JUDGMENT : 1. Challenge in the writ petition is laid and quashment sought of the Allotment / contract No. GEMC-511607730033978 dated 02.11.2022, Bid/RA/PBP No. GEM/2022/B/2425152, on the grounds taken in the memo of writ petition. 2. Petitioner, a registered contractor dealing with manufacturing & supplying floating Jetties, is stated to have responded to the Bid Number GEM/2022/B/2425152 dated 08.08.2022 in respect of supply and installation of Green Energy Illuminated Floating Walkway along the shoreline of Dal Lake Srinagar at five locations at estimated bid value of Rs.1,15,95100/- One Crore Fifteen Lacs Ninety Five Thousand One hundred only. The petitioner successfully qualified the technical evaluation dated 18.10.2022, and emerged as the lowest tenderer, having quoted the price at 88,90,000/- Eighty Eight Lacs and Ninety Thousand only. However, despite being a lowest tenderer, the petitioner has not been allotted the contract in question. The respondent no. 4, one of the tenderers, who had erroneously been allotted the contract, had quoted the price at Rs.94,72,269/- Ninety Four Lacs Seventy Two Thousand, Two Hundred and Sixty Nine rupees. 3. Aggrieved of the allotment, the petitioner submitted a representation before the authorities dated 27.10.2022 which was not responded to by the respondents thereby constraining the petitioner to move one more representation on 29.10.2022 seeking verification of technical bid documents of participating bidders and taking other grounds in opposition to the allotment made. 4. Reply has been filed by the respondents, wherein, it is stated that the petitioner has participated in the tender process as a normal bidder while as the respondent no. 4 has participated therein as MSE bidder. It is further stated in the reply that as per the policy reflected in the Manual for Procurement of Goods Micro and Small Enterprises (MSE) quoting a price within price band of L1+15 per cent shall be allowed to supply a portion of requirement by bringing down their price to L1 price in a situation where L1 price is from someone other than a MSE and such MSE shall be allowed to supply up to 25% of total tendered value which is to be distributed proportionately among the said bidders if there are more than one MSEs within such price band. 5. It is further stated in the reply that respondent no. 4, in the auto generated process, has emerged as L1 and therefore allotted the contract in terms of the Policy. 5. It is further stated in the reply that respondent no. 4, in the auto generated process, has emerged as L1 and therefore allotted the contract in terms of the Policy. The sub clause (v) of clause 4 of the Manual for Procurement of Goods has been quoted to reflect as to how the petitioner was ousted by the auto generated system and respondent no. 4 chosen as the successful L1 bidder. 6. Heard learned counsel for the parties. 7. The learned counsel for the petitioner submits that the action of the respondents in allotting the contract to respondent no. 4 is arbitrary and illegal as the petitioner has been discriminated. 8. The learned counsel further submits that the contract in question had to be allotted to a bidder of the State of Jammu & Kashmir but it had been allotted to respondent no. 4 who is not MSE registered in J&K but holds MSME registration of the State of Jharkhand. 9. The learned counsel further submits that the respondents have, in disregard of the various pronouncements of the Hon’ble Apex Court judgments delivered on the point, allotted the contract to respondent no. 4. 10. On the other hand, Mr. Ilyas Nazir, learned Government Advocate, submits that the impugned allotment order is in tune with the terms of the contract and since the petitioner had applied in financial bid as a normal tenderer, therefore, the auto generated system has refused to accept petitioner as L1 in terms of the applicable norms. 11. The learned Government counsel, therefore, prays that the writ petition being without any merit deserves to be dismissed. 12. Mr. Salim Gupkari, learned advocate also made his submissions on the similar lines. 13. Considered the submissions made. 14. It is beaten law of the land that the judicial review in respect of the contract matters is restricted, in that the process of contract involves the public interest which deserves to be preferred over an individual interest. The Hon’ble Apex court in case titled NG Projects Ltd v. Vinod Kumar Jain, 2022 SCC Online SC 336 has laid down certain principles. It would be profitable to reproduce paragraph no. 23 of the said judgment herein, thus:- “23. The Hon’ble Apex court in case titled NG Projects Ltd v. Vinod Kumar Jain, 2022 SCC Online SC 336 has laid down certain principles. It would be profitable to reproduce paragraph no. 23 of the said judgment herein, thus:- “23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to 14 find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.” 15. Though the petitioner claims to be MSE tenderer, yet while submitting the online bid, the petitioner has not indicated in the relevant field that he is a MSE tenderer and is applying for the allotment of bid in such capacity only. The application form annexed with the writ petition corroborates the stand of the respondent that the petitioner has not applied as a MSE tenderer. Since the petitioner has admittedly not applied as MSE tenderer, therefore, he could not be considered for allotment of contract, while as the respondent no. 4, despite having quoted a rate higher than the petitioner, had applied as MSE Tenderer, and as such qualified to get the benefits provided by the Rules. Since the petitioner has admittedly not applied as MSE tenderer, therefore, he could not be considered for allotment of contract, while as the respondent no. 4, despite having quoted a rate higher than the petitioner, had applied as MSE Tenderer, and as such qualified to get the benefits provided by the Rules. The impugned order, therefore, does not appear to have been issued in violation of rules but rather is quite in conformity with the applicable law and the rules occupying the field. 16. The judgment cited by the learned counsel for the respondent no. 4 delivered by the Hon’ble Apex Court in case titled National High Speed Rail v. Montecarlo Limited reported as 2022 SCC Online SC 111 also lays down the same principle. 17. The Apex Court in case titled Silppi Constructions Contractors v. Union of India, reported as 2019 (11) SCALE 592 has held that the court undoubtedly has power to interfere when there is arbitrariness, but it has to show restraint. The Courts typically avoids interfering in contractual disputes unless a definite instance of arbitrariness, mala fides, bias, or irrationality is established. The Courts must be aware of their constraints and the damage that unwarranted meddling in contractual affairs can do. It would be profitable to reproduce paragraph 19 of the said judgment herein, thus : “19. This Court being the guardian of the fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, malafides 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 power of judicial review in contractual and commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear cut case of arbitrariness or malafides 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 realize their limitations and the havoc which needless interference in commercial matters can cause. The courts must realize 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 the 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 the public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.” 18. The respondents have very specifically stated in the reply that the circular of the Finance Department of Union Territory bearing No. A/50(2016-1-969/J dated 17.03.2021 prescribing preference to Micro and Small Enterprises (MSEs) from the State, has not been violated but the allotment could not be made to such bidder for the reason that only one bidder i.e. Rex Hi Tech Solutions (L-5) from the State had applied as MSME who was ineligible in view of the policy. Thus the ground taken by the learned counsel that the impugned allotment is in violation of the Government Instructions for having been allotted to a bidder not registered as MSE with the State of J&K is unfounded. The said stand of the respondents thus makes it clear that the petitioner is also not MSE registered with the Jammu & Kashmir, therefore, the challenge laid to the allotment in question further loses significance on the said count and is rejected accordingly. 19. In view of the above discussion and the law laid down by the Hon’ble Apex Court supra, the writ petition is held to be without any merit, therefore, dismissed along with all CMs. Interim direction granted vide order dated 10.11.2022 shall stand vacated. The respondents shall proceed ahead in the matter without any further delay.