JUDGMENT : Petitioners in all these writ petitions are doing business in used papers. They buy old and used papers and sell it as raw materials for paper recycling industries. They have approached this Court aggrieved by conditions in the e-tender notification No.1308/D1/2019/Stationery dated 20.10.2019 issued by the Stationery Controller, Stationery Department, Government of Kerala. 2. Clause 11 of the said e-tender notification No.1308/D1/2019/Stationery dated 20.10.2019 issued by the Stationery Controller (hereinafter referred to as ‘the Notification’ for short) provides that tenders quoting price below the Government approved market rate would not be approved. Those tenders quoting up to 30% above the current market rate will be treated as competitive bids and tenders exceeding the said limit will be treated as abnormal prices and would be rejected. 3. The contention of the petitioners is that there cannot be a ceiling limit to be fixed in a process of competitive bidding. Competitive bidding means persons who are offering more competitive rates will be selected as successful bidders. If ceiling limit is fixed, all persons participating in the tender would be quoting equal amount up to the ceiling limit. Such quotes cannot be treated as competitive bids. 4. The petitioners would further contend that the said Clause No.11 would cause or is likely to cause an appreciable adverse effect on competition. It is therefore void, offending the provisions contained in the Competition Act, 2002. Though the respondents would contend that Clause 11 is intended to avoid unhealthy competition, the condition in effect is to bid in accordance with the rates published for a different period. The Notification was published in October, 2019. At that time, the published rates were for the month from July, 2019 to September, 2019. 5. Petitioners would further contend that the district wise rates of papers made available by the respondents to this Court on 15.01.2021, were not available at the time of Ext.P1 Notification. There was no publication of market rate fixed by the Government. The petitioners therefore could not have quoted rates as stipulated in Clause 11 of the Notification. 6. Quoting the rates published for items, the ceiling limit and rate selected in the tender proceedings, the petitioners argued that the rates selected by the respondents for award of contracts, are not the rates within the ceiling limit of 30% added to the current market rate. 6. Quoting the rates published for items, the ceiling limit and rate selected in the tender proceedings, the petitioners argued that the rates selected by the respondents for award of contracts, are not the rates within the ceiling limit of 30% added to the current market rate. The selected rates are 2 to 3 times higher than the notified rates. Furthermore, the selected rates are not the highest rates quoted. In short, contractors who have been selected are not the contractors who have quoted within the ceiling limit. Nor are they the persons who have quoted the highest rates. The proceedings pursuant to the said Notification are therefore highly illegal, arbitrary and unsustainable, contended the petitioners. 7. The Controller of Stationery resisted the writ petitions filing counter affidavit. The Stationery Controller stated that tenders were awarded to those bidders who had quoted acceptable rates as per the tender Company condition in Clause 11 of the Notification. According to the Stationery Controller, the market rate for various waste paper items was published in the e-tender site of Government of Kerala and in the website of Stationery Department. 8. While publishing the Notification, these market rates were concluded based on the average rates for various waste paper items published by the Economic and Statistics Department of the Government of Kerala, for the period from July, 2019 to September, 2019. The Stationary Controller further stated that a tenderer can quote a rate not below the market rate fixed for a particular kind of waste paper item. He can quote a maximum competitive rate up to 30% above the market rate. Quoted rate is not the exclusive factor in awarding a tender. History of performance of contractors is a decisive factor. The contract is not intended to be awarded solely on the basis of the highest quote. 9. Relying on the judgment of the Apex Court in Jagdish Mandal v. State of Orissa and others [ (2007) 14 SCC 517 ], Sri. History of performance of contractors is a decisive factor. The contract is not intended to be awarded solely on the basis of the highest quote. 9. Relying on the judgment of the Apex Court in Jagdish Mandal v. State of Orissa and others [ (2007) 14 SCC 517 ], Sri. K.R. Sunil, learned counsel appearing for the petitioners in WP(C) Nos.6940, 7173 and 7526 of 2020, argued that interference in tender or contractual matters in exercise of power of judicial review is permissible if the process adopted or decision made is malafide or intended to favour someone or the same is so arbitrary and irrational that no responsible authority acting under law could have arrived at it or it affected the public interest. Relying on the judgment of the Apex Court in Chairman, All India Railway Recruitment Board and another v. K. Shyam Kumar and others [ (2010) 6 SCC 614 ], the learned counsel for the petitioners urged that this Court is bound to interfere with the impugned tender proceedings since the proceedings are so reprehensible in its defiance of logic or of accepted standards that no sensible person who had applied his mind to the issue to be decided could have opted it. 10. The learned counsel for the petitioners further argued that by the impugned Notification, the bidders are required to do what they cannot possibly perform. Therefore, in view of the judgment of this Court in Sree Vigneshwara Packs (SV Packs) v. Travancore Devaswom Board and another [2019 KHC 953], the impugned Notification is liable to be set aside. 11. Sri. Alex M. Scaria, learned counsel appearing for the petitioner in W.P.(C) No.6241/2020, argued that Clause No.11 in the impugned Notification is highly unjust and illegal and if the tenders which quote amounts in excess of 30% of the market value are not accepted as valid tenders, it can add only loss to the government exchequer. When there is a condition in a Notification which is against the interest of the State and is intended to cause loss to the State, this Court would be justified in setting aside the Notification and directing the State to issue a fresh Notification. 12. Sri. When there is a condition in a Notification which is against the interest of the State and is intended to cause loss to the State, this Court would be justified in setting aside the Notification and directing the State to issue a fresh Notification. 12. Sri. Lindons C. Davis, learned counsel for the petitioner in W.P.(C) No.6643/2020, contended that the contractors selected by the State are not the persons who have quoted within the ceiling limit or persons who have quoted the highest rate in spite of ceiling limits. The method of selection is not known to the public. Therefore, this Court has to direct the respondents to award the contracts to the highest bidders. 13. I have heard the learned counsel for the petitioners appearing in the writ petitions and the learned Government Pleader appearing for State-respondents. I have also heard the counsel appearing for the contesting respondents in the writ petitions. 14. From the affidavits filed by the Controller of Stationery, it is evident that in each financial year, contracts for the sale of waste papers are being fixed for a higher rate than that of the previous year, due to competition among bidders. It is a common practice followed by the selected contractors not to lift waste papers from various Government offices. Many a time, bids are made on abnormal prices and subsequently the contractors refuse to lift waste paper. It was in these circumstances that it was decided to incorporate Clauses 11 and 13 to the tender conditions. 15. Rates of papers were calculated in each District based on the Economics and Statistics Department’s market rate table from July, 2019 to September, 2019. There is no illegality or arbitrariness on the part of a tendering authority in insisting that the quotes should not be below the market rate and should not exceed more than 30% of the current market rate. The contention of the petitioners is that current market rates were not published and what was published was the market rates of the preceding three months. 16. This Court is unable to accept the said argument of the petitioners for the reason that market rates are generally fixed taking into account the price of the commodity during the immediately preceding period also. Clause 11 of the tender Notification states that market rates which are existing for the time being, will be the criteria. 16. This Court is unable to accept the said argument of the petitioners for the reason that market rates are generally fixed taking into account the price of the commodity during the immediately preceding period also. Clause 11 of the tender Notification states that market rates which are existing for the time being, will be the criteria. Therefore, if an authority competent to decide market rates of waste paper has notified the market rates for the preceding three months and that is the only official market rate which is available, the Controller of Stationery will be justified in taking the same as the market rate for the purpose of selection of bidders. 17. The further argument of the petitioners is that the market rates were not published in the tender Notification and therefore by insisting compliance of Clause 11, the petitioners are forced to do an impossible task of presuming the market rate for quoting bid amounts. The bidders are compelled to do what they cannot possibly perform, is the argument. This argument does not appear to be correct. The counter affidavit in the writ petitions would indicate that market rates for various waste paper items were published in the e-tender site of Government of Kerala and in the website of Stationery Department. While publishing the impugned Notification, these market rates were decided on the basis of average rates for various waste paper items published by the Economics and Statistics Department, Government of Kerala for the period from July, 2019 to September, 2019. The market rates are in public domain, especially in the website of Stationery Department. The petitioners cannot legally insist that the Stationary Controller should disclose the existing market rates in the tender Notification itself. 18. The petitioners would contend that fixing of ceiling limits in a tender would make the same non-competitive. In a competitive tender proceedings, there cannot be a ceiling. It would be against the interest of the State also, contended the petitioners. In this regard, it is to be noted that the selection of contractors through the tender process is not based on the amount quoted alone. Various factors and qualifications of the contractors are taken into account. The previous transactions and history of the contractors are also made relevant criteria for award of contract. Therefore, it cannot be said that fixing a ceiling limit by itself would defeat the competitiveness of the tender. Various factors and qualifications of the contractors are taken into account. The previous transactions and history of the contractors are also made relevant criteria for award of contract. Therefore, it cannot be said that fixing a ceiling limit by itself would defeat the competitiveness of the tender. Even if there are more than one tenderer who has quoted the same upper ceiling limit, the selection will be based on other criteria also. In short, the competitiveness of bidders is not decided on the basis of bid amounts alone. 19. Clause 11 has been included in the notification based on the past experience of the authorities. It was a common practice that bidders for waste papers quote abnormal and unrealistic prices and get the contract awarded in their favour. Subsequently, such contractors refuse to lift the waste papers perhaps due to the reason that they will not make much profit due to the abnormal rates quoted by themselves. The authorities were drawn to litigations by such defaulting contractors. Even when such contractors are blacklisted, the experience of the authorities is that the same contractors will again make bids in the name of some other entities and get the contract awarded in their favour. It is such past experience that has compelled the Controller of Stationery to include Clause 11 in the impugned tender Notification. This Court does not find any illegality or irregularity in the conditions stipulated. 20. The arguments of the petitioners based on Sections 3 and 4 of the Competition Act, 2002 are also unacceptable. The argument is that the provisions in the e-tender Notification dated 20.10.2019 are in violation of Sections 3 and 4 of the Act, 2002. 21. Section 3 of the Competition Act, 2002 provides that no enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. Sub-section (2) of Section 3 states that any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. Sub-section (2) of Section 3 states that any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. As per sub-section (3) of Section 3, any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade or goods or provision of services, which directly or indirectly determines purchase or sale prices shall be presumed to have an appreciable adverse effect on competition. 22. The question is whether the Stationery Controller, Stationery Department, who has floated the e-tender Notification, can be treated as “enterprise” and would come within the ambit of Section 3. Section 2(h) defines “enterprise” as follows :- “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space. Explanation – For the purposes of this clause, (a) “activity” includes profession or occupation; (b) “article” includes a new article and “service” includes a new service; (c) “unit” or “division”, in relation to an enterprise, includes - (i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods; (ii) any branch or office established for the provision of any service.” The activity of selling waste paper/used paper cannot be treated as an activity of the Government relatable to the sovereign functions of the Government. Therefore, the Stationery Controller representing the Government of Kerala would indeed fall within the definition of “enterprise”. 23. Therefore, the Stationery Controller representing the Government of Kerala would indeed fall within the definition of “enterprise”. 23. However, that by itself will not help the petitioners in any manner because to term any agreements as anti-competitive agreement and to make Section 3 applicable to the Stationery Controller, supply of used paper/waste paper should be of such a nature that it is likely to cause an appreciable adverse effect on competition within India. Selling through auction waste paper/used paper generated in the Government offices in Kerala, cannot be said to be one causing an appreciable adverse effect on competition within India. Any agreements entered into between the Stationery Controller and contractors for sale/purchase of waste paper/used paper cannot be described as one directly or indirectly determining purchase or sale price in identical or similar trade of goods 24. Section 4(1) of the Competition Act, 2002 prohibits abuse of dominant position and provides that no enterprise or group shall abuse its dominant position thereby directly or indirectly imposing unfair or discriminatory condition in purchase or sale of goods in services or price in purchase or sale (including predatory price) of goods or service. Clause (a) under Explanation to Section 4(2) defines “dominant position” as a position of strength, enjoyed by an enterprise in the relevant market in India, which enable it to operate independently of competitive forces prevailing in the relevant market or affect its competitors or consumers or the relevant market in its favour. 25. The sale of waste paper/used paper by the Government of Kerala under no stretch of imagination, can be said to make the Government in a dominant position in the waste paper/used paper market in India. Therefore, the question of abuse of dominant position by the Stationery Controller or Government of Kerala does not arise. The contentions of the petitioners based on Sections 3 and 4 of the Competition Act, 2002 are therefore liable to be rejected. For all the above reasons, this Court does not find any merit in these writ petitions and the writ petitions are hence dismissed.