P. B. Bajanthri, J. – In the instant petition, the petitioner has prayed for the following reliefs: – “a. For issuance of an appropriate Writ/s, order/s, direction/s in the nature of certiorari quashing the said decision of the Respondent Bihar State Warehousing Corporation by which the Tender pursuant to (Notice Inviting Tender) NIT No. TH 01/2021-22 for appointment of Transporting & Handling Contractor to carry out Handling & Transporting works attached to Narpatganj Warehousing Centre has been allotted in favour of Respondent No. 6. b. For issuance of an appropriate Writ/s, order/s. direction/s in the nature of certiorari quashing the Letter of Award (hereinafter referred to as LOA) and consequent execution of contract Agreement by the Respondent Bihar State Ware Housing Corporation in favour of Respondent No. 6 pursuant to its Notice Inviting Tender (NIT) No. TH- 01/2021-22 and consequently declare the said LOA and Contract Agreement to be null & void and inoperative and forfeit the earnest money as well as security deposit amount and blacklist the Respondent No. 6 from future participation in any Bid. c. For issuance of an appropriate Writ/s, order/s. direction/s in the nature of certiorari quashing the work order as communicated by the Managing Director of Bihar State Warehousing Corporation to the Respondent No. 6 by letter bearing no. 245 dated 28.01.2022 by which Respondent No. 6 has been appointed as Transporting & Handling Contractor for the period of Agreement i.e. 01.02.2022 31.01.2024. d. For issuance of an appropriate Writ/s, order/s. direction/s in the nature of Mandamus commanding the Respondent Bihar State Ware Housing Corporation to reconsider the entire Bids pursuant to Notice Inviting Tender (NIT) No. TH-01/2021-22 and award the contract in its favour and appoint the Petitioner as Transporting & Handling Contractor to carry out Handling & Transporting works attached to BSWC Narpatganj Centre as the Petitioner is the sole Bidder who fulfills all the terms of MTF and duly qualifies for the aforesaid Bid. e. For issuance of an appropriate Writ in the nature of certiorari quashing the Registration of the Petitioner with the Bihar State Warehousing Corporation bearing Registration No. BUSS/CORD/2021-22/TH- 91. f. For issuance of any other order/orders or relief/reliefs for which the Petitioner may be found to be entitled in the facts and circumstances of the case.” 2. Gist of the matter are as under: – (i) On 02.12.2021, NIT was notified for transporting and handling contract. f. For issuance of any other order/orders or relief/reliefs for which the Petitioner may be found to be entitled in the facts and circumstances of the case.” 2. Gist of the matter are as under: – (i) On 02.12.2021, NIT was notified for transporting and handling contract. Pursuant to NIT dated 02.12.2021 by the Bihar State Warehousing Corporation (for short ‘Corporation’), both the petitioner and respondent no. 6 are bidders. Letter of award and contract was in favour of the respondent no. 6, to that effect, the concerned authority issued a letter on 28.01.2022. The petitioner filed a suit bearing no. 15 of 2022 before the Sub-Ordinate Judge, Darbhanga on 08.02.2022 and it is pending consideration as on today. (ii) Simultaneously, he had submitted a representation to the respondent-Corporation on 19.02.2022. In the suit, vide order dated 07.06.2022, parties were directed to maintain status quo with reference to award of contract. Feeling aggrieved by the status quo order, Civil Misc. No. 181 of 2022 was filed before this Court and this Court has stayed the suit proceedings on 29.06.2022. (iii) The petitioner had submitted an application to withdraw the Suit No. 15 of 2022 on 11.08.2022. The learned Judge has not passed any order, on the score that Civil Misc. No. 181 of 2022 is pending consideration before this Court. In this backdrop, the petitioner has presented this writ petition. 3. On 18.04.2023, the following order was passed: – “With the consent of learned counsels for the respective parties, we are referring the subject matter to the Chairperson of the Bihar State Warehousing Corporation to constitute a committee consisting of three persons including the Chairperson to examine award of contract to 6th respondent Mr. Manoj Singh is in order or not? In this regard, the committee shall take all the material information from the date of NIT till award of contract read with agreement dated 28.01.2022 and prepare comparative chart and a report whether 6 respondent fulfills requisite conditions stipulated in the NIT or not? Such report shall be placed on record before the next date of hearing. Relist the matter on 16.05.2023. It is made clear that no further time would be granted, for the reasons that tenure of the agreement is from 01.02.2022 to 31.01.2024. Original records received by the respondents counsel - Mr. Such report shall be placed on record before the next date of hearing. Relist the matter on 16.05.2023. It is made clear that no further time would be granted, for the reasons that tenure of the agreement is from 01.02.2022 to 31.01.2024. Original records received by the respondents counsel - Mr. Mithilesh Kumar Rai is permitted to be returned to the concerned official respondent and he will secure those records on the next date of hearing.” 4. The concerned authority proceeded to submit a report dated 15.05.2023, in which it is reiterated that 6th respondent’s bid application and other documents were in order and the same has not been questioned by the petitioner. Submission of the petitioner: 5. Learned counsel for the petitioner submitted that respondent no. 6 has failed to comply Clause 14 (xvii) of NIT. The aforementioned clause is relating to eligibility criteria of a bidder that two crores per year for two financial years. Such a material is for the last five years. The petitioner has failed to comply this clause. 6. Further, it is submitted that the respondent no. 6 had not fulfilled the requisite criteria. Taking note of the same, the petitioner is stated to have filed RTI application on 17.01.2022 and material information was made available to the petitioner on 18.01.2022 and it has been placed on record at Annexure R-14 (series). The material information is as under:- A. Rs. 95,336.40/- for the year 2019-2020. B. Rs. 62,78,552/- for the year 2020-2021. C. Rs. 1,31, 87, 488.91 for the year 2021-2022. Thus, 6th respondent had not met the aforementioned clauses. 7. It is further submitted that Clause 14 (xiv) of the NIT relates to Annual Turnover. The petitioner is relying on certificate dated 05.01.2022 at Annexure- 15. It is also submitted that before awarding of contract, the respondent-Corporation have taken note of the fact that the respondent no. 6 did not fulfill the Annual Turnover clause. It is evident from the original file. It is further submitted that each bidder is required to submit affidavit to the extent that bidders’ kith and kin are not engaged with the corporation as an employee or an officer, to that effect an affidavit of the respondent no. 6 dated 08.11.2021 has been filed, which is much prior to date of NIT dated 02.12.2021. 8. The petitioner pointed out that Clause 14 (xv) is relating to bank balance. 6 dated 08.11.2021 has been filed, which is much prior to date of NIT dated 02.12.2021. 8. The petitioner pointed out that Clause 14 (xv) is relating to bank balance. The respondent no. 6 failed to fulfill the criteria mentioned in the bank balance clause, the clause demands that one crore whereas (Annexure-16), the bank certificate furnished by the respondent no. 6, reveals that Bank balance is a sum of Rs.35,87,745.01/- as on 04.10.2021. 9. Learned counsel for the petitioner cited decision of this Court in the case of Naveen Kumar Singh vs. The State of Bihar & Ors., passed in C.W.J.C. No. 13501 of 2022 [: 2023 (5) BLJ 397 ], para 4 and 7 of the same reads as under: – “4. At the time of arguments, the learned counsel for the petitioner has confined the prayer to the extent of setting aside the work order dated 28.01.2022 issued by the respondent No.1-Corporation in favour of respondent No. 6. The learned counsel for the petitioner has stated that the tender filed by the Respondent No.6 ought to have been rejected at the stage of Technical Bid itself but the authorities for the reasons best known to them have qualified the Respondent No.6 in the Technical Bid even though the Respondent No.6 was not eligible for the same. The learned counsel for the petitioner has laid stress on the following three points i.e, with regard to the requirement of the Annual Turn Over of the tender participating Bidder; the Average Monthly Balance of the Bidder/Contractor; and the Experience Certificate produced by the Bidder. The learned counsel for the petitioner has stated that the Respondent No.6 has produced forged and fabricated documents and submitted fake Experience Certificate, which do not meet the requirements of the Tender document. The learned counsel has taken this Court to the various documents filed by the Respondent No.6 along with the tender document. That as per Clause 14 (xv) of the NIT, which mandates that the Average Monthly Balance of the Bidder/Contractor in the Financial Year for three months should be minimum of Rs. Two Crore for the Category - 1 Bidder and minimum of Rs. One Crore for Category - 2 Bidder and minimum of Rs.50 lakh for Category-3 Bidder but the Bank Balance Certificate filed by the Respondent No.6 does not bear the account number in which the balance has been shown. Two Crore for the Category - 1 Bidder and minimum of Rs. One Crore for Category - 2 Bidder and minimum of Rs.50 lakh for Category-3 Bidder but the Bank Balance Certificate filed by the Respondent No.6 does not bear the account number in which the balance has been shown. That insofar as Experience Certificate filed by the respondent No.6 is concerned, as per Clause 14 (xvii) of NIT, the Bidder has to submit the experience certificate in the prescribed Format of the NIT disclosing the Rail Rake handling & transportation work of different commodities viz. Agricultural product Food Grains/Seed/CoarseGrains/Fertilizers/Cement/Sugar/oth er goods etc. of Rupees Five Crores per year for two financial years during last 5 years for Category 1 & rupees two crores per year for two financial years during last 5 years for Category 2 & rupees one crore per year for two financial years during last 5 years for Category 3 but the Respondent No.6 has submitted the Experience Certificate of one Sri Satish Kumar Singh, who has not even participated in the tender process. The learned counsel has stated that Sri Satish Kumar Singh is stranger to the bid and the Experience Certificate submitted by the 6th respondent of the said Satish Kumar Singh cannot be equated as the Experience Certificate of the Respondent No.6. That even though the Respondent No.6 is trying to show that a Memorandum of Association has been entered between said Satish Kumar Singh and the Respondent No.6, it is pertinent to note that the said Memorandum of Understanding is not valid in the eye of law as the partner cannot be substituted in a partnership firm through a Memorandum of Understanding but only through a substitution of partner as contemplated under relevant provision of the Partnership Act, 1932. Moreover, the total work from Rail Rake Handling & Transportation for the Financial Year 2017-18 is Rs.7,06,214/- and therefore, the same does not meet the eligibility criterion under the Bid Document and as contemplated under Clause 14 (xvii) of NIT. Though the authorities were apprised of the above said facts, they ignored the objections raised by the petitioner and allotted the work order to the Respondent No. 6, contrary to the Tender Notice and ultimately prayed this Hon’ble Court to set aside the work order dated 28.01.2022 issued by the respondent No.1 in favour of respondent No.6. 7. Though the authorities were apprised of the above said facts, they ignored the objections raised by the petitioner and allotted the work order to the Respondent No. 6, contrary to the Tender Notice and ultimately prayed this Hon’ble Court to set aside the work order dated 28.01.2022 issued by the respondent No.1 in favour of respondent No.6. 7. A perusal of the document, more particularly, the tender document i.e, Notice Inviting Tender (NIT) No. TH-01/2021-22 issued by the Respondent No. 1 shows that the said tender document has been issued for the Transportation and Handling works of different commodities. It is pertinent to note that as per Clause 14(ix)(a), eligible person to participate in the tender document must be a partner in any partnership firm, which should have a registered partnership deed and as per Clause 14(xiv) of NIT, the Bidder should have a Minimum Annual Turn Over of Rs. Five Crore for the category-I and Rs.2 Crore for category-2 and Rs.1 Crore for category-3 and as per clause 14 (xv) of NIT, the Bidder should have minimum Average Monthly Balance of rupees two crores for category-1 and rupees one crore for category-2 and Rs.50 lakh for category-3 and as per clause 14 (xvii) of NIT, Bidder should have an Experience Certificate disclosing the work executed relating to Rail Rake handling and transportation work of different commodities i.e, Agricultural product Food Grains/Seed/CoarseGrains/Fertilizers/Cement/Sugar/oth er goods etc. of Rupees Five Crores per year for two financial years during last 5 years for category 1 & Rs.Two crores per year for two financial years during last 5 years for category 2 & Rs.One Crore per year for two financial years during last 5 years for category 3. Further, as per Clause 20 of the NIT, any information furnished by the bidders which is wrong/forged or any forged documents/ certificates/Affidavits are filed, the tender filed by the said Bidder would be invalid and would be cancelled and the amount deposited by the said Bidder would be forfeited and action would be taken in accordance with law.” 10. It is also submitted that filing of the affidavit of the respondent no. 6 dated 08.11.2021 has not been countered in their counter affidavit. The last submission is that Clause 20 of NIT is required to be invoked against the respondent no. 6. Submission of the Respondent – Corporation 11. It is also submitted that filing of the affidavit of the respondent no. 6 dated 08.11.2021 has not been countered in their counter affidavit. The last submission is that Clause 20 of NIT is required to be invoked against the respondent no. 6. Submission of the Respondent – Corporation 11. Learned counsel for the respondent-Corporation submitted that the present writ petition is not maintainable since the petitioner has already invoked remedy in filing Suit No. 15 of 2022 and it is pending consideration before Sub-Judge, Darbhanga. He has reiterated the other dates and events, like submission of representation to the Corporation on 19.02.2022, status quo orders passed in OS No. 15 of 2022, interim stay order passed in CM No. 181 of 2022. Other than this, it is also submitted that in terms of Clause 24 of NIT, the petitioner had remedy of appeal before the Appellate Authority and without exhausting such remedy, he has invoked remedy of filing suit as well as filing of the present writ petition. Therefore the petitioner has the statutory remedy of appeal and so also pursuing suit read with CM 181 of 2022. On this ground, the petition is liable to be dismissed. No other contention has been urged. In other words, Corporation has not made any submission on the issue of violation of NIT clauses by the 6th respondent and awarding contract in favour of Respondent No. 6 is in order or not? Submission of the 6 th respondent: 12. Learned counsel for the respondent no. 6 reiterated that the writ petition is not maintainable in the light of the facts narrated by the learned counsel for the Corporation to the extent that the petitioner has already invoked remedy of suit and further C.M No. 181 of 2022 which is pending consideration, that apart the petitioner has statutory remedy of appeal under Clause 24 of the NIT and further the petitioner has not assailed the report dated 15.05.2023 pursuant to the order of this Court dated 18.04.2023. Learned counsel for the respondent no. 6 further vehemently contended that subject matter of NIT would be completed by 28.01.2024, therefore no interference is called for. 13. Further, it is submitted that turnover Clause has been taken note of by the Corporation. Learned counsel for the respondent no. 6 further vehemently contended that subject matter of NIT would be completed by 28.01.2024, therefore no interference is called for. 13. Further, it is submitted that turnover Clause has been taken note of by the Corporation. Reading of Clause 14 (xiv) of NIT, the criteria mentioned read with certificate produced by the petitioner insofar as the bank balance and certificate, it requires that three months over a period of one year is required to be taken note of, whereas the respondent no. 6 turnover for a particular period is Rs. 1,75,02,416/-. Other than these contentions, no other contention has been urged. Findings: 14. Heard the learned counsels for the respective parties. 15. Before adverting to the merits of the case, it is necessary to address the issue of maintainability of the present writ petition in the light of submission made on behalf of respondent – Corporation and 6th respondent. Respondent – Corporation issued NIT on 02.12.2021 for transporting and handling the Contract. Both petitioner and respondents No. 6 and others were bidders. Respondent No. 6 was a successful bidder. Award of contract in favour of 6th respondent is subject matter of the present petition. 16. Award of contract in favour of 6th respondent was subject matter of Suit No. 15 of 2022 on the file of the Subordinate Judge, Darbhanga and it was filed on 08.02.2022 in Suit No. 15 of 2022. Parties were directed to maintain status quo and it was subject matter of Civil Misc. No. 181 of 2022 before this Court and this Court has stayed the proceedings in Suit No. 15 of 2022. The petitioner who is plaintiff in Suit No. 15 of 2022 has filed application to withdraw the Suit No. 15 of 2022. In this backdrop, the petitioner has filed the present writ petition. 17. Learned counsels for the respondent – Corporation and 6th respondent all along contended that the present writ petition is not maintainable on the score that petitioner has a remedy of appeal before the appellate authority under Clause 24 of the NIT read with the fact that Suit No. 15 of 2022 and C.M. No. 181 of 2022 are pending consideration. 18. Learned counsel for the petitioner submitted that since he has submitted application for withdrawal of Suit No. 15 of 2022. 18. Learned counsel for the petitioner submitted that since he has submitted application for withdrawal of Suit No. 15 of 2022. Therefore, he need not exhaust the remedy of appeal under Clause 24 of the NIT and the fact that respondent – Corporation has violated various Clauses under Clause 14 of the NIT. In other words, arbitrary decision has been taken by the respondent – Corporation ignoring that the 6th respondent is not fulfilling various criteria under Clause 14 of NIT. Therefore, it is a clear case of arbitrary action of the respondent – Corporation. Respondent – Corporation, which falls under the definition of Article 12 of the Constitution that it is a State, therefore, writ is maintainable and the contention of the respondent – Corporation and 6th respondent are liable to be rejected that writ is not maintainable. 19. Perusal of the records, we find that respondent – Corporation action in awarding the contract in favour of the 6th respondent are in violation of Clause 14 (xiv), Clause 14 (xv) and Clause 14 (xvii) and bidder - 6th respondent has filed affidavit dated 08.11.2021 whereas the NIT was issued on 02.12.2021. These are all glaring errors committed by the 6th respondent, the same has not been noticed by the respondent – Corporation or knowingly they have favoured 6th respondent in awarding the contract. Therefore, prima facie, writ petition is maintainable on the score that respondent – Corporation in awarding contract to 6th respondent is arbitrary. 20. Apex Court has laid down certain principles insofar as entertaining tender matters by the Writ Courts like arbitrariness in awarding of contract or process of tender by a public authority. In the present case, respondent – Corporation is a public authority. It is necessary to take note of Apex Court decision in the case of Mahabir Auto Stores and Others vs. Indian Oil Corporation and Others reported in (1990) 3 SCC 752 , para 12. Para 12 reads as under: – “12. It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. Para 12 reads as under: – “12. It is well settled that every action of the State or an instrumentality of the State in exercise of its executive power, must be informed by reason. In appropriate cases, actions uninformed by reason may be questioned as arbitrary in proceedings under Article 226 or Article 32 of the Constitution. Reliance in this connection may be placed on the observations of this Court in Radha Krishna Agarwal vs. State of Bihar [ (1977) 3 SCC 457 ] . It appears to us, at the outset, that in the facts and circumstances of the case, the respondent company IOC is an organ of the State or an instrumentality of the State as contemplated under Article 12 of the Constitution. The State acts in its executive power under Article 298 of the Constitution in entering or not entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercises of power. Therefore, the action of State organ under Article 14 can be checked. See Radha Krishna Agarwal vs. State of Bihar [ (1977) 3 SCC 457 ] at p. 462, but Article 14 of the Constitution cannot and has not been construed as a charter for judicial review of State action after the contract has been entered into, to call upon the State to account for its actions in its manifold activities by stating reasons for such actions. In a situation of this nature certain activities of the respondent company which constituted State under Article 12 of the Constitution may be in certain circumstances subject to Article 14 of the Constitution in entering or not entering into contracts and must be reasonable and taken only upon lawful and relevant consideration; it depends upon facts and circumstances of a particular transaction whether hearing is necessary and reasons have to be stated. In case any right conferred on the citizens which is sought to be interfered, such action is subject to Article 14 of the Constitution, and must be reasonable and can be taken only upon lawful and relevant grounds of public interest. Where there is arbitrariness in State action of this type of entering or not entering into contracts, Article 14 springs up and judicial review strikes such an action down. Every action of the State executive authority must be subject to rule of law and must be informed by reason. Where there is arbitrariness in State action of this type of entering or not entering into contracts, Article 14 springs up and judicial review strikes such an action down. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, in such monopoly or semi-monopoly dealings, it should meet the test of Article 14 of the Constitution. If a governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. In this connection reference may be made to E.P. Royappa vs. State of Tamil Nadu [ (1974) 4 SCC 3 : 1974 SCC (L&S) 165], Maneka Gandhi vs. Union of India [ (1978) 1 SCC 248 ], Ajay Hasia vs. Khalid Mujib Sehravardi [ (1981) 1 SCC 722 : 1981 SCC (L&S) 258], R.D. Shetty vs. International Airport Authority of India [ (1979) 3 SCC 489 ] and also Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay [ (1989) 3 SCC 293 ] . It appears to us that rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens in a situation like the present one. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination in the type of the transactions and nature of the dealing as in the present case.” 21. Apex Court in the case of United Limited and Others vs. Telangana State Industrial Infrastructure Corporation (TSIIC) and Others reported in 2021 SCC Online SC 99, it is held as under: – “38. Much of the ground which was sought to be canvassed in the course of the pleadings is now subsumed in the submissions which have been urged before this Court on behalf of the State of Telangana and TSIIC. Much of the ground which was sought to be canvassed in the course of the pleadings is now subsumed in the submissions which have been urged before this Court on behalf of the State of Telangana and TSIIC. As we have noted earlier, during the course of the hearing, learned Senior Counsel appearing on behalf of the State of Telangana and TSIIC informed the Court that the entitlement of Unitech to seek a refund is not questioned nor is the availability of the land for carrying out the project being placed in issue. Learned Senior Counsel also did not agitate the ground that a remedy for the recovery of moneys arising out a contractual matter cannot be availed of under Article 226 of the Constitution. However, to clear the ground, it is necessary to postulate that recourse to the jurisdiction under Article 226 of the Constitution is not excluded altogether in a contractual matter. A public law remedy is available for enforcing legal rights subject to well-settled parameters. 39. A two judge Bench of this Court in ABL International Ltd. vs. Export Credit Guarantee Corporation of India [ABL International] analyzed a long line of precedent of this Court to conclude that writs under Article 226 are maintainable for asserting contractual rights against the state, or its instrumentalities, as defined under Article 12 of the Indian Constitution. Speaking through Justice N Santosh Hegde, the Court held: “27. …the following legal principles emerge as to the maintainability of a writ petition: (a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable. (b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. (c) A writ petition involving a consequential relief of monetary claim is also maintainable.” 40. This exposition has been followed by this Court, and has been adopted by three-judge Bench decisions of this Court in State of UP vs. Sudhir Kumar and Popatrao Vynkatrao Patil vs. State of Maharashtra. The decision in ABL International, cautions that the plenary power under Article 226 must be used with circumspection when other remedies have been provided by the contract. But as a statement of principle, the jurisdiction under Article 226 is not excluded in contractual matters. The decision in ABL International, cautions that the plenary power under Article 226 must be used with circumspection when other remedies have been provided by the contract. But as a statement of principle, the jurisdiction under Article 226 is not excluded in contractual matters. Article 23.1 of the Development Agreement in the present case mandates the parties to resolve their disputes through an arbitration. However, the presence of an arbitration clause within a contract between a state instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226. If the state instrumentality violates its constitutional mandate under Article 14 to act fairly and reasonably, relief under the plenary powers of the Article 226 of the Constitution would lie. This principle was recognized in ABL International: “28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. vs. Registrar of Trade Marks [ (1998) 8 SCC 1 ].) And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” (emphasis supplied) 41. Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. Therefore, while exercising its jurisdiction under Article 226, the Court is entitled to enquire into whether the action of the State or its instrumentalities is arbitrary or unfair and in consequence, in violation of Article 14. The jurisdiction under Article 226 is a valuable constitutional safeguard against an arbitrary exercise of state power or a misuse of authority. In determining as to whether the jurisdiction should be exercised in a contractual dispute, the Court must, undoubtedly eschew, disputed questions of fact which would depend upon an evidentiary determination requiring a trial. But equally, it is well-settled that the jurisdiction under Article 226 cannot be ousted only on the basis that the dispute pertains to the contractual arena. This is for the simple reason that the State and its instrumentalities are not exempt from the duty to act fairly merely because in their business dealings they have entered into the realm of contract. Similarly, the presence of an arbitration clause does oust the jurisdiction under Article 226 in all cases though, it still needs to be decided from case to case as to whether recourse to a public law remedy can justifiably be invoked. The jurisdiction under Article 226 was rightly invoked by the Single Judge and the Division Bench of the Andhra Pradesh in this case, when the foundational representation of the contract has failed. TSIIC, a state instrumentality, has not just reneged on its contractual obligation, but hoarded the refund of the principal and interest on the consideration that was paid by Unitech over a decade ago. It does not dispute the entitlement of Unitech to the refund of its principal. 22. Apex Court in the case of M.P. Power Management Co. Ltd. vs. Sky Power Southeast Solar India (P) Ltd. & Ors. reported in (2023) 2 SCC 703 and 2022 LiveLaw (SC) 966, paragraph nos. 33, 44, 47, 48, 52 and 54 it is held as under: – “33. As to what constitutes arbitrariness is captured in paragraph 36 and it reads as follows: “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answeredon the facts and in the circumstances of a given case. As to what constitutes arbitrariness is captured in paragraph 36 and it reads as follows: “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answeredon the facts and in the circumstances of a given case. An obvious test to apply is to see whetherthere is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.” 44. The court went on to approve of ABL (supra) and observed that this Court had declared that no decision lays down as an absolute rule that in all cases of disputed questions of fact, the parties should be relegated to a civil Court. We may also notice paragraph 29: “29. Although the scope of judicial review or the development of law in this field has been noticed hereinbefore particularly in the light of the decision of this Court in ABL International Ltd. [ (2004) 3 SCC 553 ] each case, however, must be decided on its own facts. Public interest as noticed hereinbefore, may be one of the factors to exercise the power of judicial review. In a case where a public law element is involved, judicial review may be permissible. (See Binny Ltd. vs. V. Sadasivan [ (2005) 6 SCC 657 : 2005 SCC (L&S) 881] and G.B. Mahajan vs. Jalgaon Municipal Council [ (1991) 3 SCC 91 ] 47. In a case where a public law element is involved, judicial review may be permissible. (See Binny Ltd. vs. V. Sadasivan [ (2005) 6 SCC 657 : 2005 SCC (L&S) 881] and G.B. Mahajan vs. Jalgaon Municipal Council [ (1991) 3 SCC 91 ] 47. We may notice that as to what constitutes arbitrariness fell for consideration by this court in a case which involved cancellation of the examination held as part of a recruitment process, in East Coast Railway and another vs. Mahadev Appa Roa and others. We notice the following passages which are apposite for this case. “19. Black's Law Dictionary describes the term “arbitrary” in the following words: “Arbitrary. – 1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious.” 20. To the same effect is the meaning given to the expression “arbitrary” by Corpus Juris Secundum which explains the term in the following words: “Arbitrary. – Based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one's own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, non-rational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, ‘arbitrary’ has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with ‘willful’.” 23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 48. We would, therefore, sum up as to when an act is to be treated as arbitrary. The court must carefully attend to the facts and the circumstances of the case. It should find out whether the impugned decision is based on any principle. If not, it may unerringly point to arbitrariness. If the act betrays caprice or the mere exhibition of the whim of the authority it would sufficiently bear the insignia of arbitrariness. In this regard supporting an order with a rationale which in the circumstances is found to be reasonable will go a long way to repel a challenge to state action. No doubt the reasons need not in every case be part of the order as such. If there is absence of good faith and the action is actuated with an oblique motive, it could be characterised as being arbitrary. A total non application of mind without due regard to the rights of the parties and public interest may be a clear indicator of arbitrary action. A wholly unreasonable decision which is little different from a perverse decision under the Wednesbury doctrine would qualify as an arbitrary decision under Article 14. Ordinarily visiting a party with the consequences of its breach under a contract may not be an arbitrary decision. 52. In State of U.P. vs. Sudhir Kumar Singh and Others, the first respondent the successful tenderer had worked the contract for a year when he was visited with cancellation. This Court exhaustively referred to the earlier case law including ABL (supra) and Joshi Technology (supra) and held, inter alia, as follows: – “23. 52. In State of U.P. vs. Sudhir Kumar Singh and Others, the first respondent the successful tenderer had worked the contract for a year when he was visited with cancellation. This Court exhaustively referred to the earlier case law including ABL (supra) and Joshi Technology (supra) and held, inter alia, as follows: – “23. It may be added that every case in which a citizen/person knocks at the doors of the writ court for breach of his or its fundamental rights is a matter which contains a “public law element”, as opposed to a case which is concerned only with breach of contract and damages flowing therefrom. Whenever a plea of breach of natural justice is made against the State, the said plea, if found sustainable, sounds in constitutional law as arbitrary State action, which attracts the provisions of Article 14 of the Constitution of India - see Nawabkhan Abbaskhan vs. State of Gujarat (1974) 2 SCC 121 at paragraph 7. The present case is, therefore, a case which involves a “public law element” in that the petitioner (Respondent No. 1 before us) who knocked at the doors of the writ court alleged breach of the audi alteram partem rule, as the entire proceedings leading to cancellation of the tender, together with the cancellation itself, were done on an ex parte appraisal of the facts behind his back. 54. (iii) The mere fact that relief is sought under a contract which is not statutory, will not entitle the respondent- State in a case by itself to ward-off scrutiny of its action or inaction under the contract, if the complaining party is able to establish that the action/ inaction is, per se, arbitrary. (iv) An action will lie, undoubtedly, when the State purports to award any largesse and, undoubtedly, this relates to the stage prior to the contract being entered into [See R.D. Shetty (supra)]. This scrutiny, no doubt, would be undertaken within the nature of the judicial review, which has been declared in the decision in Tata Cellular vs. Union of India. (x) The reach of Article 14 enables a Writ Court to deal with arbitrary State action even after a contract is entered into by the State. A wide variety of circumstances can generate causes of action for invoking Article 14. (x) The reach of Article 14 enables a Writ Court to deal with arbitrary State action even after a contract is entered into by the State. A wide variety of circumstances can generate causes of action for invoking Article 14. The Court’s approach in dealing with the same, would be guided by, undoubtedly, the overwhelming need to obviate arbitrary State action, in cases where the Writ remedy provides an effective and fair means of preventing miscarriage of justice arising from palpably unreasonable action by the State. (xii) In a case the State is a party to the contract and a breach of a contract is alleged against the State, a civil action in the appropriate Forum is, undoubtedly, maintainable. But this is not the end of the matter. Having regard to the position of the State and its duty to act fairly and to eschew arbitrariness in all its actions, resort to the constitutional remedy on the cause of action, that the action is arbitrary, is permissible (See in this regard Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others). However, it must be made clear that every case involving breach of contract by the State, cannot be dressed up and disguised as a case of arbitrary State action. While the concept of an arbitrary action or inaction cannot be cribbed or confined to any immutable mantra, and must be laid bare, with reference to the facts of each case, it cannot be a mere allegation of breach of contract that would suffice. What must be involved in the case must be action/inaction, which must be palpably unreasonable or absolutely irrational and bereft of any principle. An action, which is completely malafide, can hardly be described as a fair action and may, depending on the facts, amount to arbitrary action. The question must be posed and answered by the Court and all we intend to lay down is that there is a discretion available to the Court to grant relief in appropriate cases. (xiii) A lodestar, which may illumine the path of the Court, would be the dimension of public interest subserved by the Court interfering in the matter, rather than relegating the matter to the alternate Forum. (xiii) A lodestar, which may illumine the path of the Court, would be the dimension of public interest subserved by the Court interfering in the matter, rather than relegating the matter to the alternate Forum. (xiv) Another relevant criteria is, if the Court has entertained the matter, then, while it is not tabooed that the Court should not relegate the party at a later stage, ordinarily, it would be a germane consideration, which may persuade the Court to complete what it had started, provided it is otherwise a sound exercise of jurisdiction to decide the matter on merits in the Writ Petition itself. (xv) Violation of natural justice has been recognised as a ground signifying the presence of a public law element and can found a cause of action premised on breach of Article 14. [See Sudhir Kumar Singh and Others (supra)]” 23. In the case of Tata Motors Limited vs. The Brihan Mumbai Electric Supply & Transport Undertaking (BEST) And Ors. reported in 2023 SCC OnLine SC 671, 2023 Livelaw (SC) 467, para 48 reads as under: – “48. 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 has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. 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. 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. 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. (See : Silppi Constructions Contractors vs. Union of India, (2020) 16 SCC 489 ” 24. Apex Court in the case of M/s Gas Authority of India Ltd. vs. IPO Ltd. and others reported in (2023) 3 SCC 629 decided on 08.02.2023 [2023 (2) BLJ 124 (SC)], it is held that writ petition is maintainable if State fails to be a degree of fair or practices discrimination. In the present case there is no fairness in the processes of Tender and award of contract in favour of 6th respondent. 25. Learned counsel for the respondent – Corporation and 6th respondent submitted that once the petitioner surrenders his right before different forum like filing of Suit No. 15 of 2022 and C.M. No. 181 of 2022 and it is pending consideration, therefore, writ is not maintainable. Such a contention could have been appreciated by this Court in the event of non-filing of application for withdrawal of the Suit No. 15 of 2022. In fact, such application was filed on 11.08.2022 with liberty to file writ petition under Article 226 of the Constitution before this Court as is evident from Annexure - 10 to this C.W.J.C. Consequently C.M. 181 of 2022 does not survive for consideration and formal orders are to be passed by the respective Courts. Therefore, there is no suppression of facts. At this stage, it is necessary to take note of Apex Court’s decision in the case of Mr. Anurag Mittal vs. Mrs. Shaily Mishra Mittal in Civil Appeal No. 18312 of 2017 decided on 24.08.2018, [2018 (4) BLJ 69 (SC)] in paragraph Nos. 10, 11 and 12 read as under: – “10. Therefore, there is no suppression of facts. At this stage, it is necessary to take note of Apex Court’s decision in the case of Mr. Anurag Mittal vs. Mrs. Shaily Mishra Mittal in Civil Appeal No. 18312 of 2017 decided on 24.08.2018, [2018 (4) BLJ 69 (SC)] in paragraph Nos. 10, 11 and 12 read as under: – “10. In case of a dissolution of marriage, a second marriage shall be lawful only after dismissal of the appeal. Admittedly, the marriage between the Appellant and the Respondent was on 06.12.2011 i.e. before the order of withdrawal was passed by the Court on 20.12.2011. There is no dispute that the application for withdrawal of the appeal was filed on 28.11.2011 i.e. prior to the date of the marriage on 06.12.2011. We proceed to consider the point that whether the date of dismissal of the appeal relates back to the date of filing of the application for withdrawal of the appeal. Order XXI Rule 89 (2) of the Code of Civil Procedure, 1908 (hereinafter referred to as “the CPC”) provides that unless an application filed under Order XXI Rule 90 of the CPC is withdrawn, a person shall not be entitled to make or prosecute an application under Order XXI Rule 89 of the CPC. In Shiv Prasad vs. Durga Prasad, [ (1975) 1 SCC 405 ] the contention of the Appellant therein that an application filed under the aforesaid Rule 90 does not stand withdrawn until an order to the effect is recorded by the Court, was not accepted. It was held that every applicant has a right to unconditionally withdraw his application and his unilateral act in that behalf is sufficient. No order of the Court is necessary permitting the withdrawal of the application. This Court concluded that the act of withdrawal is complete as soon as the applicant intimates the Court that he intends to withdraw the application. The High Court of Bombay in Anil Dinmani Shankar Joshi vs. Chief Officer, Panvel Municipal Council, Panvel, AIR 2003 Bom. 238 , 239 followed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be complete as soon as the plaintiff files his purshis of withdrawal. 11. 238 , 239 followed the judgment of this Court in Shiv Prasad (supra) and held that the said judgment is applicable to suits also. The High Court recognized the unconditional right of the plaintiff to withdraw his suit and held that the withdrawal would be complete as soon as the plaintiff files his purshis of withdrawal. 11. Order XXIII, Rule 1 (1) of the CPC enables the plaintiff to abandon his suit or abandon a part of his claim against all or any of the defendants. Order XXIII Rule 1 (3) of the CPC requires the satisfaction of the Court for withdrawal of the suit by the plaintiff in case he is seeking liberty to institute a fresh suit. While observing that the word abandonment in Order XXIII Rule 1 (1) of the CPC is “absolute withdrawal” which is different from the withdrawal after taking permission of the court, this Court held as follows, K.S. Bhoopathy vs. Kokila (2000) 5 SCC 458 : “12. The law as to withdrawal of suits as enacted in the present Rule may be generally stated in two parts: (a) a plaintiff can abandon a suit or abandon a part of his claim as a matter of right without the permission of the court; in that case he will be precluded from suing again on the same cause of action. Neither can the plaintiff abandon a suit or a part of the suit reserving to himself a right to bring a fresh suit, nor can the defendant insist that the plaintiff must be compelled to proceed with the suit; and (b) a plaintiff may, in the circumstances mentioned in sub-rule (3), be permitted by the court to withdraw from a suit with liberty to sue afresh on the same cause of action. Such liberty being granted by the Court enables the plaintiff to avoid the bar in Order II Rule 2 and Section 11 CPC.” 12. Order XXIII Rule 1 (1) of the CPC gives an absolute right to the plaintiff to withdraw his suit or abandon any part of his claim. There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. There is no doubt that Order XXIII Rule 1 of the CPC is applicable to appeals as well and the Appellant has the right to withdraw his appeal unconditionally and if he makes such an application to the Court, it has to grant it. Therefore, the appeal is deemed to have been withdrawn on 28.11.2011 i.e. the date of the filing of the application for withdrawal. On 06.12.2011 which is the date of the marriage between the Appellant and the Respondent, Ms. Rachna Aggarwal cannot be considered as a living spouse. Hence, Section 5 (i) is not attracted and the marriage between the Appellant and the Respondent cannot be declared as void.” 26. In the light of the aforementioned decision we have to draw inference that petitioner’s application for withdrawal of O.S. No. 15 of 2022 suffice to entertain the present writ petition, therefore, the present writ petition is maintainable insofar as relief sought in the present petition. 27. Learned counsels for the respondent – Corporation and 6th respondent submitted that petitioner has not assailed the report dated 15.05.2023 pursuant to orders of this Court dated 18.04.2023. The petitioner need not question the validity of report dated 15.05.2023. It is only for the purpose of this Court, this Court intends to know how the evaluation has been made. Even in the absence of challenge to the report, it is to be noticed that report is relating to comparative chart of technical bid. Item Nos. 14 and 17 to Annexure I, Item Nos. 14 and 17 to Annexure II and Item No. 14 to Annexure III to the report read as under: – “CWJC No. 13501/2022 Naveen Kumar vs. Bihar State Warehousing Corporation and Others (Annexure I) Bihar State Warehousing Corporation invited Online tender through e-tendering process of Beltron from registered contractors in two bid system (Technical Bid & Financial Bid) vide NIT No. TH-01/2021-22 dated 29.11.2021 & related MTF. The terms & conditions of Technical Bid are mentioned in clause 14 of the MTF & Financial Bid in clause 26 of the MTF. Notice Inviting Tender No. - TH-01/2021-22 Dated 29.11.2021 Warehousing center – Lakhisarai Centre Grade – B ‘A’ Comparative Chart of Technical Bid S.No. Relevant Terms and conditions of Technical Bid as per NIT-TH- 01/2021-22 dated – 29.11.2021. Status of Respondent No., - 6 (JMD Enter- prises) as per submitted Technical Bid. Notice Inviting Tender No. - TH-01/2021-22 Dated 29.11.2021 Warehousing center – Lakhisarai Centre Grade – B ‘A’ Comparative Chart of Technical Bid S.No. Relevant Terms and conditions of Technical Bid as per NIT-TH- 01/2021-22 dated – 29.11.2021. Status of Respondent No., - 6 (JMD Enter- prises) as per submitted Technical Bid. Remarks Annual Turnover–Annual Turnover of minimum Rs. 2.00 Crores of the Tenderer/ Contractor of the last two years (along with Audited Balance Sheet and Profit & Loss A/c and Turnover Certificate with UDIN) of Transport & Handling work of Agriculture Produce/Seeds Fertilizers/ Foodgrains/Coarse grain/ Cement/Sugar/other commodities. Certified copy to be submitted Copy of the Annual Turn- over certificate with UDIN of the Chartered Accountant for financial years 2019-20, 2018-19, 2017-18, 2016-17 & 2015-16 of above Rs. 2.00 crores submitted. 1. As per condition of NIT/MTF annual turnover certificates of last 2 years, were to be submitted. The documents submitted by respondent – 6 contain the annual turnover certificate for 5 financial years 2019-20, 2018-19, 2017-18, 2016-17 & 2015-16. The turnover certificate is issued on the basis of income tax return. It seems the assessment year of income tax return has in into consideration. 2. Enclosed income tax returns with annual turnover certificate reveal the nature of business as construction and maintenance of roads, rails, bridges, tunnels, ports etc. 17 Experience certificate– Experience certificate of tenderer as contractor of Rail Rake Transportation & Handling of Agricultural Produce/ Foodgrains/Seeds/ Fertilizer/ Coarse grains Cement/ Sugar/ other commodities of minimum Rs. 2.00 (two) Crore of two years within last five years The experience certificate should be issued by the Govt./Semi Govt./Concerned institution under the seal and signature of the issue for work done by the tenderer. The rail rake handling & transport experience certificate issued by the District Manager, State Food Corporation, Begusarai had been submitted by the tendered, mentioning the work experience in the year 2018-19 and 2019-20 as follows: Year 2018-19: 4,10,90,161.00 Year 2019-20: 2,79,44,050.00 submitted experience certificate is in the name of shri Satish Kumar Singh with whom tenderer JMD Enterprises has MOU/Partnership Copy of MOU signed on dated 06.04.2015 has been submitted. As per condition of the NIT/MTF the experience certificate should be issued by the concerned institution for work done by tendered. The submitted certificate is in the name of Satish 8 of CWJC No. - 18363/2022. As per condition of the NIT/MTF the experience certificate should be issued by the concerned institution for work done by tendered. The submitted certificate is in the name of Satish 8 of CWJC No. - 18363/2022. Kumar Singh i.e. respondent No. The tendered has submitted a copy of MOU with Satish Kumar Singh for doing Transportation business on behalf of Bihar State Food & Civil Supplies Corporation. The experience certificate issued by District Manager SFC Begusarai is in the name of Satish Kumar Singh. CWJC No. 18363/2022 Rambalak Kumar vs. Bihar State Warehousing Corporation (Annexure II) Bihar State Warehousing Corporation invited Online tender through e-tendering process of Beltron from registered contractors in two bid system (Technical Bid & Financial Bid) vide NIT No. TH-01/2021-22 dated 29.11.2021 & related MTF. The terms & conditions of Technical Bid are mentioned in clause 14 of the MTF & Financial Bid in clause 26 of the MTF. Notice Inviting Tender No. - TH-01/2021-22 Dated 29.11.2021 Warehousing center – Singheshwar Sthan (Madhepura) Centre Grade – B ‘A’ Comparative Chart of Technical Bid S.No. Relevant Terms and conditions of Technical Bid as per NIT-TH- 01/2021-22 dated – 29.11.2021. Status of Respondent No., - 6 (JMD Enter- prises) as per submitted Technical Bid. Remarks Annual Turnover–Annual Turnover of minimum Rs. 2.00 Crores of the Tenderer/ Contractor of the last two years (along with Audited Balance Sheet and Profit & Loss A/c and Turnover Certificate with UDIN) of Transport & Handling work of Agriculture Produce/Seeds Fertilizers/ Foodgrains/Coarse grain/ Cement/Sugar/other commodities. Certified copy to be submitted Copy of the Annual Turn- over certificate with UDIN of the Chartered Accountant for financial years 2019-20, 2018-19, 2017-18, 2016-17 & 2015-16 of above Rs. 2.00 crores submitted. 1. As per condition of NIT/MTF annual turnover certificates of last 2 years, were to be submitted. The documents submitted by respondent – 6 contain the annual turnover certificate for 5 financial years 2019-20, 2018-19, 2017-18, 2016-17 & 2015-16. The turnover certificate is issued on the basis of income tax return. It seems the assessment year of income tax return has in into consideration. 2. Enclosed income tax returns with annual turnover certificate reveal the nature of business as construction and maintenance of roads, rails, bridges, tunnels, ports etc. The turnover certificate is issued on the basis of income tax return. It seems the assessment year of income tax return has in into consideration. 2. Enclosed income tax returns with annual turnover certificate reveal the nature of business as construction and maintenance of roads, rails, bridges, tunnels, ports etc. 17 Experience certificate– Experience certificate of tenderer as contractor of Rail Rake Transportation & Handling of Agricultural Produce/ Foodgrains/Seeds/ Fertilizer/ Coarse grains Cement/ Sugar/ other commodities of minimum Rs. 2.00 (two) Crore of two years within last five years The experience certificate should be issued by the Govt./Semi Govt./Concerned institution under the seal and signature of the issue for work done by the tenderer. The rail rake handling & transport experience certificate issued by the District Manager, State Food Corporation, Begusarai had been submitted by the tendered, mentioning the work experience in the year 2018-19 and 2019-20 as follows: Year 2018-19: 4,10,90,161.00 Year 2019-20: 2,79,44,050.00 submitted experience certificate is in the name of shri Satish Kumar Singh with whom tenderer JMD Enterprises has MOU/Partnership Copy of MOU signed on dated 06.04.2015 has been submitted. As per condition of the NIT/MTF the experience certificate should be issued by the concerned institution for work done by tendered. The submitted certificate is in the name of Satish 8 of CWJC No. - 18363/2022. Kumar Singh i.e. respondent No. The tendered has submitted a copy of MOU with Satish Kumar Singh for doing Transportation business on behalf of Bihar State Food & Civil Supplies Corporation. The experience certificate issued by District Manager SFC Begusarai is in the name of Satish Kumar Singh. CWJC No. 13609/2022 Shri Balajee Transport vs. Bihar State Warehousing Corporation (Annexure III) Bihar State Warehousing Corporation invited Online tender through e-tendering process of Beltron from registered contractors in two bid system (Technical Bid & Financial Bid) vide NIT No. TH-01/2021-22 dated 29.11.2021 & related MTF. The terms & conditions of Technical Bid are mentioned in clause 14 of the MTF & Financial Bid in clause 26 of the MTF. Notice Inviting Tender No. - TH-01/2021-22 Dated 29.11.2021 Warehousing center – Narpatganj Centre Grade – B ‘A’ Comparative Chart of Technical Bid S.No. Relevant Terms and conditions of Technical Bid as per NIT-TH-01/2021-22 dated – 29.11.2021. Status of Respondent No.,-6(Manoj Kumar Singh) as per submitted Technical Bid Remarks 14 Annual Turnover–Annual Turnover of minimum Rs. Notice Inviting Tender No. - TH-01/2021-22 Dated 29.11.2021 Warehousing center – Narpatganj Centre Grade – B ‘A’ Comparative Chart of Technical Bid S.No. Relevant Terms and conditions of Technical Bid as per NIT-TH-01/2021-22 dated – 29.11.2021. Status of Respondent No.,-6(Manoj Kumar Singh) as per submitted Technical Bid Remarks 14 Annual Turnover–Annual Turnover of minimum Rs. 2.00 Crores of the Tenderer/ Contractor of the last two years (along with Audited Balance Sheet and Profit & Loss A/c and Turnover Certificate with UDIN) of Transport & Handling work of Agriculture Produce/Seeds Fertilizers/ Foodgrains/Coarse grain/ Cement/Sugar/other commodities. Certified copy to be submitted Copy of the Annual Turn- over certificate with UDIN of the Chartered Accountant for financial years 2019-20, 2018-19, 2017-18, 2016-17 & 2015-16 of above Rs. 2.00 crores submitted. 1. As per condition of NIT/MTF annual turnover certificates of last 2 years, were to be submitted. The documents submitted by respondent – 6 contain the annual turnover certificate for 2 financial years 2018-2019 mentioning assessment year 2019-20 and 2020- 21. It seems the assessment year of income tax return has been taken into consideration. 28. Taking note of the above material information, we find, prima facie, the respondent – Corporation have committed glaring error in not noticing or knowingly that the 6th respondent failed to comply certain eligibility criteria. In fact, tender should be evaluated in terms of the criteria already incorporated in the tender document, based on which tenders have been received. No modification after expiry of the deadline. Further, the respondent – Corporation should have prepared appropriate table of evaluation of bidders qualification. In other words, it should have prepared a list of all those qualifications and requirements for filing technical and financial criteria specified in the bidding document and against which evidences and documents submitted by bidders appeared to be determined whether each bidder meet the requirement and does not meet and, therefore, failure in any of the technical and financial experience criteria leads to rejection of the bid whereas the respondent – Corporation have not properly prepared a table list of each of the criteria and corresponding documents of the 6th respondent and others. 29. Learned counsel for the petitioner submitted that 6th respondent failed to comply Clause 14 (xiv), Clause 14 (xv) and Clause 14 (xvii) of the NIT. 29. Learned counsel for the petitioner submitted that 6th respondent failed to comply Clause 14 (xiv), Clause 14 (xv) and Clause 14 (xvii) of the NIT. Clause 14 (xiv), Clause 14 (xv) and Clause 14 (xvii) of the NIT reads as under and corresponding eligibility as claimed by the 6th respondent reads as under: – “CWJC No. 13609/2022 Shri Balajee Transport vs. Bihar State Warehousing Corporation (Annexure III) Bihar State Warehousing Corporation invited Online tender through e-tendering process of Beltron from registered contractors in two bid system (Technical Bid & Financial Bid) vide NIT No. TH-01/2021-22 dated 29.11.2021 & related MTF. The terms & conditions of Technical Bid are mentioned in clause 14 of the MTF & Financial Bid in clause 26 of the MTF. Notice Inviting Tender No. - TH-01/2021-22 Dated 29.11.2021 Warehousing center – Narpatganj Centre Grade – B ‘A’ Comparative Chart of Technical Bid S.No. Relevant Terms and conditions of Technical Bid as per NIT-TH-01/2021-22 dated – 29.11.2021. Status of Respondent No.,-6(Manoj Kumar Singh) as per submitted Technical Bid Remarks 14 Annual Turnover–Annual Turnover of minimum Rs. 2.00 Crores of the Tenderer/ Contractor of the last two years (along with Audited Balance Sheet and Profit & Loss A/c and Turnover Certificate with UDIN) of Transport & Handling work of Agriculture Produce/Seeds Fertilizers/ Foodgrains/Coarse grain/ Cement/Sugar/other commodities. Certified copy to be submitted Copy of the Annual Turn- over certificate with UDIN of the Chartered Accountant for financial years 2019-20, 2018-19, 2017-18, 2016-17 & 2015-16 of above Rs. 2.00 crores submitted. 1. As per condition of NIT/MTF annual turnover certificates of last 2 years, were to be submitted. The documents submitted by respondent – 6 contain the annual turnover certificate for 2 financial years 2018-2019 mentioning assessment year 2019-20 and 2020- 21. It seems the assessment year of income tax return has been taken into consideration. 30. The petitioner collected material through RTI while making application on 17.01.2022 and the concerned authority has provided information on 18.01.2022 vide Annexure R – 14 series. These material reveals that the respondent No. 6 failed to fulfill various requisite criterias. 31. It is also submitted by the learned counsel for the petitioner that 6th respondent has filed an affidavit dated 08.11.2021, it relates to declaration that 6th respondent’s kith and kin are not in associate with the respondent – Corporation. These material reveals that the respondent No. 6 failed to fulfill various requisite criterias. 31. It is also submitted by the learned counsel for the petitioner that 6th respondent has filed an affidavit dated 08.11.2021, it relates to declaration that 6th respondent’s kith and kin are not in associate with the respondent – Corporation. Such affidavit is dated 08.11.2021 which is before issuance of NIT dated 02.12.2021 and the same has been entertained by the respondent – Corporation. These contentions have not been answered by the respondent – Corporation and 6th respondent. In other words, other than maintainability of the writ petition, rest of the contentions have not been countered by the respondent – Corporation and 6th respondent. 6th respondent tried to address this Court on Clause 14 (xiv) of the NIT which relates to turnover stating that bank balance and certificate is for three months over a period of one year was required to be taken note of and, therefore, there is no infirmity. Perusal of Clause 14 (xiv), there is no such explanation to the extent how turnover is required to be determined, therefore, the above contention of the 6th respondent is liable to be rejected. 32. Learned counsel for the petitioner submitted that the present matter is covered by earlier decision in the case of Naveen Kumar Singh vs. The State of Bihar & Ors. passed in C.W.J.C. No. 13501 of 2022. He relied upon paragraph Nos. 4 and 7 cited supra. The aforementioned decision assist the petitioner’s case in the light of paragraph Nos. 4 and 7 cited at paragraph No. 9 to this order. 33. Learned counsel for the petitioner submitted that in the light of violation of Clause 14 of the NIT by the 6th respondent, the respondent – Corporation should not have entertained his bid and it should have been rejected at threshold for want of eligibility criteria. On the other hand, they have favoured him even though material information filed by the 6th respondent while bidding are not in terms of various Sub-clauses of 14 to NIT. The respondent – Corporation have to invoke Clause 20 of the NIT. Clause 20 of the NIT reads as under: – 34. On the other hand, they have favoured him even though material information filed by the 6th respondent while bidding are not in terms of various Sub-clauses of 14 to NIT. The respondent – Corporation have to invoke Clause 20 of the NIT. Clause 20 of the NIT reads as under: – 34. Moreover, Apex Court in the case of National High Speed Rail Corporation Limited vs. Montecarlo Ltd. and another reported in (2022) 6 SCC 401 , Para 29 it is held as under: – “29. Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers of judicial review should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? And (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226.” 34.1. In the present case, it is a clear case of arbitrary exercise of power by the Corporation insofar as ignoring the eligibility criteria of the 6th respondent and award of contract in his favour. Therefore, the present writ has been entertained and interfered for the impugned action of the respondent – Corporation. 35. Learned counsel for the 6th respondent submitted that the subject matter of work order is up to the month of November, 2023 and respondent – Corporation would proceeded for a fresh tender, therefore, the work shall not be stalled. The same cannot be appreciated for the reasons that the 6th respondent has mislead the respondent – Corporation in not furnishing eligibility criteria materials and the same has been ignored by the respondent – Corporation and awarded contract and favoured 6th respondent with work order. Hence the aforementioned contention of the 6th respondent stands rejected. 36. The same cannot be appreciated for the reasons that the 6th respondent has mislead the respondent – Corporation in not furnishing eligibility criteria materials and the same has been ignored by the respondent – Corporation and awarded contract and favoured 6th respondent with work order. Hence the aforementioned contention of the 6th respondent stands rejected. 36. In the light of these facts and circumstances, this Court is constrained to hold that work order allotted by the respondent – Corporation in favour of 6th respondent is not only illegal and the same is arbitrary exercise of power, which is contrary to Clause 14 (xiv), Clause 14 (xv) and Clause 14 (xvii) of the NIT and Clause 20 of the NIT dated 02.12.2021. Therefore, this Court has no other option but to set aside work order dated 28.01.2022 issued by the respondent – Corporation in favour of 6th respondent. Authorities shall call for a fresh tender notice for the balance work, if any and are free to initiate necessary action against 6th respondent under Clause 20 of the NIT. Further, competent authority is hereby directed to take action against officials of the Respondent – Corporation for ignoring the eligibility of the respective bidder or in correct assessment of eligibility of a bidder/s. 37. Imposition of cost is warranted in the present matter, since respondent – Corporation out of the way favoured 6th respondent despite the fact that he failed to meet the eligibility criteria cited supra, in the light of Apex Court decision in the case of Uflex Limited vs. Government of Tamilnadu and Others reported in (2022) 1 SCC 165 , paragraph Nos. 53 to 62 reads as under: – “Costs: 53. The costs following cause is a principle which is followed in most countries. There seems to be often a hesitancy in our judicial system to impose costs, presuming as if it is a reflection on the counsel. This is not the correct approach. In a tussle for enforcement of rights against a State different principle apply but in commercial matters costs must follow the cause. 54. The aspect of awarding the costs has received consideration of the Law Commission of India in its Report No. 240, specifically in relation to civil litigation. This is not the correct approach. In a tussle for enforcement of rights against a State different principle apply but in commercial matters costs must follow the cause. 54. The aspect of awarding the costs has received consideration of the Law Commission of India in its Report No. 240, specifically in relation to civil litigation. The trigger for this were the observations of the Supreme Court in Ashok Kumar Mittal vs. Ram Kumar Gupta [Ashok Kumar Mittal vs. Ram Kumar Gupta, (2009) 2 SCC 656 : (2009) 1 SCC (Cri) 836] and Vinod Seth vs. Devinder Bajaj [Vinod Seth vs. Devinder Bajaj, (2010) 8 SCC 1 : (2010) 3 SCC (Civ) 212] . The judicial pronouncements took note of the levying meagre costs in civil matters which did not act as a deterrent to vexatious or luxury litigation borne out of ego or greed or resorted to as a “buying time” tactic. These two judicial pronouncements were followed in Sanjeev Kumar Jain vs. Raghubir Saran Charitable Trust [Sanjeev Kumar Jain vs. Raghubir Saran Charitable Trust, (2012) 1 SCC 455 : (2012) 1 SCC (Civ) 275] . In the said proceeding the Law Commission also presented its views. It is in that context that this Court observed that appropriate changes in the provisions relating to costs contained in the Report of the Law Commission of India should be followed up by Parliament and the respective High Courts. 55. We may note that the common thread running through all these three cases is the reiteration of salutary principles : (i) costs should ordinarily follow the event; (ii) realistic costs ought to be awarded keeping in view the everincreasing litigation expenses; and (iii) the costs should serve the purpose of curbing frivolous and vexatious litigation. [ Report No. 240 of the Law Commission of India.] 56. We may note that this endeavour in India is not unique to our country and in a way adopts the principle prevalent in England of costs following the event. The position may be somewhat different in the United States but then there are different principles applicable where champerty is prevalent. No doubt in most of the countries like India the discretion is with the court. There has to be a proportionality to the costs and if they are unreasonable, the doubt would be resolved in favour of the paying party [UK Civil Procedure Rule 44.2.] . No doubt in most of the countries like India the discretion is with the court. There has to be a proportionality to the costs and if they are unreasonable, the doubt would be resolved in favour of the paying party [UK Civil Procedure Rule 44.2.] . As per Halsbury's Laws of England, the discretion to award costs must be exercised judicially and in accordance with reason and justice. [ Vol. 10, 4th Edn. (Para 15).] The following principles have been set out therein: “In deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including: (i) The conduct of all the parties; (ii) Whether a party has succeeded on part of his case, even if he has not been wholly successful; and (iii) Any payment into court or admissible offer to settle made by a party which is drawn to the court's attention. The conduct of the parties includes: (a) Conduct before, as well as during, the proceedings and in particular the extent to which the parties followed any relevant pre-action protocol; (b) Whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; (c) The manner in which a party has pursued or defended his case or a particular allegation or issue; and (d) Whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.” [ 10th Vol. 4th Edn. (Para 17).] 57. We may add that similar principles are followed in Australia, Hong Kong and Canada largely based on the common law principle. In fact in Canada, the Manitoba Law Commission Report analysed the “Costs Awards in Civil Litigation” and referred to six broad goals as under: (a) indemnification – successful litigants ought to at least be partially indemnified against their legal costs; (b) deterrence – potential litigants should carefully assess the merits of the claim and should refrain from taking any unnecessary legal actions; (c) rules should be made decipherable and simple to understand; (d) early settlement of disputes should be encouraged; (e) the costs regime should facilitate access to justice; and (f) there should be flexibility in rules to ensure that justice can be done. [ Report No. 240 of the Law Commission of India.] 58. [ Report No. 240 of the Law Commission of India.] 58. We have set forth the aforesaid so that there is appreciation of the principles that in carrying on commercial litigation, parties must weigh the commercial interests, which would include the consequences of the matter not receiving favourable consideration by the courts. Mindless appeals should not be the rule. We are conscious that in the given facts of the case the respondents have succeeded before the Division Bench though they failed before the learned Single Judge. Suffice to say that all the parties before us are financially strong and took a commercial decision to carry this legal battle right up to this Court. They must, thus, face the consequences and costs of success or failure in the present proceedings. 59. The best reflection of what costs have been incurred is what the parties have paid towards the counsel fee and out-of-pocket expenses. The present proceedings do arise from a writ proceeding under Article 226 of the Constitution but it is really a commercial dispute. Thus, the failing party cannot hide behind the veneer of the present dispute being in the nature of a writ proceeding. The tender jurisdiction was created for scrutiny of commercial matters and, thus, where continuously parties seek to challenge award of tenders, we are of the view that the succeeding party must get costs and the party which loses must pay costs. This was really a battle between two commercial entities on one side seeking to get set aside an award of a tender to two other entities. What else would be commercial interest! 60. It is with the aforesaid objective that we had asked the parties to file their bill of costs vide order dated 17.8.2021 [Uflex Ltd. vs. State of T.N., 2021 SCC OnLine SC 861] . The objective was to bring forth this principle into force by quantifying actual costs for the succeeding party. 61. We have scrutinised the bill of fee and costs. We are inclined to allow actual costs. However, we have modulated the costs insofar as the appellant is concerned to the extent of the indicated amount of the Advocate-on-Record and allow 50% of the same. The total costs, thus, payable to the petitioner/appellant would be Rs 23,25,750 (Rupees twenty-three lakh twenty-five thousand seven hundred fifty only). We are inclined to allow actual costs. However, we have modulated the costs insofar as the appellant is concerned to the extent of the indicated amount of the Advocate-on-Record and allow 50% of the same. The total costs, thus, payable to the petitioner/appellant would be Rs 23,25,750 (Rupees twenty-three lakh twenty-five thousand seven hundred fifty only). The State Government cannot be left behind so far as their compensation of costs in defending such a litigation is concerned and we, thus, allow the costs of Rs 7,58,000 (Rupees seven lakh fifty-eight thousand only). 62. The costs be accordingly paid within a period of four weeks by Kumbhat and Alpha in equal share to the two parties as aforesaid.” 37.1. Therefore, Cost of Rs. 2 lakhs is imposed on respondent – Corporation and 6th respondent. Each of the above respondents bear the cost of Rs. 1 lakh and pay to the petitioner within a period of eight weeks from today. 38. Accordingly, writ petition is allowed to the extent indicated above. Consequently miscellaneous petition pending, if any, stands disposed of.