ORDER : Heard Sri Vedula Srinivas, learned senior designated counsel representing the counsel on record, Mr J. Goverdhan Reddy, appearing on behalf of the Petitioner, and Ms Sudha, learned counsel appearing on behalf of respondents 1 to 3. 2. This Writ Petition is filed praying to issue a Writ of Mandamus questioning the action of Respondents more particularly Respondent Nos. 1 & 2 in not considering the bid of Petitioner firm pursuant to the Bid No. GEM/2023/B/3210393 dated 09.03.2023 for rate contract for transportation of Pond Ash from NTPC, Ramagundam to NHAI Road Construction Projects is arbitrary, illegal, unjust and violative of principles of Natural Justice and consequently to Direct the Respondent No. 1 to consider the Bid of the Petitioner firm pursuant to the Bid No. GEM/2023/B/3210393 dated 09.03.2023 for rate contract for transportation of Pond Ash from NTPC, Ramagundam to HAI Road Construction Projects. 3. The case of the Petitioner, in brief, as per the averments made in the affidavit filed by the petitioner in support of the present writ petition is as follows: a) The Petitioner is a registered construction firm having registered under Registrar of Firms vide Firm No. 250/2008 and having its registered office at #2-10-2046, Bhagyanagar, Karimnagar, Telangana – 505002.The 1st respondentherein had called for tenders for transportation of Pond Ash from NIPC, Ramagundam to NHAI Road Construction Projects under Bid No. GEM/2023/B/3210393 dated 09.03.2023 with scope of work along with certain terms and conditions which are mentioned in the Bid document. b) In the said Bid Document there is a notice inviting tender for Rate Contract for transportation of Pond Ash from NTPC, Ramagundam to NHAI road construction projects and according to the said notice the Petitioner herein within Bid validity time had filed his Bid for the said contract by filing all his work completion certificates and necessary documents as per the technical qualification requirements of the said Tender dated 27.04.2023. c) After filing the Bid, the Petitioner herein had received an E-mail dated 23.05.2023 from the 1st Respondent and the Petitioner herein had replied vide E-Mail dated 25.05.2023 to consider another experience certificate dated 15.03.2023 which is with a tender contract value of Rs.73,66,45,641/- and as on the subject tender notice the said work was completed till Rs.45,29,14,622/ - which experience is sufficient for meeting qualifying requirement of Tender. d) Thereafter, the 1st Respondent had replied stating that, as per tender provision: (Attachment-3: Bidder's Qualifications) The reference works whose details have been declared in their bid shall only be considered to ascertain the bidder's compliance to the specified qualifying Requirement (QR). Any other document which has not been submitted along with the bid shall not be considered for evaluation. With the above, KS Constructions is not meeting the Qualifying Requirement. e) More so, the earlier experience certificate submitted by the Petitioner along with the bid of Road Widening of Single lane to Double lane from (1) PWD (Chandrampet) road to Marrimadla (Via) Konaraopet Mandal (0/0 to 27/5 to 32/6 kms in Karimnagar District for which the start of work date is 19.01.2016 and completion of work dated is 30.03.2018 with a total value of Rs.32,11,23,091/- is self-sufficient and meets the technical criteria as per the Tender Notice. f) However, the 1st Respondent has calculated the same from Financial year of 2016 instead of Calendar year of 2016 and excluded the work done from January to March, 2016 in turn and had removed an amount of Rs.89,72,837/- from the said total work done, by stating that the said work comes under financial year of 2015 - 2016 and refused the bid of Petitioner. Thus, if the said amount of Rs.89,72,837 / - work done between January to March, 2016 is removed then the Petitioner is not satisfying the technical criteria as per the Tender Notice. g) However, the fact remains that the paragraph No. V of Tender Notice: qualifying requirements for bidders does not speak about the financial preceding 7 years and in the absence of any specific nomenclature of financial year in the technical criteria, the Respondents herein ought to have consider the experience certificate submitted by the Petitioner. h) Even after the above-mentioned E-Mail dated 23.05.2023 when the 1st Respondent categorically asked for the reply, the Petitioner herein had submitted subsequent work experience certificate in which the work is completed for more than 45 Crore which is self-sufficient for satisfying the technical qualification, but then the same was refused stating that, the same is not submitted at the time of Bid. As the said work was still ongoing, the Petitioner had not uploaded the same as his previous work experience itself, as there was no word called ‘FINANCIAL YEAR’ was mentioned in the Technical Criteria of Tender Notice. As the said work was still ongoing, the Petitioner had not uploaded the same as his previous work experience itself, as there was no word called ‘FINANCIAL YEAR’ was mentioned in the Technical Criteria of Tender Notice. i) The Respondents herein had not replied or communicated with the Petitioner about his Bid, whether he is successful or not and proceeding with evaluation of technical qualifying requirements without considering the Bid of Petitioner even after satisfying all the requirements as per the Tender Notice. j) On 01.06.2023, the Petitioner has sent an email to consider this experience Certificate as there is no mention of work schedule start and completion in the qualifying requirement of the Tender Notice and requested to consider the Bid documents as technically qualified, but there is no response from Respondents as on date. Hence, this Writ Petition. 4. Counter Affidavit filed by the Respondent Nos. 1 to 3, in brief, reads as under: a) The Petitioner is not being qualified the requirement as specified in notice inviting tender (NIT - Clause V (1.0)) with regard to the Bid. No. GEM/2023 /B/3210393 dated 09.03.2023 so he was not considered for participating in tender process and the invitation for tender was called from the transport agencies to transport fly ash from NTPC Ramagundam to NHAI Road construction sites as specified and in very first leg the Petitioner could not fulfill the terms of Qualifying Requirement as per NIT Clause: V (1.0) Technical Criteria) thus, his case was rejected. b) It is the case of these Respondents as Petitioner has not complied the conditions, his application was rejected. Moreover, the Petitioner has not filed all his work completion Certificate and necessary documents as per technical qualification requirements of the said Tender and the Respondent has sent an email dated 23.5.2023 clearly communicating with details as to how the petitioner failed to meet the qualifying requirements. c) Alongside, there is nothing in the said communication that enables the Petitioner bidder to submit additional qualifying documents/tenders, apart from those which he had already mentioned/specified/attached with the Bid. The petitioner’s "quote" &"unquote" as have been made in the Writ clearly reveals this aspect. Further tender specification clearly prohibits such additional submissions. c) Alongside, there is nothing in the said communication that enables the Petitioner bidder to submit additional qualifying documents/tenders, apart from those which he had already mentioned/specified/attached with the Bid. The petitioner’s "quote" &"unquote" as have been made in the Writ clearly reveals this aspect. Further tender specification clearly prohibits such additional submissions. d) On 25.5.2023, the Petitioner has replied to the above mentioned e-mail stating that another experience certificate dated 15.03.2023, for the construction of Sircilla bye-pass road from KM 0/0 to 11/0 in Karimnagar district. However, the same is not allowed since the experience certificate of only reference work declared in the bid shall be considered to ascertain the bidder’s compliance to the tender qualification requirement and sufficient to consider the Petitioner’s case as the allegation of the Petitioner that the contract value completed till 15.03.2023 is for Rs.45,29,14,622/- and that experience is sufficient for meeting the qualifying requirement of the tender is not correct. Further it is reiterated as per tender provisions, it is not open for the Petitioner to submit any additional documents other than those specified in his already submitted Bid. e) As per the tender provisions, the reference works whose details have been declared in their bid shall only be considered to ascertain the bidder's compliance to the specified qualifying Requirement (QR). However, no change or substitution of the reference works by new/additional works for conforming to the specified qualifying requirement shall be sought, offered or permitted." f) Furthermore, the Petitioner herein has submitted their acceptance for compliance to above provisions of the bidding documents and furnished a declaration to that effect. Thus, it may be seen from the above, this Respondent has categorically maintained not to substitute the reference work declared in the bid with any new work. However, on the contrary, on rejection of the reference works submitted in the bid by the Respondent, the Petitioner has gone ahead and proposed to alter the reference work by substitution of new / additional work which is virtually altering or amending the term of the bid which is not permitted and therefore, Petitioners request was not considered. However, on the contrary, on rejection of the reference works submitted in the bid by the Respondent, the Petitioner has gone ahead and proposed to alter the reference work by substitution of new / additional work which is virtually altering or amending the term of the bid which is not permitted and therefore, Petitioners request was not considered. g) As per QR: "For the PO/WO which were awarded prior to preceding 7 years from the date of Techno-commercial bid opening, the value of work executed in the preceding 7 years from the date of Techno-commercial bid opening will be considered.” Bid opening of Techno-commercials bids was held on 27.04.2023. Therefore, works executed during the period from 28.04.2016 to 27.04.2023 (i.e., preceding 7 years from the date of Techno-commercial bid opening) can only be considered. However, the Petitioner bidder's executed value prior to 28.04.2016 (i.e. in the FY 2015-16) works out to Rs.89,72,837 which is not eligible for consideration for the purpose of establishment of Qualification Requirements. The approximate executed value in the subsequent period works out to INR 31,21,50,254.00 (32,11,23,091.00 - 89,72,837.00) which falls short of Qualification Requirements of Rs 32 crore and hence, petitioner (bidder) is not fulfilling the Qualification Requirements. In view of these factors the petitioner is not meeting QR conditions. h) Moreover, this Petitioner to give a colour that some illegality occurred stated financial year / calendar year. In fact, at the time of calculating as per the tender conditions, 12 month preceding to technical bid opening was taken for the purpose of year, but not as contemplated by this Petitioner financial year or calendar year. Bid opening of Techno-commercial bids was held on 27.04.2023. Therefore, works executed during the period from 28.04.2016 to 27.04.2023 (i.e. preceding 7 years from the date of Techno-commercial bid opening) can only be considered. i) However, bidder's executed value prior to 28.04.2016 (i.e. in the FY 2015- 16) works out to Rs.89,72,8371/- which is not eligible for consideration for the purpose of establishment of Qualification Requirements. Without admitting the contentions of the Petitioner, if such modification is permitted, there may be several other bidders, who will come within the permissible limits which is illegal because the processes of selection was already commenced and one cannot change it midway. Without admitting the contentions of the Petitioner, if such modification is permitted, there may be several other bidders, who will come within the permissible limits which is illegal because the processes of selection was already commenced and one cannot change it midway. j) As per Instruction to Bidders (ITB) Clause 23.1.2 & 23.1.3, Respondent is not bound to inform the bidders regarding the rejection of bidder's techno-commercial bid. However, even after no provision to this effect, Respondent vide its email dated 23.05.2023 informed the bidder regarding non-fulfilment of Qualification Requirements based on the reference works furnished in the bid and the Petitioner has misconstrued the provisions applicable to it. Likewise, work experience certificate if not submitted along with the bid could not be considered for evaluation for foregoing reasons mentioned above. k) Furthermore, out of these 23 bidders 8 bidders have been rejected because neither some of them are technically responsive nor some of them fulfilling the term of Qualifying Requirements including the work experience of Rs.32 crores during the preceding seven years prior to techno-commercial bid opening. l) More so, in order to consider the disqualified person/ tenderer or relaxing is virtually amending the conditions and there will be several other persons similarly placed and the Respondent cannot adopt discriminative attitude nor once process is started legally one cannot deviate and what this Petitioner seeking is a direction to do illegal act which cannot be legalized by any means. Additionally, the courts at Raipur shall have jurisdiction in all matters. Hence, the Writ Petition is devoid of merits and is liable to be dismissed. PERUSED THE RECORD 5. Counter affidavit filed by respondent Nos. 1 to 3, in particular, paras 13, 14, 15, 16 and 17 read as under: “13. With reference to Paragraph No.9 it is respectfully submitted that this petitioner as per the averments in the writ affidavit intends to qualify through Route 1 of Q R which is reproduced below: The bidder should have executed the following work(s) with "minimum executed value of Rs 32 Crs (INR Thirty Two Crores Only) within the preceding seven (07) years reckoned from the date of Techno-commercial bid opening, through any of the following routes: ROUTE 1: Construction of Ash Dyke'/ 'Embankment/ 'Earthen Dam/ "Road" / "Site Levelling" Note for Route 1: Strengthening and widening of roads will also be considered under “construction of road'. However, works involving only repair and maintenance of road(s) will not be considered as "construction of road" Notes for Route 1/Route 2/Route 3 1. In case of contract(s) under execution as on date of Techno-commercial bid opening, the value of work executed till such date will be considered. 2. For the PO/WO which were awarded prior to preceding 7 years from the date of Techno-commercial bid opening, the value of work executed in the preceding 7 years from the date of Techno-commercial bid opening will be considered. 3. Reference work executed by the bidder as a subcontractor may also be considered provided the certificate issued by main contractor is duly certified by owner specifying the scope of work executed by the subcontractor in support of qualifying requirements. The executed value is defined here under For Route-1 The executed value shall mean the total value of work executed under a single Purchase Order/Work Order/Agreement under Route-1. Petitioner have referred Nine (09) PO(s) in support of meeting Qualifying requirement with executed values as Rs. 32.11 Cr, Rs16.47 CR, Rs.18.46 Cr, Rs. 9.03 Cr, Rs.3.88 Cr, Rs.29.28 Cr, Rs.6.01 Cr, Rs.7.97 Cr & Rs.7.62 Cr respectively. The only PO with executed value more than 32 Cr is as detailed below: Name of Work Widening of Single Road to Double Lane from (1) PWD (Chandrampet) road to Marrimadla (via) Konaraopet mandal Km0/0 to 27/5(2) Vemulawada - Sirikonda road from Km 28/0 to 32/6 in Karimnagar District Client Name Office of the Executive Engineer, Govt. of Telangana Work Order No SE’sISAB No 151/2015-16 dt. 19.01.2016 Contract Value INR 30,41,92.213.00 Work order Status Completed Period of Execution 19.01.2016 to 30.03.2018 Completion/Experience Certificate Ref. Nil dt:29.08.2020, Total Executed Value INR 32,11,23,091.00 Executed value in FY 2015-16 INR 89.72,837.00 The Work order cited by the Petitioner for eligibility is more than 7 years old With reference to Rs. 89,72,837.00 as per Clause V(1.0) (as per page 38 Bid document (supra) As per QR: "For the PO/WO which were awarded prior to preceding 7 years from the date of Techno-commercial bid opening, the value of work executed in the preceding 7 years from the date of Techno-commercial bid opening will be considered.” Bid opening of Techno-commercials bids was held on 27.04.2023. Therefore, works executed during the period from 28.04.2016 to 27.04.2023 (ie., preceding 7 years from the date of Techno-commercial bid opening) can only be considered. Therefore, works executed during the period from 28.04.2016 to 27.04.2023 (ie., preceding 7 years from the date of Techno-commercial bid opening) can only be considered. However, the Petitioner bidder's executed value prior to 28.04.2016 (i.e. in the FY 2015- 16) works out to Rs.89,72,837 which is not eligible for consideration for the purpose of establishment of Qualification Requirements. The approximate executed value in the subsequent period works out to INR 31,21,50,254.00 (32,11,23,091.00 - 89,72,837.00) which falls short of Qualification requirements of Rs 32 crore and hence petitioner (bidder) is not fulfilling the Qualification requirements. In view of these factors the petitioner is not meeting QR conditions. 14. With reference to Paragraph No. 10 it is respectfully submitted that as per tender provision: "For the PO/WO which were awarded prior to preceding 7 years from the date of Techno-commercial bid opening, the value of work executed in the preceding 7 years from the date of Techno-commercial bid opening will be considered. Nomenclature is clear. It is preceding 7 years from the date of Techno- commercial bid opening. Whereas this Petitioner to give a colour that some illegality occurred stated financial year / calendar year. In fact at the time of calculating as per the tender conditions 12 month preceding to technical bid opening was taken for the purpose of year but not as contemplated by this Petitioner financial year or calendar year. Bid opening of Techno-commercials bids was held on 27.04.2023. Therefore, works executed during the period from 28.04.2016 to 27.04.2023 (i.e. preceding 7 years from the date of Techno-commercial bid opening) can only be considered. 15. However, bidder's executed value prior to 28.04.2016 (i.e. in the FY 2015- 16) works out to Rs.89,72,837/- which is not eligible for consideration for the purpose of establishment of Qualification Requirements. Without admitting the contentions of the Petitioner, if such modification is permitted, there may be several other bidders who will come within the permissible limits which is illegal because the processes of selection was already commenced and in between one cannot change. 16. It may be noticed that The approximate executed value in the subsequent period works out to INR 31,21,50,254.00 (32,11,23,091.00 - 89,72,837.00) which falls short of Qualification requirements of Rs 32 Crore and hence petitioner (bidder) is not fulfilling the Qualification requirements. The Petitioner is put to strict proof with regard to the allegations made in this Paragraph. 17. 16. It may be noticed that The approximate executed value in the subsequent period works out to INR 31,21,50,254.00 (32,11,23,091.00 - 89,72,837.00) which falls short of Qualification requirements of Rs 32 Crore and hence petitioner (bidder) is not fulfilling the Qualification requirements. The Petitioner is put to strict proof with regard to the allegations made in this Paragraph. 17. With reference to paragraph No. 11 at the cost of repetition it is respectfully submitted that the provisions of the Bidding Documents (Clause VII of NOTICE INVITING TENDER (NIT): "The reference works whose details have been declared in their bid shall only be considered to ascertain the bidder's compliance to the specified qualifying Requirement (QR). The Employer at its discretion may seek any clarification and/or documentary evidence only for the reference works as mentioned above. However, no change or substitution of the reference works by new/additional plant for conforming to the specified qualifying Requirement shall be sought, offered or permitted." Further, following provision has also been stipulated for seeking clarification in respect of reference works submitted for establishing fulfilment of Qualifying Requirements of the package. Quote: "Clause 22 titled 'CLARIFICATION OF BIDS' of NIT: During the bid evaluation, the Employer may, at its discretion, ask the Bidder for a clarification of its bid including documentary evidence pertaining to only the reference works declared in the bid for the purpose of meeting Qualifying Requirement specified in Bid Data Sheet/ NIT. The request for clarification and the response shall be in writing and no change in the price or substance of the bid including substitution of reference works in the bid by new/additional works for conforming to Qualifying Requirement shall be sought, offered or permitted." Unquote: Petitioner has submitted their acceptance for compliance to above provisions of the bidding documents and furnished a declaration to this effect (Attached as Annexure 1). There is no illegality at all. Thus, it may be seen from the above, this respondent NTPC has categorically maintained not to substitute the reference work declared in the bid with any new work. However, on the contrary, on rejecting the reference works submitted in the bid , petitioner has proposed to alter the reference work by substitution of new/additional work which is not permitted and therefore, not considered. Thus, it may be seen that bidder’s plea is not maintainable.” 6. Additional counter affidavit filed by respondent Nos. However, on the contrary, on rejecting the reference works submitted in the bid , petitioner has proposed to alter the reference work by substitution of new/additional work which is not permitted and therefore, not considered. Thus, it may be seen that bidder’s plea is not maintainable.” 6. Additional counter affidavit filed by respondent Nos. 1 to 3, in particular, para 3, reads as under: “It is respectfully submitted that on the original date of bid opening i..e as on 23-3-2023 this Petitioner is falling short of Rs.52 lakhs approximately for getting qualified his bid. The bid opening date was mentioned as 23-3- 2023 at 12.30 as per page 19 of the Petitioners material papers and according to the Petitioner that without his knowledge bid opening date was changed and opened on 27-4-2023 which is not a correct fact. As on 27-4- 2023 Petitioner is falling short of Rs.89,72,837/- In this context there was no pleading in the writ petition. However for the purpose of clarification we have obtained the information from the First Respondents who has detailed that this Petitioner on 17-3-2023 at 1:27 PM sent an email as detailed hereunder: "Dear Sir, We are Interested to participate in tender Bid No.GEM/2023/B/3210393. But my company is not registered in GEM portal now we are registered in GEM portal under process. So please extend the time 7 days for tender to participate. Thanking you Sir, Yours faithfully, KSR Constructions." Thereafter, the petitioner sent another e-mail dated 08.04.2023 at 6:50 PM email – "Dear Sir We are intending to be a part of tender floated by NTPC Limited "Annual Rate Contract for transportation of Pond Ash from NTPC Ramagundam to NHAI Road construction Projects" Vide BID/TENDER no GEM/2023/B/3210393. We are in the processes of our estimation to work out the estimation by collecting required information and to submit our most competitive and to submit our most competitive offer, Requesting to extend the bid submission date for 2 weeks, kindly grant us the extension of time as requested and enable us to participate in the Bidding. Please do the needful. Thanking You yours faithfully KSR Constructions". DISCUSSION AND CONCLUSION DISCUSSION 7. Please do the needful. Thanking You yours faithfully KSR Constructions". DISCUSSION AND CONCLUSION DISCUSSION 7. It is the specific case of the petitioner that the petitioner is a registered construction firm under Registrar of Firms vide Firm No.250/2008 and having its registered office at Bhagyanagar, Karimnagar the petitioner is into construction of road work having experience of completing various projects pertaining to road widening and in response to the call of respondent No.1 calling for tenders for transportation of pond ash from NTPC, Ramagundam to NHAI Road construction project under Bid No.GEM/2023/B/321093, dated 9th March, 2023, with scope of work and certain terms and conditions which are mentioned in the bid document, the petitioner within bid validity time had filed his bid for the said contract as the petitioner is within the purview of the qualifying requirement mentioned in the tender notice and petitioner also filed all his work completion certificates and the necessary documents as per the technical qualification requirements of the said tender on 27.04.2023. The petitioner received a mail dated 23.05.2023 from the 1st respondent informing the petitioner that the petitioner is not meeting the qualifying requirement in the said tender. It is intimated to the petitioner through the said mail that according to the required technical criteria as per para 5 of the tender notice Clause 1.0, Sub clause (2), it is clearly stipulated as under: “For the PO/WO which were awarded prior to the preceding seven years from the date of Techno-commercial Bid opening, the value of the work executed in the preceding seven years from the date of Techno-commercial Bid opening will be considered. 8. It was further intimated to the petitioner that the estimated value in last seven years reckoned from the date of Techno-Commercial Bid opening is INR 31,21,50,254 (32,11,23,091.00 - 89,72,837.00), which is less than qualifying requirement of INR 32 crores. 9. 8. It was further intimated to the petitioner that the estimated value in last seven years reckoned from the date of Techno-Commercial Bid opening is INR 31,21,50,254 (32,11,23,091.00 - 89,72,837.00), which is less than qualifying requirement of INR 32 crores. 9. It is further the case of the petitioner, that in response to the said mail dated 23.05.2023, the petitioner vide E-Mail dated 25.05.2023 requested the respondent No.1 to consider another experience certificate dated 15.03.2023 which is with a tender contract value of Rs.73,66,45,641/- and as on the subject tender notice the said work was completed till Rs.45,29,14,622/- which experience is sufficient for meeting qualifying requirement of tender and to the said E-Mail, the 1st respondent replied stating as per tender provision (Attachment 3 Bidders qualifications), the reference works whose details had been declared in their bid shall only be considered to ascertain the bidders compliance to the specified Qualified Requirement (QR) and that any other documents which has not been submitted along with the bid shall not be considered for evaluation. 10. The petitioner’s further specific case is that in view of the fact that no “Financial Year” is mentioned in the technical criteria of the tender notice and since there is no mention about the details of work schedule i.e. start and completion in the Qualifying Requirement of tender notice and taking into consideration Clause 2 of the Technical criteria, the petitioner’s bid shall be considered and therefore, the petitioner’s work order under the Financial Year 2015-16, should also be considered instead of being rejected. 11. 11. Learned senior counsel appearing on behalf of the petitioner further contends that the experience certificate submitted by the petitioner along with the bid of road widening of single lane to double lane from (1) PWD (Chandrampet) Road to Marrimadla (via) Konaraopet Mandal (0/0 to 27/5 to 32/6 kms in Karimnagar District, the start of work date is 19.01.2016 and completion of work is dated 30.03.2018 with a total value of Rs.32,11,23,091/- and the same is self sufficient and meets the technical criteria as per the tender notice, but however, the 1st respondent has calculated the same from Financial Year, 2016 instead of calander year of 2016 and taking into consideration the executed work done from January to March, 2016 in turn had removed an amount of Rs.89,72,837/- from the said total work done by stating that the said work comes under Financial Year of 2015-16 and refused bid of the petitioner, thereby, making the petitioner ineligible having not satisfied the technical criteria as per the tender notice, and it is further contended by the learned counsel that in view of the fact that no word “Financial Year” is mentioned in the technical criteria of the tender notice, the petitioner is entitled for the relief, as prayed for, in the present writ petition. 12. Learned senior counsel placed reliance on the judgments of the Apex Court enlisted below: 1. Judgment dated 05.11.2020 reported in (2020) 10 SCC 766 in Shanti Devi Alias Shanti Mishra v Union of India and others which was observed at paras 17, 18, 19 and 20. 2. Judgment dated 29.11.2013 reported in (2014) 3 SCC 760 in Maa Binda Express Carrier and another v NorthEast Frontier Railway and others, which was observed at para 8. 13. This Court vide its order dated 03.07.2023 granted interim stay of all further proceedings till the next date of hearing and the same is in force till the date of pronouncement of judgment as per the orders of this Court dated 08.09.2023. 14. Vacate stay petition is filed on behalf of respondent Nos. 1 to 3 along with the counter and specific pleas putforth by the learned counsel Ms Sudha appearing on behalf of respondent Nos. 14. Vacate stay petition is filed on behalf of respondent Nos. 1 to 3 along with the counter and specific pleas putforth by the learned counsel Ms Sudha appearing on behalf of respondent Nos. 1 to 3 are as under: 1) The writ petition has to be dismissed for want of territorial jurisdiction that as per GCC 6.1 and special conditions 2.0 of Section 5 “this contract shall be governed by the Indian Law for the time being in force and, the Courts at Raipur shall have jurisdiction in all matters. 2) The petitioner is not being qualified, and failed to satisfy the requirement as specified in notice inviting tender (NIT – Clause V (1.0) (Technical Criteria) with regard to the Bid. No. GEM/ 2023/B/3210393, dated 09.03.2023 so he would not be considered for participating in tender process. 3) Learned counsel placing reliance in the averments made in the counter affidavit and additional counter affidavit filed on behalf of respondents 1 to 3 would contend that the writ petition needs to be dismissed. 4) Learned counsel placed reliance on the judgment of the Apex Court enlisted below: 1. 2023 Live Law (SC) 467 Civil Appeal No 3897 of 2023 arising out of SCLP (C) No. 15708 of 2022 Tata Motors Limited Vs The Brihn Mumbai Electrical Supply & Transport Undertaking (BEST) and others para 48, 52,53 & 54. 2. 2016 (16) SCC 818 Afcon Infrastructure Limited Vs Nagapur Metro Rail Corporation Limited and another, head note E Para 12, 13 & 14 & 15 3. 2012 8 (SCC) 216 Michigan Rubber (India) Limited vs. State of Karnataka page head note ‘e’ and ‘g’ 4. 1994 (6) SCC 651 Tata Cellular Vs Union of India para 70, 73, 74, 75, 82.152 & 154 judicial review. CONCLUSION 15. This Court opines that a bare perusal of para V of tender notice 1.0 Technical Criteria, Clause (2) clearly indicates for the PO/WO which were awarded prior to preceding seven years from the date of Techno-commercial Bid opening, the value of work executed in the preceding seven years from the date of Techno-commercial Bid opening will be considered and in the present case, the technical bid was opened on 27.04.2023, therefore, works executed during the period from 28.04.2016 to 27.04.2023 i.e preceding seven years from the date of Techno-Commercial bid opening can only be considered. In view of the fact that the petitioner bidders executed value prior to 28.04.2016 and the same worked out to be Rs.89,72,837/- and the approximate executed value in the subsequent period works out to INR 31,21,50,254.00, the petitioner admittedly, fell short of qualification requirements of Rs.32 crore and hence, petitioner (bidder) did not fulfill the qualification requirement and did not meet the QR conditions. This Court opines that the plea of the petitioner that para V of Tender Notice Qualifying Requirements for bidders does not speak about the Financial Preceding seven years and in absence of any nomenclature of Financial Year in the Technical Criteria, the respondents herein ought to have considered the experience certificate submitted by the petitioner is untenable, in view of the fact that the petitioner failed to fulfill the qualification requirements since as per the required eligibility criteria, the executed value in last seven years reckoned from the date of Techno-Commercial Bid opening should be taken into consideration and admittedly, in the present case, the same is less than QR requirement of INR 32 crores. In so far as the plea of the 1st respondent that on the ground of territorial jurisdiction, the writ petition needs to be dismissed for want of jurisdiction, this Court opines that the same is answered in favour of the petitioner, as per the judgment dated 05.11.2020 of the Apex Court reported in 2020 (10) SCC page 766 in Shanthi Devi alias Shanthi Mishra v Union of India and others (para 17 to 20), since the bid of the petitioner pertains to the Bid No.GEM/2023/B/3210393, dated 09.03.2023 for rate contract for transportation of pond Ash from NTPC, Ramagundam to NHAI Road Construction Projects, and in particular, paras 17 to 20 of the said judgment, read as under: “17. Mulla on the Code of Civil Procedure while commenting on Section 20 of the Civil Procedure Code defined cause of action in following words :- "The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact by which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court……………….” 18. P. Ramanatha Aiyar in Advanced Law Lexicon, 3rd Edition, Volume 1, has defined the cause of action in following words:- “’Cause of action’ has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. "Cause of action" has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of the grievance founding the action, not merely the technical cause of action.” 19. Black’s Law Dictionary defines the cause of action in following words:- “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person…………” 20. This Court had occasion to consider the cause of action in context of Article 266 of the Constitution and has explained the expression “cause of action” in large number of cases. We may refer to a Three Judge Bench judgment of this Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711 where in paragraphs 5 and 6 following has been laid down:- “5. We may refer to a Three Judge Bench judgment of this Court in Oil and Natural Gas Commission Vs. Utpal Kumar Basu and Ors., (1994) 4 SCC 711 where in paragraphs 5 and 6 following has been laid down:- “5. Clause (1) of Article 226 begins with a non obstante clause — notwithstanding anything in Article 32 — and provides that every High Court shall have power “throughout the territories in relation to which it exercises jurisdiction”, to issue to any person or authority, including in appropriate cases, any Government, “within those territories” directions, orders or writs, for the enforcement of any of the rights conferred by Part III or for any other purpose. Under clause (2) of Article 226 the High Court may exercise its power conferred by clause (1) if the cause of action, wholly or in part, had arisen within the territory over which it exercises jurisdiction, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. On a plain reading of the aforesaid two clauses of Article 226 of the Constitution it becomes clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution or for any other purpose if the cause of action, wholly or in part, had arisen within the territories in relation to which it exercises jurisdiction, notwithstanding that the seat of the Government or authority or the residence of the person against whom the direction, order or writ is issued is not within the said territories. In order to confer jurisdiction on the High Court of Calcutta, NICCO must show that at least a part of the cause of action had arisen within the territorial jurisdiction of that Court. That is at best its case in the writ petition. 6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. That is at best its case in the writ petition. 6. It is well settled that the expression “cause of action” means that bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. In Chand Kour v. Partab Singh [ILR (1889) 16 Cal 98, 102 : 15 IA 156] Lord Watson said: “… the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition. Therefore, the question whether in the instant case the Calcutta High Court had jurisdiction to entertain and decide the writ petition in question even on the facts alleged must depend upon whether the averments made in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish that a part of the cause of action had arisen within the jurisdiction of the Calcutta High Court.” 16. In so far as the merits of the case are concerned, this Court opines respondent Nos. 1 to 3 acted reasonably and fairly within the bounds of reasonableness and there is no misuse of statutory powers by respondent Nos. 1 to 3 herein that warrants interference under Article 226 of the Constitution of India. 17. This Court opines that the petitioner has failed to establish that he has a legal right to the performance of legal duty by the respondents against whom mandamus is sought for. 1 to 3 herein that warrants interference under Article 226 of the Constitution of India. 17. This Court opines that the petitioner has failed to establish that he has a legal right to the performance of legal duty by the respondents against whom mandamus is sought for. The Apex Court in the judgment dated 12.04.1996 in State of U.P. & Others vs. Harish Chandra & Others reported in (1996) 9 SCC 309 at para 10 observed as under : “Under the constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom mandamus is sought and the said right was subsisting on the date of petition. The duty that may be enjoyed by mandamus may be one imposed by the constitution or a statute or by rules or orders having the force of law, but no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law”. 18. The Apex Court in Jagdish Mandal v State of Orissa and others reported in 2007 (14) SCC page 517 at para 22 observed as under: “22…. 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. 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. If the answers are in the negative, there should be no interference under Article 226. 19. Taking into consideration, the aforesaid facts and circumstances and duly considering the averments made by the respondent Nos. If the answers are in the negative, there should be no interference under Article 226. 19. Taking into consideration, the aforesaid facts and circumstances and duly considering the averments made by the respondent Nos. 1 to 3 in their counter affidavit in particular, paras 13, 14 15 and 16 and taking into consideration the law laid down by the Apex Court in the judgments relied upon by the learned counsel for the respondents (referred to above) and duly taking into consideration, the law laid down by the Apex Court reported in 2020 (10) SCC page 766 in Shanthi Devi alias Shanthi Mishra v Union of India and others (referred to above) and the view taken by the Apex Court in the judgment dated 12.04.1996 in State of U.P. and others v Harish Chandra and others reported in 1996(9) SCC 309 (referred to and extracted above) and applying the view taken by the Apex Court in Jagdish Mandal v State of Orissa and others reported in 2007 (14) SCC page 517 (referred to and extracted above) and posing the said questions, as indicated in the said judgment to this Court itself, this Court opines that the answers are in the negative, therefore, the present writ petition is dismissed since the same is devoid of merits. It is however, observed that it is open for the respondent Nos. 1 to 3, if they so desire and intend to enter into negotiations with the petitioner to grant relaxation provided such relaxation is permissible under the terms governing the tender process as observed in the last four lines at para 8 of the judgment of the Apex Court dated 29.11.2013 reported in 2014 (3) SCC page 760 in Maa Binda Express Carrier and another v North-East Frontier Railway and others. 20. The interim order dated 03.07.2023 passed in I.A.No.5 of 2023 stands vacated. Miscellaneous petitions, if any, pending shall stand closed. However, there shall be no order as to costs.