Annexure P/4, but for saying that they have submitted invoice of purchase of Hot Mix Plant. 24. From the aforementioned facts and documents available on record and further submission of learned counsel for respondent No.6, there cannot be any other conclusion but for that the respondent No.6 submitted false information in list of plant and machinery showing Hot Mix Plant to be owned by him since last two years and is in use. Respondent No.5 even before this Court has submitted wrong fact only to justify list of plant and machinery certified by him as on 01.04.2020. This clearly shows that respondent No.5 has acted against the interest of respondent-State. This we are observing because the Chief Engineer of PWD, Raipur had issued a letter to Superintending Engineer (PWD), Division Bilaspur wherein it is specifically mentioned in paragraph-5 that requirement of Hot Mix Plant to be owned by contractor, mandatorily to be included in the terms and conditions of tender document. The said letter was issued by Chief Engineer on 02.07.2020. The Chief Engineer might have issued letter on account of some past experiences and to remove any hurdle faced by the Department in proper execution of work. 25. The contention of the respondent-State that the petitioner has not raised any ground at the time of techno-commercial evaluation is concerned, it appears that petitioner only on 07.10.2020 after issuance of letter (Annexure P/4) got knowledge of wrong committed by respondent No.6 and immediately thereafter, on 09.10.2020 raised an objection. Till this time except declaring respondent No.6 as 'L-1', no other order was issued. Respondent-State instead of considering the objection raised by the petitioner, has not decided the same and sat tight over it. Rather, made an attempt to justify the wrong committed by respondent No.5. 26. Till this time except declaring respondent No.6 as 'L-1', no other order was issued. Respondent-State instead of considering the objection raised by the petitioner, has not decided the same and sat tight over it. Rather, made an attempt to justify the wrong committed by respondent No.5. 26. It is for the awarder to consider whether the terms and conditions have been fulfilled, the documents filed by the contractors in support of their bid to be correct and proper and once it is brought to the notice of the awarder that the false document or information has been submitted by any of the bidders, then it is for him to immediately verify the fact. If it is found that false information is given or submitted false document, then it is the duty of the awarder to take immediate appropriate action, in which respondent-State in the case at hand had failed, instead they are trying to justify their illegal action and giving undue favour to respondent No.6. 27. From the aforementioned facts, it is apparent that respondents No.1 to 5 are trying to protect respondent No.6 who has committed wrong in connivance with respondent No.5. Representation filed by petitioner was not considered and decided. Out of the two stands, either the stand taken by respondent No.5 or the stand taken by respondent No.6 can be correct, and not both. Both the stands are contradictory to each other. In view of the stand taken by respondent No.6 bidder that Hot Mix Plant was purchased only in May 2020 and June 2020, the case of the contractor himself is that prior to that he was not owning Hot Mix Plant, it was in process of installation, whereas the Execute Engineer in additional reply supported by affidavit stated that he certified the availability of Hot Mix Plant to be two year old as on 01.04.2020 after visiting the site. In view of the stand taken by respondent No.6, the pleadings of respondent No.5 Executive Engineer in reply that he found Hot Mix Plant at site is per se false. This appears to be the reason that two different stands are taken by respondent-State in their reply and additional reply filed by the same Officer In-charge of the case i.e. Executive Engineer who certified the list of plant and machinery of respondent No.6. This appears to be the reason that two different stands are taken by respondent-State in their reply and additional reply filed by the same Officer In-charge of the case i.e. Executive Engineer who certified the list of plant and machinery of respondent No.6. It is expected from the authorities to examine all the documents submitted by the bidders minutely, because in the age of teeth bite competition, the person giving false information to get the contract by adopting illegal means has to be dealt with the iron hand. No leniency can be shown to such persons and strict action is required to be taken against them. 28. True, it is that Hon'ble Supreme Court in several judgments held that Courts should be slow in interfering with tender proceeding initiated by the employer, but at the same time, Hon'ble Supreme Court have also held that Courts can interfere when the decision making process of employer is erroneous, extending undue benefit and favour to some of the bidders participating therein. In the case at hand, it is a clear case that respondent No.5 Executive Engineer of the department certified the list of plant and machinery of respondent No.6 without visiting the site, certified the Hot Mix Plant to be available which were not available on spot and even before this Court narrated wrong facts that he certified the list after visiting the site. He certified the Hot Mix Plant to be two year old, when it is a case of contractor himself that the Hot Mix Plant is new, purchased in May 2020 and June 2020. Respondent-State even after bringing to their knowledge the mischief played by respondent No.6 with the help of respondent No.5 by submitting false information, tried to protect respondent No.6, hence, it can be said that the decision making process of respondent-State to be erroneous, only to grant illegal and undue favour to respondent No.6. 29. The Hon'ble Supreme Court in case of Tata Cellular (supra) has mentioned the grounds in which the Courts can interfere i.e. “77. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. The duty of the court is to confine itself to the question of legality. Its concern should be : 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment 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, Wednesday unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind reported in (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".” 30. In case of Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. and Others reported in (1997) 1 SCC 738 , Hon'ble Supreme Court has held thus :- “10. Therefore, though the principle of judicial review cannot be denied so far as exercise of contractual powers of government bodies are concerned, but it is intended to prevent arbitrariness or favoritism and it is exercised in the larger public interest or if it is brought to the notice of the court that in the matter of award of a contract power has been exercised for any collateral purpose.....” 31. In case of Jagdish Mandal v. State of Orissa and Others reported in (2007) 14 SCC 517 , Hon’ble Supreme Court has held thus :- “22.…..Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; (ii) Whether public interest is affected.....” 32. In case of Michigan Rubber (India) Limited v. State of Karnataka and others reported in (2012) 8 SCC 216 , Hon'ble Supreme Court has held thus :- “24. Therefore, a court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? and (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 33. In case of Silppi Constructions Contractors (supra), the Hon'ble Supreme Court has held thus :- “19. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out...........” 34. The Hon'ble Supreme Court in case of Vidarbha Irrigation Development Corporation v. M/s. Anoj Kumar Garwala reported in (2019) 2 SCALE 134 has held thus : “15. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out...........” 34. The Hon'ble Supreme Court in case of Vidarbha Irrigation Development Corporation v. M/s. Anoj Kumar Garwala reported in (2019) 2 SCALE 134 has held thus : “15. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfluous – they must be given meaning and their necessary significance. Given the fact that in the present case, an essential tender condition which had to be strictly complied with was not so complied with, the appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court.” 35. The terms and conditions if made mandatory by the employer to be complied with by all the bidders, then it is to be seen that all the terms and conditions as specified in the tender document are fulfilled by all the bidders. The terms and conditions mentioned in the tender document cannot be ignored. The awarder of the contract cannot condone lack of such compliance. In the instant case, respondent No.6 not only failed to fulfill the mandatory condition of contract but has submitted false information consciously. This action or deed of respondent no.6 in very clear terms has projected that it is not a law abiding firm preparing and submitting documents with wrong information in collusion with respondent No.5 (Government Officer). As it is not the petition before this Court for taking any action against respondents No.5, we are refraining ourselves to make any comment on it and leave it with respondents No.1 to 4 to consider and take appropriate action, if they so desire. Before us, the main contention and relief sought for declaring the respondent No.6 to be disqualified technically and other consequential relief. 36. Considering the facts of the case at hand in the light of the above rulings of Hon'ble Supreme Court, we are of the view that the respondent-State acted in extending undue favour to respondent No.6, which made the decision making process to be erroneous. 36. Considering the facts of the case at hand in the light of the above rulings of Hon'ble Supreme Court, we are of the view that the respondent-State acted in extending undue favour to respondent No.6, which made the decision making process to be erroneous. For the foregoing discussions, we declare the respondent No.6 as disqualified. We direct the respondents No.1 to 5 to proceed further with the subject tender and to pass appropriate order/orders in accordance with law. The writ petition stands allowed.