ORDER : Tarlok Singh Chauhan, J. Respondents No. 1 to 4 invited tender for the work “Providing Decentralized Community Owned stand alone Solar Powered Water Supply Scheme in various villages (under Jal Jeevan Mission) of Paonta Constituency in Tehsil Paonta Sahib, Distt. Sirmour H. P.” vide Notice Inviting Tender (for short 'NIT') dated 16.07.2021. The date of opening tender was fixed for 26.07.2021, however, due to some technical reasons, the date of opening was extended to 02.08.2021. The date of online submission of bids was w.e.f. 16.07.2021 to 02.08.2021 and the date of physical submission of Earnest Money Deposit (for short 'EMD') in the shape of FDR/CDR and cost of tender documents/tender fee in the shape of Demand Draft (for short 'DD')/Bankers Cheque payable at Paonta Sahib and other tender documents as per the conditions of NIT was 02.08.2021 at 11:00 AM. The EMD and cost of tender documents were demanded in both options i.e. online mode as well as offline mode. 2. After completion of all codal formalities, the tender was opened on due date i.e. 02.08.2021 at 11:30 AM and following four bidders had uploaded their bids online:- Sr. No. Name of Bidders/Firms/Contractor 1. M/s Dogra Construction Pvt. Ltd., Hamirpur (Petitioner in present petition) 2. M/s H. C. Bansal Engineers and Contractors, Paonta Sahib, Distt. Sirmour H.P. (respondent No. 6) 3. M/s Hydraulic Engineering Co. Solan, Distt. Solan H.P. (respondent No. 7. 4. M/s Unipro Techno Infrastructure Pvt. Ltd., Chandigarh (respondent No. 8. 3. The respondents downloaded the documents uploaded by aforesaid bidders and scrutinised the same. It was found that the contractor at Serial No. 1 i.e. Petitioner had paid the earnest money as well as cost of tender documents through online payment gateway mode at e-tendering website, whereas the bidders at serial No. 2 to 4 i.e. respondents No. 6 to 8 in the present petition had uploaded the copies of Demand Drafts and FDRs/CDRs on account of tender fee/cost and EMD respectively but had not submitted the FDRs/CDRs and DDs physically on 02.08.2021 at 11:00 AM in accordance with the conditions of NIT. 4. The matter was placed before the Zonal Level Technical Committee in its meeting held on 13.09.2021 wherein the petitioner as well as respondents No. 6 to 8 were called to attend the same. 4. The matter was placed before the Zonal Level Technical Committee in its meeting held on 13.09.2021 wherein the petitioner as well as respondents No. 6 to 8 were called to attend the same. The authorised person of the petitioner as well as respondents No. 7 and 8 attended the meeting, whereas respondent No. 6 did not attend the same. 5. The Committee decided to reject the technical bid of respondents No. 6 to 8 in light of the conditions of the tender, constraining the petitioner to file the instant petition for the grant of following substantive reliefs:- (A) That the order dated 20.09.2021 (Annexure P-9) issued by the respondent No. 4 cancelling the online tender may be quashed and set aside. (B) That the decision of the Zonal Level Technical Committee dated 1309.2021 (Annexure P-11) on the basis of which the order dated 20.09.2021 has been issued may also be quashed and set aside. (C) That the Notice Inviting tender that has been issued after issuance of Order dated 20.09.2021 (Annexure P-10) calling for submission of fresh tender document from 20.09.2021 to 30.09.2021 may also be quashed and set aside. (D) That the condition of submission of physical Earnest Money Deposit in the Notice Inviting Tender (Annexure P-5) may be read down keeping in view the instructions issued by the respondent No. 1 dated 30.10.2018 and 26.06.2020. (E) That alternatively the condition of deposit of physical Earnest Money Deposit at the time as prescribed in the Notice Inviting Tender may be held to be unreasonable, arbitrary and violative of Article- 14 of the Constitution of India. (F) That the respondents may thereafter be directed to consider the bid documents of petitioner alongwith those of respondent Nos. 5 to 7 and proceed ahead with tender process and open the financial bids. We have heard learned counsel for the parties and have gone through the material placed on record. 6. (F) That the respondents may thereafter be directed to consider the bid documents of petitioner alongwith those of respondent Nos. 5 to 7 and proceed ahead with tender process and open the financial bids. We have heard learned counsel for the parties and have gone through the material placed on record. 6. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decisions of the Hon’ble Supreme Court in R.D. Shetty vs. International Airport Authority (1979) 3 SCC 488 , Fertilizer Corporation Kamgar Union vs. Union of India (1981) 1 SCC 568 , Assistant Collector, Central Excise vs. Dunlop India Ltd. (1985) 1 SCC 260 = 1984 (2) SCALE 819 , Tata Cellular vs. Union of India (1994) 6 SCC 651 = 1995 (1) Arb. LR 193, Ramniklal N.Bhutta vs. State of Maharashtra (1997) 1 SCC 134 = 1996 (8) SCALE 417 and Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) 1 SCC 492 =1999 (1) Arb. LR 431 (SC). 7. The award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision consideration which are of paramount are commercial considerations. 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. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. 8. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Though that decision is not amenable to judicial review, the Court can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. 8. 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 power 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. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene. 9. It is well settled that the Court should not ordinarily interfere in commercial activities under its power of judicial review and reference in this regard can conveniently be made to a fairly recent judgment of the Hon’ble Supreme Court in Silppi Constructions Contractors vs. Union of India and another etc. etc. (2019) 11 Scale 592 , wherein it was observed as under: “6. Aggrieved, the original writ petitioner is before us in these petitions. This Court in a catena of judgments has laid down the principles with regard to judicial review in contractual matters. It is settled law that the writ courts should not easily interfere in commercial activities just because public sector undertakings or government agencies are involved. 7. In Tata Cellular vs. Union of India (1994) 6 SCC 651 , it was held that judicial review of government contracts was permissible in order to prevent arbitrariness or favouritism. The principles enunciated in this case are : “94. ……. (1) The modern trend points to judicial restraint in administrative action. (2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.” 8. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) 1 SCC 492 , this Court held that superior courts should not interfere in matters of tenders unless substantial public interest was involved or the transaction was mala fide. 9. In Air India Limited vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , this Court once again stressed the need for overwhelming public interest to justify judicial intervention in contracts involving the State and its instrumentalities. It was held that Courts must proceed with great caution while exercising their discretionary powers and should exercise these powers only in furtherance of public interest and not merely on making out a legal point. 10. In Karnataka SIIDC Ltd. vs. Cavalet India Ltd. (2005) 4 SCC 456 , it was held that while effective steps must be taken to realise the maximum amount, the High Court exercising its power under Article 226 of the Constitution is not competent to decide the correctness of the sale affected by the Corporation. 11. In Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. (2005) 6 SCC 138 , it was held that while exercising power of judicial review in respect of contracts, the Court should concern itself primarily with the question, whether there has been any infirmity in the decision making process. 11. In Master Marine Services (P) Ltd. vs. Metcalfe & Hodgkinson (P) Ltd. (2005) 6 SCC 138 , it was held that while exercising power of judicial review in respect of contracts, the Court should concern itself primarily with the question, whether there has been any infirmity in the decision making process. By way of judicial review, Court cannot examine details of terms of contract which have been entered into by public bodies or State. 12. In B.S.N. Joshi & Sons Ltd. vs. Nair Coal Services Ltd. (2006) 11 SCC 548 , it was held that it is not always necessary that a contract be awarded to the lowest tenderer and it must be kept in mind that the employer is the best judge therefor; the same ordinarily being within its domain. Therefore, the court's interference in such matters should be minimal. The High Court's jurisdiction in such matters being limited, the Court should normally exercise judicial restraint unless illegality or arbitrariness on the part of the employer is apparent on the face of the record. 13. In Jagdish Mandal vs. State of Orissa (2007) 14 SCC 517 , it was held: “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. 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……..” 14. In Michigan Rubber (India) Ltd. vs. State of Karnataka & Ors. (2012) 8 SCC 216 , it was held that if State or its instrumentalities acted reasonably, fairly and in public interest in awarding contract, interference by Court would be very restrictive since no person could claim fundamental right to carry on business with the Government. Therefore, the Courts would not normally interfere in policy decisions and in matters challenging award of contract by State or public authorities. 15. In Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. (2016) 16 SCC 818 , it was held that 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. 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. 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 Montecarlo vs. NTPC Ltd. AIR 2016 SC 4946 , it was held that where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. 16. In Montecarlo vs. NTPC Ltd. AIR 2016 SC 4946 , it was held that where a decision is taken that is manifestly in consonance with the language of the tender document or subserves the purpose for which the tender is floated, the court should follow the principle of restraint. Technical evaluation or comparison by the court would be impermissible. The principle that is applied to scan and understand an ordinary instrument relatable to contract in other spheres has to be treated differently than interpreting and appreciating tender documents relating to technical works and projects requiring special skills. The owner should be allowed to carry out the purpose and there has to be allowance of free play in the joints. 17. In Municipal Corporation, Ujjain and Another vs. BVG India Ltd. and Others (2018) 5 SCC 462 , it was held that the authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. The Court cannot compel the authority to choose such undeserving person/company to carry out the work. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in redoing the entire work. 18. Most recently this Court in Caretel Infotech Limited vs. Hindustan Petroleum Corporation Limited and Others (2019) 6 Scale 70 observed that a writ petition under Article 226 of the Constitution of India was maintainable only in view of government and public sector enterprises venturing into economic activities. This Court observed that there are various checks and balances to ensure fairness in procedure. It was observed that the window has been opened too wide as every small or big tender is challenged as a matter of routine which results in government and public sectors suffering when unnecessary, close scrutiny of minute details is done. 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. 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 clearcut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in judges’ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realise that the authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” 10. Similar reiteration of law can be found in another recent judgment of the Hon’ble Supreme Court in M/s N. Ramachandra Reddy vs. State of Telangana and others, AIR 2019 SC 4182 . 11. Adverting to the facts of the case, it would be noticed that the condition regarding the physical submission of the EMD in the shape of FDR/CDR and the cost of tender document/tender fee in the shape of DD/Bankers Cheque was inserted by the following CPWD Works Manual 2019, Chapter 5, Clause 5.1.3 i.e. Mode of Deposit of Earnest Money (Annexure R-IV) and as per Standard Operating Procedures (for short 'SOPs') for CPWD Works Manual, 2019, Chapter-5, SOPS No. 5/1, Mode of Deposit Earnest Money (Annexure R-V) and further the same condition was also inserted in form PWA-6, Clause 17, 18 & 19 (Annexure P-5) by following the SOPs for CPWD Works Manual 2019 (Annexure -21), Clause-9. 12. At this stage, it would be relevant to quote Clause 9, which reads as under :- “Earnest Money in the form of Treasury Challan or Demand Draft or Pay Order or Banker's Cheque or Deposit at Call Receipt or Fixed Deposit Receipt (drawn in favour of Executive Engineer.............) shall be scanned and uploaded to the e-Tendering website within the period of bid submission. The original EMD should be deposited either in the office of Executive Engineer inviting bids or division office of any Executive Engineer, CPWD within the period of bid submission. The EMD receiving Executive Engineer (including NIT issuing EE/AE) shall issue a receipt of deposition of earnest money deposit to the bidder in a prescribed format (enclosed) uploaded by tender inviting EE in the NIT”. 13. It is not in dispute that after respondents No. 6 to 8 failed to physically submit the EMD in the shape of FDR/CDR, the petitioner was the sole company left in the fray and obviously being a single tenderer the work could not have been allotted in its favour. 14. 13. It is not in dispute that after respondents No. 6 to 8 failed to physically submit the EMD in the shape of FDR/CDR, the petitioner was the sole company left in the fray and obviously being a single tenderer the work could not have been allotted in its favour. 14. Learned counsel for the petitioner would argue that no reasonable opportunities have been granted to respondents No. 6 to 8 to submit EMD physically and the official respondent ought to have extended the time for furnishing EMD physically and having failed to do so, it cannot be held that the petitioner- Company was single bidder, therefore, the tender could not have been allotted in its favour. 15. To say the least, the submission is totally fallacious firstly, the petitioner has not holding brief or representing the respondents and that apart the respondents had ample time from 16.07.2021 to 02.08.2021 upto 11:00 AM to deposit the EMD, but they failed to do so. 16. In addition to the above, if that was not enough, it needs to be noticed that none of these respondents i.e. respondents No. 6 to 8 have assailed the action of the respondents in rejecting the bid and not extending the time to submit the EMD. 17. As observed above, the power of judicial review in interfering with tender or contractual matter is extremely limited. Therefore, before interfering, the Court is required to pose 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. 18. In the present case, on asking these questions, it is more than apparent that the decision taken by the respondents to adhere to the terms and conditions of the NIT were certainly not irrational in any manner whatsoever or intended to favour anyone. 19. That apart, it is more than settled that the parties issuing the tender (the Employer) has the right to punctiliously and rigidly enforce the terms of the tender. 19. That apart, it is more than settled that the parties issuing the tender (the Employer) has the right to punctiliously and rigidly enforce the terms of the tender. If a party approaches a Court for an order restraining the employer from strict enforcement of the term of the tender, the Court will decline to do so. 20. Equally settled is the proposition that the Courts must defer to the understanding of clauses in tender documents unless there is perversity or mala fide. The owner or the employer of the project having authored the tender documents, is the best person to understand and appreciate its requirement and interpret its documents. 21. As regards the contention of the petitioner that the condition regarding physical deposit of the FDR is arbitrary, suffice it to say, the same needs to be rejected on the simple ground that these conditions, as observed above, have been taken from the CWPD manual and SOPs. The EMD alongwith cost of tender documents was demanded by the respondents in both options i.e. online payment gateway system available with e-tendering website of the website as well as in offline mode i.e. CDR/FDR/DD. In pursuance to the amendment issued by the Government vide letter dated 29.11.2018, there is no reason to read down the conditions regarding the physical deposit of EMD and cost of tender documents. 22. The petitioner having participated in the tender process cannot at this stage challenge the same on his failure in the tender process, especially when the terms and conditions of the tender process were specific and clear from the very beginning and not subject to any further interpretations or meaning as the petitioner herein claims or seeks to project. 23. In Meerut Development Authority vs. Association of Management Studies and anr. (2009) 6 SCC 171 , the following observations of Their Lordships of the Hon'ble Supreme Court are relevant:- “A tender is an offer. It is something which invites and is communicated to notify acceptance. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Broadly stated it must be unconditional; must be in the proper form, the person by whom tender is made must be able to and willing to perform his obligations. The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. However, a limited judicial review may be available in cases where it is established that the terms of the invitation to tender were so tailor made to suit the convenience of any particular person with a view to eliminate all others from partici9pating in the bidding process. The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above stated grounds, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the Authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations.” 24. In view of the aforesaid discussion, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stand(s), disposed of.